Federal Register Vol. 80, No.202,

Federal Register Volume 80, Issue 202 (October 20, 2015)

Page Range63409-63665
FR Document

80_FR_202
Current View
Page and SubjectPDF
80 FR 63663 - Continuation of the National Emergency With Respect to Significant Narcotics Traffickers Centered in ColombiaPDF
80 FR 63591 - National Science Board; Sunshine Act Meetings; NoticePDF
80 FR 63626 - Accentia Biopharmaceuticals, Inc. and Biostem U.S. Corp., Order of Suspension of TradingPDF
80 FR 63601 - Life Care Medical Devices Ltd., and New Leaf Brands, Inc.; Order of Suspension of TradingPDF
80 FR 63624 - Sunshine Act MeetingPDF
80 FR 63477 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Reopening of the Comment PeriodPDF
80 FR 63533 - Foreign-Trade Zone (FTZ) 183-Austin, Texas; Notification of Proposed Production Activity; Flextronics America, LLC (Automatic Data Processing Machines); Austin, TexasPDF
80 FR 63535 - Supercalendered Paper From Canada: Final Affirmative Countervailing Duty DeterminationPDF
80 FR 63583 - Notice of Proposed Withdrawal; Sagebrush Focal Areas; Idaho, Montana, Nevada, Oregon, Utah, and Wyoming and Notice of Intent To Prepare an Environmental Impact StatementPDF
80 FR 63533 - Foreign-Trade Zone 142-Salem/Millville, New Jersey; Application for Subzone; Nine West Holdings, Inc.; West Deptford, New JerseyPDF
80 FR 63562 - Privacy Act of 1974; System of Records NoticePDF
80 FR 63635 - Advisory Committee on Public-Private Partnerships; Notice of the Intent To Establish an Advisory CommitteePDF
80 FR 63478 - Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings-Borrower DefensesPDF
80 FR 63504 - Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012PDF
80 FR 63523 - First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012PDF
80 FR 63583 - Acceptance of Retrocession of Jurisdiction for the Yakama NationPDF
80 FR 63583 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, COPDF
80 FR 63579 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; National Urban Search and Rescue Response SystemPDF
80 FR 63555 - Statement of Organization, Functions, and Delegations of AuthorityPDF
80 FR 63580 - Cahaba River National Wildlife Refuge, ALPDF
80 FR 63585 - Information Collection Activities: Safety and Environmental Management Systems (SEMS); Submitted for Office of Management and Budget (OMB) Review; Comment RequestPDF
80 FR 63576 - Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Entry Type 52 and Certain Other Modes of TransportationPDF
80 FR 63428 - Drawbridge Operation Regulation; Arthur Kill, Staten Island, New YorkPDF
80 FR 63480 - Removing Net Worth Requirement From Health Care EnrollmentPDF
80 FR 63502 - Census Scientific Advisory CommitteePDF
80 FR 63561 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
80 FR 63537 - Final Redetermination Pursuant to Court Remand, Wheatland Tube Co. v. United StatesPDF
80 FR 63545 - Agency Information Collection Activities; Comment Request; Integrated Postsecondary Education Data System (IPEDS) 2015-2016 Pension Liabilities UpdatePDF
80 FR 63553 - Board of Scientific Counselors Sustainable and Healthy Communities Subcommittee; Notification of Public Teleconference MeetingPDF
80 FR 63552 - Reopening of Request for Scientific Views on the Draft Aquatic Life Ambient Water Quality Criterion for Selenium-Freshwater 2015PDF
80 FR 63590 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
80 FR 63635 - Petition for Waiver of CompliancePDF
80 FR 63638 - Open Meeting of the Federal Advisory Committee on InsurancePDF
80 FR 63409 - Hearings on Challenges to the Immediate Effectiveness of OrdersPDF
80 FR 63504 - Performance Review Board MembershipPDF
80 FR 63534 - Membership of the Bureau of Industry and Security Performance Review BoardPDF
80 FR 63503 - Membership of the Economic Development Administration Performance Review BoardPDF
80 FR 63485 - Federal Acquisition Regulation: Revision to Standard Forms for BondsPDF
80 FR 63601 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Rule 3.20, Influencing or Rewarding Employees of Others, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the RecipientPDF
80 FR 63632 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 3.22, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient, and Renaming the Rule “Influencing or Rewarding Employees of Others”PDF
80 FR 63629 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Rule 3.20, Influencing or Rewarding Employees of Others, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the RecipientPDF
80 FR 63624 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 3.22, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient, and Renaming the Rule “Influencing or Rewarding Employees of Others”PDF
80 FR 63535 - Membership of the International Trade Administration Performance Review BoardPDF
80 FR 63541 - Membership of the National Telecommunications and Information Administration's Performance Review BoardPDF
80 FR 63543 - Patent Public Advisory Committee Public Hearing on the Proposed Patent Fee SchedulePDF
80 FR 63589 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement, With Change, of a Previously Approved Collection for Which Approval Has Expired: Research To Support the National Crime Victimization Survey (NCVS)PDF
80 FR 63542 - Trademark Public Advisory Committee Public Hearing on the Proposed Trademark Fee SchedulePDF
80 FR 63590 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Leased/Charter/Contract Personnel Expedited Clearance RequestPDF
80 FR 63591 - Notice of Intent To Grant a Partially Exclusive LicensePDF
80 FR 63554 - Medicare Program; Request for Nominations for Members for the Medicare Evidence Development & Coverage Advisory CommitteePDF
80 FR 63484 - Medicare Program; Request for Information Regarding Implementation of the Merit Based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment ModelsPDF
80 FR 63545 - Defense Science Board; Notice of Advisory Committee MeetingsPDF
80 FR 63541 - Submission for OMB Review; Comment RequestPDF
80 FR 63573 - National Human Genome Research Institute; Notice of Closed MeetingsPDF
80 FR 63565 - National Human Genome Research Institute; Notice of Closed MeetingPDF
80 FR 63570 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingsPDF
80 FR 63572 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingPDF
80 FR 63571 - National Institute of Mental Health; Amended Notice of MeetingPDF
80 FR 63566 - National Human Genome Research Institute; Notice of Closed MeetingsPDF
80 FR 63575 - National Human Genome Research Institute; Notice of Closed MeetingsPDF
80 FR 63565 - National Human Genome Research Institute; Notice of Closed MeetingsPDF
80 FR 63573 - National Institute of Dental & Craniofacial Research; Notice of Closed MeetingPDF
80 FR 63571 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
80 FR 63574 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
80 FR 63572 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 63574 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 63565 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
80 FR 63565 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
80 FR 63482 - Periodic ReportingPDF
80 FR 63592 - New Postal ProductPDF
80 FR 63547 - Notice of Staff Attendance at Southwest Power Pool Regional Entity Trustee, Regional State Committee, Members' and Board of Directors' MeetingsPDF
80 FR 63546 - Supplemental Notice of Technical ConferencePDF
80 FR 63551 - Cameron LNG, LLC; Notice of ApplicationPDF
80 FR 63548 - GB Energy Park, LLC; Notice of Application Tendered for Filing with the Commission and Soliciting Additional Study RequestsPDF
80 FR 63550 - Notice of Cultural Resource MeetingPDF
80 FR 63551 - Notice of Revised Restricted Service List for a Programmatic Agreement for Managing Properties Included in or Eligible for Inclusion in the National Register of Historic PlacesPDF
80 FR 63547 - NRG Power Marketing LLC v. Midcontinent Independent System Operator, Inc.; Notice of ComplaintPDF
80 FR 63549 - Crescent Point Energy U.S. Corp., Eagle Rock Exploration Ltd.; Notice of ApplicationPDF
80 FR 63539 - Federal Information Processing Standard (FIPS) 186-4, Digital Signature Standard; Request for Comments on the NIST-Recommended Elliptic CurvesPDF
80 FR 63575 - Automated Commercial Environment (ACE) Export Manifest for Vessel Cargo Test; CorrectionPDF
80 FR 63634 - South Carolina Disaster Number SC-00031PDF
80 FR 63635 - South Carolina Disaster Number SC-00031PDF
80 FR 63634 - California Disaster #CA-00240PDF
80 FR 63498 - Request for Proposals: 2016 Wood Innovations Funding OpportunityPDF
80 FR 63579 - Agency Information Collection Activities: Notice of Appeal of Decision Under Section 210 or 245A, Form I-694; Revision of a Currently Approved Collection Title of the Information CollectionPDF
80 FR 63501 - Submission for OMB Review; Comment RequestPDF
80 FR 63502 - Submission for OMB Review; Comment RequestPDF
80 FR 63636 - Agency Information Collection Activities; Proposed Revision; Comment Request; Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions With Total Consolidated Assets of $10 Billion to $50 Billion Under the Dodd-Frank Wall Street Reform and Consumer Protection ActPDF
80 FR 63534 - Environmental Technologies Trade Advisory Committee Public MeetingPDF
80 FR 63559 - Advisory Committee on Heritable Disorders in Newborns and Children; Notice of MeetingPDF
80 FR 63558 - Advisory Committee on Organ Transplantation; Notice of MeetingPDF
80 FR 63560 - Agency Information Collection Activities: Proposed Collection: Public Comment RequestPDF
80 FR 63593 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Amend the Fees SchedulePDF
80 FR 63598 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to End of Week/End of Month Expirations Pilot ProgramPDF
80 FR 63600 - Submission for OMB Review; Comment RequestPDF
80 FR 63603 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend FINRA Rule 4210 (Margin Requirements) To Establish Margin Requirements for the TBA MarketPDF
80 FR 63621 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc.PDF
80 FR 63595 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide a Web-Based Delivery Method for Completing the Regulatory Element of the Continuing Education Requirements Pursuant to Rule G-3(i)(i)PDF
80 FR 63627 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Mini OptionsPDF
80 FR 63628 - Submission for OMB Review; Comment RequestPDF
80 FR 63554 - Labor-Management Relations Information Collection RequestsPDF
80 FR 63593 - International Product Change-Global Expedited Package Services-Non-Published RatesPDF
80 FR 63593 - Product Change-Priority Mail Negotiated Service AgreementPDF
80 FR 63498 - Submission for OMB Review; Comment RequestPDF
80 FR 63544 - Agency Information Collection Activities Under OMB ReviewPDF
80 FR 63588 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection National Standards To Prevent, Detect, and Respond to Prison RapePDF
80 FR 63572 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingPDF
80 FR 63571 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
80 FR 63564 - National Center for Complementary & Integrative Health; Notice of Closed MeetingPDF
80 FR 63566 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 63573 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingPDF
80 FR 63473 - Proposed Amendment of Air Traffic Service (ATS) Routes; Southwest OklahomaPDF
80 FR 63503 - Submission for OMB Review; Comment RequestPDF
80 FR 63474 - Space FlightPDF
80 FR 63567 - Announcement of Requirements and Registration for the Open Science PrizePDF
80 FR 63639 - Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; California; South Coast Moderate Area Plan and Reclassification as Serious Nonattainment for the 2006 PM2.5PDF
80 FR 63451 - Air Plan Approval; Michigan; 2006 PM2.PDF
80 FR 63483 - Air Plan Approval; Michigan; 2006 PM2.5PDF
80 FR 63431 - Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest ProvisionsPDF
80 FR 63483 - Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest ProvisionsPDF
80 FR 63429 - Clean Air Act Redesignation Substitute for the Houston-Galveston-Brazoria 1-Hour Ozone Nonattainment Area; TexasPDF
80 FR 63426 - Amendment of Class D Airspace and Revocation of Class E Airspace; Columbus, Ohio State University Airport, OH, and Amendment of Class E Airspace; Columbus, OHPDF
80 FR 63425 - Establishment of Class E Airspace; Wakeeney, KSPDF
80 FR 63420 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
80 FR 63636 - Reports, Forms and Recordkeeping Requirements Agency Information Collection Activity Under OMB ReviewPDF
80 FR 63422 - Airworthiness Directives; Various Sikorsky-Manufactured Transport and Restricted Category HelicoptersPDF
80 FR 63436 - Air Plan Approval; Minnesota; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2PDF
80 FR 63454 - Volunteers in Service to AmericaPDF
80 FR 63427 - Privacy Act Systems of RecordsPDF

Issue

80 202 Tuesday, October 20, 2015 Contents Agriculture Agriculture Department See

Economic Research Service

See

Forest Service

See

National Agricultural Statistics Service

See

Rural Business-Cooperative Service

Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Safety and Environmental Management Systems, 63585-63588 2015-26613 Census Bureau Census Bureau NOTICES Meetings: Census Scientific Advisory Committee, 63502-63503 2015-26605 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program: Request for Information Regarding Implementation of the Merit Based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models, 63484-63485 2015-26568 NOTICES Medicare Program: Request for Nominations for Members for the Medicare Evidence Development and Coverage Advisory Committee, 63554-63555 2015-26569 Children Children and Families Administration NOTICES Statement of Organization, Functions, and Delegations of Authority, 63555-63558 2015-26615 Coast Guard Coast Guard RULES Drawbridge Operations: Arthur Kill, Staten Island, New York, 63428-63429 2015-26609 Commerce Commerce Department See

Census Bureau

See

Economic Development Administration

See

Economics and Statistics Administration

See

First Responder Network Authority

See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

See

Patent and Trademark Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63503 2015-26495
Commodity Futures Commodity Futures Trading Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63544-63545 2015-26507 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions with Total Consolidated Assets of $10 Billion to $50 Billion under the Dodd-Frank Wall Street Reform and Consumer Protection Act, 63636-63638 2015-26527 Corporation Corporation for National and Community Service RULES Volunteers in Service to America, 63454-63472 2015-25790 Defense Department Defense Department PROPOSED RULES Federal Acquisition Regulations: Standard Forms for Bonds; Revisions, 63485-63497 2015-26581 NOTICES Meetings: Defense Science Board, 63545 2015-26567 Economic Development Economic Development Administration NOTICES Performance Review Board Membership, 63503-63504 2015-26582 Economic Research Economic Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63498 2015-26510 Economics Statistics Economics and Statistics Administration NOTICES Performance Review Board Membership, 63504 2015-26586 Education Department Education Department PROPOSED RULES Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings--Borrower Defenses, 63478-63480 2015-26626 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Integrated Postsecondary Education Data System 2015-2016 Pension Liabilities Update, 63545-63546 2015-26598 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Michigan; 2006 PM2.5 and 2008 Lead NAAQS State Board Infrastructure SIP Requirements, 63451-63454 2015-26312 Minnesota; Infrastructure SIP Requirements for the Ozone, NO2, SO2, and PM2.5 NAAQS, 63436-63451 2015-25969 New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions, 63431-63435 2015-26306 Clean Air Act Redesignation Substitutes: Houston-Galveston-Brazoria 1-hour Ozone Nonattainment Area; TX, 63429-63431 2015-26302 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Designation of Areas for Air Quality Planning Purposes; CA; South Coast Moderate Area Plan and Reclassification as Serious Nonattainment for the 2006 PM2.5 NAAQS, 63640-63662 2015-26315 Michigan; 2006 PM2.5 and 2008 Lead NAAQS State Board Infrastructure SIP Requirements, 63483 2015-26310 New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions, 63483-63484 2015-26303 NOTICES Meetings: Board of Scientific Counselors Sustainable and Healthy Communities Subcommittee, 63553-63554 2015-26597 Requests for Scientific Views: Draft Aquatic Life Ambient Water Quality Criterion for Selenium—Freshwater 2015; Reopening, 63552-63553 2015-26595 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bombardier, Inc. Airplanes, 63420-63422 2015-26218 Various Sikorsky-Manufactured Transport and Restricted Category Helicopters, 63422-63425 2015-25976 Amendment of Class D and E Airspace; Revocation of Class E Airspace: Columbus, Ohio State University Airport, OH; Columbus, OH, 63426-63427 2015-26280 Establishment of Class E Airspace: Wakeeney, KS, 63425-63426 2015-26276 PROPOSED RULES Proposed Amendment of Air Traffic Service (ATS) Routes: Southwest Oklahoma, 63473-63474 2015-26498 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Urban Search and Rescue Response System, 63579 2015-26618 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Cameron LNG, LLC, 63551-63552 2015-26545 Crescent Point Energy U.S. Corp.; Eagle Rock Exploration Ltd., 63549-63550 2015-26540 GB Energy Park, LLC, 63548-63549 2015-26544 Complaints: NRG Power Marketing, LLC v. Midcontinent Independent System Operator, Inc., 63547 2015-26541 Meetings: Beverly Lock and Dam Water Power, et al., 63550-63551 2015-26543 Public Citizen, Inc. v. Midcontinent Independent System Operator, Inc.; et al.; Technical Conference, 63546-63547 2015-26546 Restricted Service Lists: Beverly Lock and Dam Water Power, et al., 63551 2015-26542 Staff Attendances, 63547-63548 2015-26547 Federal Mediation Federal Mediation and Conciliation Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Labor-Management Relations, 63554 2015-26513 Federal Railroad Federal Railroad Administration NOTICES Petition for Waiver of Compliance, 63635-63636 2015-26592 FIRSTNET First Responder Network Authority NOTICES Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012, 63504-63533 2015-26621 2015-26622 Fish Fish and Wildlife Service NOTICES Environmental Assessments; Availability, etc.: Cahaba River National Wildlife Refuge, AL, 63580-63583 2015-26614 Food and Drug Food and Drug Administration PROPOSED RULES Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 63477-63478 2015-26636 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Flextronics America, LLC, Foreign-Trade Zone 183, Austin, TX, 63533-63534 2015-26635 Subzone Applications: Nine West Holdings, Inc., Foreign-Trade Zone 142, Salem/Millville, NJ, 63533 2015-26632 Forest Forest Service NOTICES Requests for Proposals: 2016 Wood Innovations Funding Opportunity, 63498-63501 2015-26533 General Services General Services Administration PROPOSED RULES Federal Acquisition Regulations: Standard Forms for Bonds; Revisions, 63485-63497 2015-26581 Health and Human Health and Human Services Department 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

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63561-63562 2015-26604 Privacy Act; Systems of Records, 63562-63564 2015-26631
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63560-63561 2015-26522 Meetings: Advisory Committee on Heritable Disorders in Newborns and Children, 63559-63560 2015-26524 Advisory Committee on Organ Transplantation, 63558-63559 2015-26523 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

Indian Affairs Indian Affairs Bureau NOTICES Acceptance of Retrocession of Jurisdiction for the Yakama Nation, 63583 2015-26620 Industry Industry and Security Bureau NOTICES Performance Review Board Membership, 63534 2015-26583 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Supercalendered Paper from Canada, 63535-63537 2015-26634 Final Redeterminations Pursuant to Court Remand: Wheatland Tube Co. v. United States, 63537-63539 2015-26601 Meetings: Environmental Technologies Trade Advisory Committee, 63534-63535 2015-26526 Performance Review Board Membership, 63535 2015-26576 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Leased/Charter/Contract Personnel Expedited Clearance Request, 63590-63591 2015-26571 National Standards to Prevent, Detect, and Respond to Prison Rape, 63588-63589 2015-26506 Research to Support the National Crime Victimization Survey, 63589-63590 2015-26573 Proposed Consent Decrees under the Clean Water Act, 63590 2015-26593 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Public Land Withdrawals, Sagebrush Focal Areas; Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, 63583 2015-26633 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63636 2015-26206 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulations: Standard Forms for Bonds; Revisions, 63485-63497 2015-26581 Space Flight, 63474-63477 2015-26475 NOTICES Exclusive Licenses, 63591 2015-26570 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63501-63502 2015-26529 National Institute National Institute of Standards and Technology NOTICES Requests for Comments: Federal Information Processing Standard, Digital Signature Standard Recommended Elliptic Curves, 63539-63541 2015-26539 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 63566, 63572, 63574 2015-26502 2015-26552 2015-26553 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 63572 2015-26505 National Center for Complementary and Integrative Health, 63564-63565 2015-26503 National Heart, Lung, and Blood Institute, 63571-63572 2015-26504 National Human Genome Research Institute, 63565-63567, 63573, 63575 2015-26557 2015-26558 2015-26559 2015-26564 2015-26565 National Institute of Allergy and Infectious Diseases, 63571, 63574-63575 2015-26554 2015-26555 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 63570-63573 2015-26562 2015-26563 National Institute of Dental and Craniofacial Research, 63573 2015-26556 National Institute of Diabetes and Digestive and Kidney Diseases, 63573-63574 2015-26501 National Institute of General Medical Sciences, 63565-63566 2015-26550 National Institute of Mental Health; Amendments, 63571 2015-26560 2015-26561 National Institute on Alcohol Abuse and Alcoholism, 63565 2015-26551 The Open Science Prize Requirements and Registration, 63567-63570 2015-26392 National Intelligence National Intelligence, Office of the National Director RULES Privacy Act; Systems of Records, 63427-63428 2015-24398 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63541 2015-26508 2015-26566 National Park National Park Service NOTICES Inventory Completions: History Colorado, formerly Colorado Historical Society, Denver, CO, 63583-63585 2015-26619 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 63591-63592 2015-26768 National Telecommunications National Telecommunications and Information Administration NOTICES Performance Review Board Membership, 63541-63542 2015-26575 Nuclear Regulatory Nuclear Regulatory Commission RULES Hearings on Challenges to the Immediate Effectiveness of Orders, 63409-63420 2015-26590 Patent Patent and Trademark Office NOTICES Hearings: Patent Public Advisory Committee, 63543-63544 2015-26574 Trademark Public Advisory Committee, 63542-63543 2015-26572 Postal Regulatory Postal Regulatory Commission PROPOSED RULES Periodic Reporting, 63482-63483 2015-26549 NOTICES New Postal Products, 63592-63593 2015-26548 Postal Service Postal Service NOTICES International Product Changes: Global Expedited Package Services: Non-Published Rates, 63593 2015-26512 Product Changes: Priority Mail Negotiated Service Agreement, 63593 2015-26511 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Colombia; Continuation of National Emergency With Respect to Narcotics Traffickers (Notice of October 19, 2015), 63663-63665 2015-26846 Rural Business Rural Business-Cooperative Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63502 2015-26528 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63600, 63628-63629 2015-26514 2015-26519 Meetings; Sunshine Act, 63624 2015-26717 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 63621-63624, 63632-63634 2015-26517 2015-26579 BATS Y-Exchange, Inc., 63624-63626 2015-26577 C2 Options Exchange, Inc., 63593-63595 2015-26521 Chicago Board Options Exchange, Inc., 63598-63600 2015-26520 EDGA Exchange, Inc., 63629-63631 2015-26578 EDGX Exchange, Inc., 63601-63603 2015-26580 Financial Industry Regulatory Authority, Inc., 63603-63620 2015-26518 Municipal Securities Rulemaking Board, 63595-63598 2015-26516 The NASDAQ Stock Market, LLC, 63627-63628 2015-26515 Trading Suspension Orders: Accentia Biopharmaceuticals, Inc. and Biostem U.S. Corp., 63626-63627 2015-26722 Life Care Medical Devices Ltd., and New Leaf Brands, Inc., 63601 2015-26718 Small Business Small Business Administration NOTICES Disaster Declarations: California, 63634 2015-26534 South Carolina; Amendment 2, 63635 2015-26535 South Carolina; Amendment 3, 63634 2015-26536 South Carolina; Amendment 4, 63634-63635 2015-26537 State Department State Department NOTICES Committee Establishment: Advisory Committee on Public-Private Partnerships, 63635 2015-26627 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

Maritime Administration

Treasury Treasury Department See

Comptroller of the Currency

NOTICES Meetings: Federal Advisory Committee on Insurance, 63638 2015-26591
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Notice of Appeal of Decision Under Section 210 or 245A, 63579-63580 2015-26531 Customs U.S. Customs and Border Protection NOTICES Automated Commercial Environment Export Manifest for Vessel Cargo Test; Correction, 63575 2015-26538 National Customs Automation Programs: Test Concerning Automated Commercial Environment (ACE) Cargo Release for Entry Type 52 and Certain Other Modes of Transportation, 63576-63579 2015-26610 Veteran Affairs Veterans Affairs Department PROPOSED RULES Removing Net Worth Requirement from Health Care Enrollment, 63480-63482 2015-26606 Separate Parts In This Issue Part II Environmental Protection Agency, 63640-63662 2015-26315 Part III Presidential Documents, 63663-63665 2015-26846 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.

80 202 Tuesday, October 20, 2015 Rules and Regulations NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 150 [NRC-2013-0132] RIN 3150-AJ27 Hearings on Challenges to the Immediate Effectiveness of Orders AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations regarding challenges to the immediate effectiveness of NRC enforcement orders to clarify the burden of proof and to clarify the authority of the presiding officer to order live testimony in resolving these challenges.

DATES:

This final rule is effective on November 19, 2015.

ADDRESSES:

Please refer to Docket ID NRC-2013-0132 when contacting the NRC about the availability of information for this final rule. You may obtain publicly-available information related to this final rule by any of the following methods:

Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0132. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Esther Houseman, Office of the General Counsel, telephone: 301-415-2267, email: [email protected]; or Eric Michel, Office of the General Counsel, telephone: 301-415-1177, email: [email protected]; U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

Executive Summary

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations regarding the issuance of immediately effective orders to clarify the burden of proof in proceedings on challenges to the immediate effectiveness of such orders and the authority of the presiding officer in such proceedings to order live testimony. In NRC enforcement proceedings, the recipient of an order ordinarily may challenge the validity of that order before its terms become effective at a later specified date. However, in certain circumstances, the NRC may issue orders to regulated entities or individuals that are “immediately effective,” meaning the order's terms are effective upon issuance and remain in effect even during the pendency of a challenge. These amendments confirm that the recipient of the immediately effective order has the burden to initiate a challenge regarding the order's immediate effectiveness and present evidence that the order, including the need for immediate effectiveness, is not based on adequate evidence. The amendments also clarify that the NRC staff ultimately bears the burden of persuasion that immediate effectiveness is warranted. Additionally, these amendments confirm that the presiding officer in a challenge to the immediate effectiveness of an order may order live testimony, including cross examination of witnesses, if it will assist in the presiding officer's decision. These are not substantive changes to the agency's enforcement procedures, but rather confirm existing burdens and presiding officer authority.

In this final rule, the Commission is not adopting the previously proposed amendment 1 that would have incorporated the concept of “deliberate ignorance” as an additional basis upon which the NRC could take enforcement action against an individual for violating the rule. The Commission agrees with public commenters' concern that the subjectivity of the deliberate ignorance standard makes it difficult to implement. This difficulty would make the enforcement process more complex and burdensome, and any corresponding benefits would not outweigh these disadvantages. This decision is discussed in more detail in Section IV, “Public Comment Analysis,” of this document.

1 On February 11, 2014, the NRC published the proposed amendments in a proposed rule entitled, “Deliberate Misconduct Rule and Hearings on Challenges to the Immediate Effectiveness of Orders” (79 FR 8097). The NRC changed the title of this final rule to “Hearings on Challenges to the Immediate Effectiveness of Orders” to more clearly reflect that the proposed changes to the Deliberate Misconduct Rule were not adopted.

Table of Contents I. Background II. Discussion III. Opportunities for Public Participation IV. Public Comment Analysis V. Section-by-Section Analysis VI. Regulatory Flexibility Certification VII. Regulatory Analysis VIII. Backfitting and Issue Finality IX. Cumulative Effects of Regulation X. Plain Writing XI. National Environmental Policy Act XII. Paperwork Reduction Act XIII. Congressional Review Act XIV. Compatibility of Agreement State Regulations XV. Voluntary Consensus Standards I. Background

On January 4, 2006, the U.S. Nuclear Regulatory Commission (NRC) issued an immediately effective order to Mr. David Geisen, a former employee at the Davis-Besse Nuclear Power Station, barring him from employment in the nuclear industry for 5 years.2 The order charged Mr. Geisen with deliberate misconduct in contributing to the submission of information to the NRC that he knew was not complete or accurate in material respects. The U.S. Department of Justice (DOJ) later obtained a grand jury indictment against Mr. Geisen on charges under 18 U.S.C. 1001 for submitting false statements to the NRC.3 In the criminal case, the judge gave the jury instructions under the prosecution's two alternative theories: The jury could find Mr. Geisen guilty if he either knew that he was submitting false statements or if he acted with deliberate ignorance of their falsity. The jury found Mr. Geisen guilty on a general verdict; that is, the jury found Mr. Geisen guilty without specifying whether it found Mr. Geisen acted out of actual knowledge or deliberate ignorance. The United States Court of Appeals for the Sixth Circuit upheld Mr. Geisen's conviction on appeal.4

2David Geisen, LBP-09-24, 70 NRC 676 (2009), aff'd, CLI-10-23, 72 NRC 210 (2010).

3United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir. 2010), cert. denied, 131 S. Ct. 1813 (2011), (citing United States v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 2008)).

4Id. at 485-86.

In the parallel NRC enforcement proceeding, brought under the agency's Deliberate Misconduct Rule, § 50.5 of title 10 of the Code of Federal Regulations (10 CFR), Mr. Geisen's criminal conviction prompted the NRC's Atomic Safety and Licensing Board (the Board) to consider whether Mr. Geisen was collaterally estopped 5 from denying the same wrongdoing in the NRC proceeding.6 The Board found and the Commission upheld, on appeal, that collateral estoppel could not be applied because the NRC's Deliberate Misconduct Rule did not include deliberate ignorance and the general verdict in the criminal proceeding did not specify whether the verdict was based on actual knowledge or deliberate ignorance.7

5 Collateral estoppel precludes a defendant convicted in a criminal proceeding from challenging in a subsequent civil proceeding any facts that were necessary for the criminal conviction. Collateral estoppel applies to quasi-judicial proceedings such as enforcement hearings before the NRC. See, e.g., SEC v. Freeman, 290 F.Supp. 2d 401, 405 (S.D.N.Y. 2003) (“It is settled that a party in a civil case may be precluded from relitigating issues adjudicated in a prior criminal proceeding and that the Government may rely on the collateral estoppel effect of the conviction in support of establishing the defendant's liability in the subsequent civil action.”) (citations omitted).

6Geisen, LBP-09-24, 70 NRC at 709-26; see 10 CFR 50.5.

7 The Board stated that “the [NRC] Staff flatly and unmistakably conceded that the `deliberate ignorance' theory is not embraced within the `deliberate misconduct' standard that governs our proceedings.” Geisen, LBP-09-24, 70 NRC at 715 (alteration added). In its decision, the Commission stated “[t]he distinction between the court's `deliberate ignorance' standard and the [NRC's] `deliberate misconduct' standard applied in this case is highly significant, indeed, decisive. The Staff, when moving for collateral estoppel, itself conceded that `the 6th Circuit's deliberate ignorance instruction does not meet the NRC's deliberate misconduct standard'.” Geisen, CLI-10-23, 72 NRC at 251 (emphasis in the original) (alteration added).

The lack of certainty as to the specific basis of the jury's verdict was significant, because if the verdict was based on actual knowledge, the Board could have applied collateral estoppel based on the NRC's identical actual knowledge standard and the same facts in the criminal case.8 However, because the general verdict could have been based on deliberate ignorance, the Board could not apply collateral estoppel, because the NRC does not recognize conduct meeting the deliberate ignorance knowledge standard as deliberate misconduct. The Commission affirmed the Board's decision.9 This outcome shows that the Deliberate Misconduct Rule, as presently written, does not provide for an enforcement action on the basis of deliberate ignorance and the Board cannot apply collateral estoppel where a parallel DOJ criminal prosecution proceeding may be based on a finding of deliberate ignorance.

8Geisen, CLI-10-23, 72 NRC at 249.

9Id. at 254.

In the Staff Requirements Memorandum (SRM) to SECY-10-0074, “David Geisen, NRC Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),” dated September 3, 2010 (ADAMS Accession No. ML102460411), the Commission directed the NRC's Office of the General Counsel (OGC) to conduct a review of three issues: (1) How parallel NRC enforcement actions and DOJ criminal prosecutions affect each other, (2) the issuance of immediately effective enforcement orders in matters that DOJ is also pursuing, and (3) the degree of knowledge required for pursuing violations against individuals for deliberate misconduct. In 2011, OGC conducted the requested review and provided recommendations to the Commission for further consideration. In response, in 2012, the Commission directed OGC to develop a proposed rule that would incorporate the deliberate ignorance standard into the Deliberate Misconduct Rule. As part of this effort, the Commission directed OGC to examine the definitions of deliberate ignorance from all Federal circuit courts to aid in developing the most appropriate definition of this term for the NRC. The Commission also directed OGC to clarify two aspects of the regulations regarding challenges to immediate effectiveness of NRC orders as part of this rulemaking: (1) The burden of proof and (2) the authority of the presiding officer to order live testimony in resolving such a challenge.

This final rule amends 10 CFR 2.202, which governs challenges to, and the presiding officer's review of, the immediate effectiveness of an order. Currently, the Commission may make orders immediately effective under 10 CFR 2.202(a)(5) if it finds that the public health, safety, or interest so requires or if willful conduct caused a violation of the Atomic Energy Act of 1954, as amended (AEA), an NRC regulation, license condition, or previously issued Commission order. This final rule amends the NRC's regulations by clarifying the following: (1) Which party bears the burden of proof in a hearing on a challenge to the immediate effectiveness of an order, and (2) the authority of the presiding officer to call for live testimony in a hearing on a challenge to the immediate effectiveness of an order. In developing these amendments to 10 CFR 2.202, the NRC reviewed the way in which the Board has interpreted the burden of proof in hearings on challenges to the immediate effectiveness of an order. The NRC also reviewed its current regulations and practices regarding the authority of the presiding officer to call for live testimony in hearings on challenges to the immediate effectiveness of an order.

This final rule also makes conforming amendments to 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8. These conforming amendments are necessary because when the NRC first promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a cross reference in 10 CFR 150.2; and, although the NRC listed 10 CFR 71.11, which at the time was the 10 CFR part 70 Deliberate Misconduct Rule, as a cross reference in 10 CFR 150.2, the NRC later redesignated the provision as 10 CFR 71.8 and failed to make a conforming amendment to update 10 CFR 150.2.

As discussed further in the following sections, the Commission is not adopting in this final rule the previously proposed amendment to the Deliberate Misconduct Rule to incorporate the concept of deliberate ignorance as an additional basis upon which the NRC can take enforcement action against an individual for violating the rule.

Immediately Effective Orders

The NRC's procedures to initiate formal enforcement action are found in subpart B of 10 CFR part 2. These regulations include 10 CFR 2.202, “Orders.” An order is a written NRC directive to modify, suspend, or revoke a license; to cease and desist from a given practice or activity; or to take another action as appropriate.10 The Commission's statutory authority to issue an order is Section 161 of the AEA.11 The Commission may issue orders in lieu of or in addition to civil penalties.12 When the Commission determines that the conduct that caused a violation was willful or that the public health, safety, or interest requires immediate action, the Commission may make orders immediately effective, meaning the subject of the order does not have an opportunity for a hearing before the order goes into effect.13 Making enforcement orders immediately effective has been an integral part of 10 CFR 2.202 since 1962, and Section 9(b) of the Administrative Procedure Act (APA), 5 U.S.C. 558(c), expressly authorizes immediately effective orders.

10 10 CFR 2.202(a).

11 42 U.S.C. 2201.

12 Section 2.3.5 of the NRC Enforcement Policy (2013) (ADAMS Accession No. ML13228A199).

13 10 CFR 2.202(b).

On the same day that the Commission published the 1990 proposed Deliberate Misconduct Rule, “Willful Misconduct by Unlicensed Persons,” 14 it also published a related proposed rule, “Revisions to Procedures to Issue Orders,” 15 that would expressly allow the Commission to issue orders to unlicensed persons. The Commission may issue these orders “when such persons have demonstrated that future control over their activities subject to the NRC's jurisdiction is deemed to be necessary or desirable to protect public health and safety or to minimize danger to life or property or to protect the common defense and security.” 16 This proposed rule concerned amendments to 10 CFR 2.202 and other 10 CFR part 2 provisions.17 At the time of these proposed rules, the Commission's regulations only authorized the issuance of an order to a licensee. Therefore, the intent of the 1990 proposed Deliberate Misconduct Rule and its companion proposed rule was to establish a mechanism to issue “an order . . . to an unlicensed person who willfully causes a licensee to be in violation of Commission requirements or whose willful misconduct undermines, or calls into question, the adequate protection of the public health and safety in connection with activities regulated by the NRC under the [AEA].” 18 These proposed changes were adopted, with some modifications, in the 1991 final Deliberate Misconduct Rule.19 Specifically, the 1991 final Deliberate Misconduct Rule amended 10 CFR 2.202 and other provisions of 10 CFR part 2 (10 CFR 2.1, 2.201, 2.204, 2.700, and appendix C), to authorize the issuance of an order to unlicensed persons otherwise subject to the NRC's jurisdiction.

14 55 FR 12374; April 3, 1990.

15 55 FR 12370; April 3, 1990.

16Id. at 12371.

17Id. at 12373-74.

18Id. at 12372.

19 56 FR 40664; August 15, 1991.

On July 5, 1990, the Commission published another proposed rule that would make additional changes to 10 CFR 2.202.20 These additional changes pertained to immediately effective orders. Primarily, the July 5, 1990, proposed rule would have required that challenges to immediately effective orders be heard expeditiously. The statement of considerations for the July 5, 1990, proposed rule noted that “the Commission believes that a proper balance between the private and governmental interests involved is achieved by a hearing conducted on an accelerated basis.” 21 The statement of considerations also stated that a “motion to set aside immediate effectiveness must be based on one or both of the following grounds: The willful misconduct charged is unfounded or the public health, safety or interest does not require the order to be made immediately effective.” 22

20 55 FR 27645.

21Id.

22Id.

In addition, the July 5, 1990, proposed rule provided the following statement regarding the respective burdens of a party filing a motion to challenge the immediate effectiveness of an immediately effective order and of the NRC staff:

The burden of going forward on the immediate effectiveness issue is with the party who moves to set aside the immediate effectiveness provision. The burden of persuasion on the appropriateness of immediate effectiveness is on the NRC staff.23

23Id. at 27646.

After receiving public comments on the July 5, 1990, proposed rule, the Commission published a final rule on May 12, 1992.24 The Commission acknowledged in the May 12, 1992, final rule that “an immediately effective order may cause a person to suffer loss of employment while the order is being adjudicated” but recognized that the effects of health and safety violations are paramount over an individual's right of employment.25 Accordingly, the final rule amended 10 CFR 2.202(c) “to allow early challenges to the immediate effectiveness aspect of immediately effective orders.” 26 The final rule also provided for an expedited hearing on both the merits of the immediately effective order and a challenge to set aside immediate effectiveness. The presiding officer in an immediate effectiveness challenge must dispose of a person's motion to set aside the immediate effectiveness of the order “expeditiously,” generally within 15 days.27 Therefore, the Commission struck a balance between the governmental interests in protecting public health and safety and an interest in fairness by requiring that challenges to immediately effective orders be heard expeditiously.

24 57 FR 20194.

25Id. at 20195.

26Id. at 20194.

27Id. at 20196. See also 10 CFR 2.202(c)(2)(i).

Burden of Going Forward and Burden of Persuasion

In opposing the immediate effectiveness aspect of an order, the party subject to the order, or respondent, must initiate the proceeding by filing affidavits and other evidence that state that the order and the NRC staff's determination that it is necessary to make the order immediately effective “is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.” 28 The respondent's obligation to challenge the order is known as the “burden of going forward.” 29 Section 2.202, however, has been interpreted to mean that the NRC staff bears the “burden of persuasion” to demonstrate that the order itself, and the immediate effectiveness determination, are supported by “adequate evidence.” 30 In a 2005 proceeding, the Board described what the NRC staff must prove, stating,

28 10 CFR 2.202(c)(2)(i).

29United Evaluation Servs, Inc., LBP-02-13, 55 NRC 351, 354 (2002).

30Id.

[T]he staff must satisfy a two-part test: It must demonstrate that adequate evidence—i.e., reliable, probative, and substantial (but not preponderant) evidence—supports a conclusion that (1) the licensee violated a Commission requirement (10 CFR 2.202(a)(1)), and (2) the violation was `willful,' or the violation poses a risk to `the public health, safety, or interest' that requires immediate action (id. § 2.202(a)(5)).31

31Safety Light Corp. (Bloomsburg, Pennsylvania Site), LBP-05-02, 61 NRC 53, 61 (2005) (emphasis in original).

Although Mr. Geisen never challenged the immediate effectiveness of the Commission's order, one of the Board's judges raised the concern that 10 CFR 2.202(c)(2)(i) could be interpreted to place the burden of persuasion on the party subject to the order to show that the order is based on mere suspicion, unfounded allegations, or error.32 This final rule clarifies that the burden of persuasion is the obligation of the NRC staff, not the party subject to the order.

32Geisen, “Additional Views of Judge Farrar,” LBP-09-24, 70 NRC at 801 n.12 (“To succeed under the terms of [10 CFR 2.202(c)(2)(i)], the challenge brought by the Order's target must show that `the order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.' In addition to having the burden on immediate effectiveness, the target is apparently expected to address the merits at that point as well, as is indicated by the next sentence, which requires the challenge to `state with particularity the reasons why the order is not based on adequate evidence' and to `be accompanied by affidavits or other evidence relied on.' 10 CFR 2.202(c)(2)(i). All in 20 days, unless extended. Id. § 2.202(a)(2).”) (emphasis in the original).

Authority of the Presiding Officer to Order Live Testimony

The July 5, 1990, proposed rule's statement of considerations contemplated the possibility of an evidentiary hearing as part of a challenge to immediate effectiveness:

It is expected that the presiding officer normally will decide the question of immediate effectiveness solely on the basis of the order and other filings on the record. The presiding officer may call for oral argument. However, an evidentiary hearing is to be held only if the presiding officer finds the record is inadequate to reach a proper decision on immediate effectiveness. Such a situation is expected to occur only rarely.33

33 55 FR 27645-46.

The May 12, 1992, final rule, however, simply stated that “[t]he presiding officer may call for oral argument but is not required to do so.” 34 Section 2.319 outlines the presiding officer's authority to “conduct a fair and impartial hearing according to law, and to take appropriate action to control the prehearing and hearing process, to avoid delay and maintain order,” including the power to examine witnesses, but this power is not specified in 10 CFR 2.202. This final rule clarifies the presiding officer's authority to order live testimony on challenges to the immediate effectiveness of orders.

34 57 FR at 20196.

II. Discussion Immediately Effective Orders

This rule amends 10 CFR 2.202(c)(2) to clarify that in any challenge to the immediate effectiveness of an order, the NRC staff bears the burden of persuasion and the party challenging the order bears the burden of going forward.35 Specifically, the rule states that the NRC staff must show that (1) adequate evidence supports the grounds for the order and (2) immediate effectiveness is warranted.36

35 The party challenging the order has the obligation to initiate the proceeding, namely, by filing the appropriate motion under 10 CFR 2.202(c)(2)(i). This motion “must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.” 10 CFR 2.202(c)(2)(i).

36 The Administrative Procedure Act provides “[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.” 5 U.S.C. 556(d).

This rule further amends 10 CFR 2.202(c)(2) to confirm the presiding officer's authority to order live testimony, including cross examination of witnesses, in hearings on challenges to the immediate effectiveness of orders if the presiding officer concludes that taking live testimony would assist in its decision on the motion. Similarly, the rule allows any party to the proceeding to file a motion requesting the presiding officer to order live testimony. The amendments allow the NRC staff, in cases where the presiding officer orders live testimony, the option of presenting its response through live testimony rather than a written response made within 5 days of its receipt of the motion. The NRC does not anticipate that permitting the presiding officer to allow live testimony would cause delay, and even if it were to cause delay, public health and safety would not be affected because the immediately effective order would remain in effect throughout the hearing on immediate effectiveness.

The rule also amends 10 CFR 2.202(c)(2) to clarify that the presiding officer shall conduct any live testimony pursuant to its powers in 10 CFR 2.319, except that no subpoenas, discovery, or referred rulings or certified questions to the Commission shall be permitted for this purpose. Finally, the rule amends 10 CFR 2.202(c)(2) by dividing the paragraph into smaller paragraphs, adding a cross reference to 10 CFR 2.202(a)(5) (the regulation that authorizes the Commission to make an order immediately effective), and making other minor edits to improve clarity and readability.

Conforming Amendments

Section 150.2, “Scope,” provides notice to Agreement State licensees conducting activities under reciprocity in areas of NRC jurisdiction that they are subject to the applicable NRC Deliberate Misconduct Rule provisions. When the NRC first promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a cross reference in 10 CFR 150.2. At the time, 10 CFR 150.2 listed 10 CFR 30.10, 40.10, and 70.10 as the Deliberate Misconduct Rule provisions applicable to Agreement State licensees conducting activities under reciprocity in areas of NRC jurisdiction.

On January 13, 1998, the NRC revised its regulations to extend the Deliberate Misconduct Rule to include applicants for or holders of certificates of compliance issued under 10 CFR part 71, “Packaging and Transportation of Radioactive Material.” 37 This rule designated the 10 CFR part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11.38 The NRC made a conforming amendment to 10 CFR 150.2 by listing 10 CFR 71.11 as a cross reference.39 The NRC later redesignated the provision as 10 CFR 71.8 40 but did not make a conforming amendment to update the cross reference in 10 CFR 150.2. The current 10 CFR 150.2 rule text still lists the 10 CFR part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11.

37 63 FR 1890.

38Id. at 1899.

39Id. at 1901.

40 In a 2004 rulemaking amending its regulations concerning the packaging and transport of radioactive materials, the NRC renumbered 10 CFR 71.11 to 10 CFR 71.8 (69 FR 3698, 3764, 3790; January 26, 2004).

This rule makes conforming amendments to 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and deleting the cross reference to 10 CFR 71.11 and replacing it with a cross reference to 10 CFR 71.8.

III. Opportunities for Public Participation

The proposed rule was published on February 11, 2014, for a 90-day public comment period that ended on May 12, 2014.41

41 79 FR 8097.

IV. Public Comment Analysis

The NRC received comments from six commenters: The Nuclear Energy Institute, Inc. (NEI), the National Association of Criminal Defense Lawyers (NACDL), STARS Alliance LLC (STARS), Hogan Lovells LLP (Hogan Lovells), Troutman Sanders LLP (Troutman Sanders), and an individual, Mr. James Lieberman. All six provided comments on the proposed amendment to the Deliberate Misconduct Rule incorporating the concept of deliberate ignorance. One commenter, Mr. Lieberman, supported the amendment. The other five commenters opposed the amendment. All comments are summarized in this section, by topic. Additionally, two commenters (NEI and STARS) provided comments on the proposed amendments to 10 CFR 2.202(c) concerning the immediate effectiveness of orders. The NRC received no comments on the proposed amendments to 10 CFR 150.2.

Comments Concerning Deliberate Ignorance Comment 1: Confusion and Practical Difficulties Associated With Distinguishing Between Deliberate Ignorance and Carelessness, Recklessness, or Negligence

The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders commented that deliberate ignorance is an inherently vague and highly subjective criminal knowledge standard and that distinguishing deliberate ignorance from other, non-deliberate states of mind, such as carelessness, recklessness, or negligence, would be difficult in practice. These commenters expressed concern that adoption of the deliberate ignorance standard into the NRC's regulations may confuse NRC staff and could possibly result in enforcement action against individuals who do not commit deliberate violations.

Specifically, Hogan Lovells expressed concern that NRC staff would have difficulty assessing what an individual “subjectively believed” and whether the individual deliberately took action to “avoid learning” a material fact. The NEI commented that the “complex, legalistic deliberate ignorance standard would be difficult to apply and would promote unnecessary and wasteful litigation without a counterbalancing benefit to the public.” The NACDL expressed concern that the “theoretical distinction between a person who is deliberately ignorant and one who is reckless or negligent” would be “almost impossible to maintain” in the NRC enforcement setting. As additional support for these concerns, NEI, STARS, and Hogan Lovells stated that legal scholars and courts, including the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), have cautioned that a “deliberate ignorance” jury instruction in Federal criminal trials should only be used sparingly because of the heightened risk that defendants may be inadvertently or impermissibly convicted on a lesser basis than deliberate ignorance, such as recklessness or negligence. The NACDL, NEI, and Troutman Sanders also argued that in the majority of cases evidence used to support a finding of deliberate ignorance would also serve as circumstantial evidence of actual knowledge, thereby further diminishing the utility of the proposed rule.

One commenter, Mr. Lieberman, expressed support for the incorporation of the deliberate ignorance standard because the text of the rule “clearly” distinguished deliberate ignorance from persons who act with recklessness or careless indifference. Mr. Lieberman recommended that the Commission provide several hypothetical examples of how and under what circumstances the deliberate ignorance standard might be applied in the future to more clearly explain how the NRC staff would differentiate between deliberate ignorance and careless disregard in practice.

NRC Response: The Commission agrees with the comments expressing concern that the difficulties in implementing the deliberate ignorance standard would likely outweigh its corresponding benefits. The text of the proposed rule contains multiple subjective elements that would require NRC staff to assess and demonstrate the subjective belief for an individual's actions or inactions. The Commission believes the text of the proposed rule correctly defines “deliberate ignorance” in such a way as to distinguish it from careless disregard or other, non-deliberate standards.42 However, after further consideration of the difficulties in assessing the facts of a case against this separate intent standard, the Commission has decided not to adopt its proposed amendment to incorporate a deliberate ignorance standard into the Deliberate Misconduct Rule. In this regard, the NRC staff already assesses cases against two intent standards cognizable in our enforcement process—deliberateness involving actual knowledge, and all other forms of willfulness, including careless disregard. Careless disregard is different only in degree from the new standard of deliberate ignorance and could frustrate the efficiency of the enforcement process, at least initially, until guidance were issued and enforcement experience established. The Commission also anticipates that, in most NRC enforcement cases, evidence supporting deliberate ignorance would also serve as circumstantial evidence supporting actual knowledge, further diminishing the utility of the proposed rule at this time.43 Multiple Federal circuits have characterized deliberate ignorance jury instructions as means to properly inform juries that a “charade of ignorance” can serve as circumstantial proof of guilty knowledge.44 Therefore, the benefits associated with the deliberate ignorance standard would likely not outweigh the practical difficulties of its implementation, particularly given that the Commission expects that cases where evidence supports a deliberate ignorance finding but not actual knowledge will be rare.

42 The proposed rule text mirrored the definition provided by the United States Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011).

43See, e.g., United States v. Arbizo, 833 F.2d 244, 247, 248-49 (10th Cir. 1987) (“One can in fact not know many detailed facts but still have enough knowledge to demonstrate consciousness of guilty conduct sufficient to satisfy the `knowing' element of the crime . . . Arbizo's case presents evidence supporting both actual knowledge and deliberate avoidance of knowledge of some details of the transaction, either of which justify the [guilty] verdict . . . .”).

44See, e.g., U.S. v. Conner, 537 F.3d 480, 486 (5th Cir. 2008); U.S. v. Delreal-Ordones, 213 F.3d 1263, 1269 (10th Cir. 2000).

The Commission acknowledges Mr. Lieberman's support for the rule and, as previously stated, agrees that the text of the proposed rule accurately distinguishes deliberate ignorance from non-deliberate standards, including recklessness, negligence, and carelessness. However, for the reasons previously stated, the Commission is not adopting in this final rule the proposed amendment to the Deliberate Misconduct Rule.

Comment 2: Lack of a Compelling Justification

The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders all commented that the proposed rule failed to provide a compelling justification for incorporating the deliberate ignorance standard into the Deliberate Misconduct Rule. Several of these commenters stated that the only justification that the NRC provided for expanding the scope of the rule was the NRC staff's inability to invoke collateral estoppel in the Geisen case. These commenters stated that expanding the Deliberate Misconduct Rule cannot be justified by a single case in the Deliberate Misconduct Rule's 25-year history and that to fashion a rule to fit a single case is both unnecessary and bad policy. The NEI commented that the Commission should not view the Geisen proceedings as illustrative of an additional or unfair “burden” that the NRC staff must overcome in deliberate misconduct enforcement cases. Instead, the case simply illustrated the NRC staff's responsibility in carrying its burden when issuing an enforcement order and that the NRC should not be able to dispense with this responsibility by amending the Deliberate Misconduct Rule.

The NEI and Hogan Lovells also argued that the statement in the proposed rule that “deficiencies in the Deliberate Misconduct Rule became apparent” in the Geisen case was incorrect because the Geisen case was not a deliberate ignorance case. Rather, the NRC's order only alleged that Mr. Geisen had actual knowledge of the falsity of the statements that he submitted to the NRC, and that the Atomic Safety and Licensing Board agreed that the case was only an actual knowledge case. Therefore, according to the commenters, the NRC should not use the Geisen case as a basis for the rule. The commenters noted that, when promulgating the original Deliberate Misconduct Rule in 1991, the Commission stated that the range of actions subject to the rule was not expected to “differ significantly” from those that might subject an individual to criminal prosecution, and the commenters noted that one case in nearly 25 years does not rise to the level of a “significant” difference.

NRC Response: The Commission disagrees with this comment. Although the Commission recognizes that the benefits of the rule would be limited because it will likely prove decisive in few cases, the Commission disagrees with the comment that the agency lacked adequate justification to consider modification of the regulations to address deliberate ignorance. When promulgating the Deliberate Misconduct Rule in 1991, the Commission stated that deliberate misconduct is a significant and serious matter that poses a distinct threat to public health and safety.45 The NRC's inability to invoke collateral estoppel in the Geisen proceeding was not the sole justification for proposing to amend the Deliberate Misconduct Rule. Rather, the Commission has always considered willful violations of NRC requirements to be of particular concern because the NRC's regulatory program is dependent on licensees and their contractors, employees, and agents to act with integrity and communicate with candor. Therefore, the outcome of the Geisen proceeding prompted the Commission to reevaluate the Deliberate Misconduct Rule.

45 56 FR 40664, 40674; August 15, 1991.

The Commission also disagrees with the comment that the Geisen case was not a deliberate ignorance case. While the NRC staff did allege only actual knowledge throughout the enforcement proceeding, the NRC staff did not pursue a deliberate ignorance theory because it conceded deliberate ignorance was not a basis upon which it could pursue enforcement action under the Deliberate Misconduct Rule as currently written.46 Conversely, DOJ's parallel criminal prosecution of Mr. Geisen in Federal court was based on alternate theories of actual knowledge or deliberate ignorance. The district court provided the deliberate ignorance jury instruction, and Mr. Geisen was convicted on a general verdict. On appeal to the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit), Mr. Geisen challenged the district court's decision to provide the deliberate ignorance jury instruction.47 The Sixth Circuit reiterated that “a deliberate ignorance instruction is warranted to prevent a criminal defendant from escaping conviction merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct,” but cautioned that this instruction should be used sparingly because of the heightened risk of conviction based on mere negligence, carelessness, or ignorance.48 Under this standard, the court found the instruction to be proper because the district court's instruction was a correct statement of the law and included a limiting instruction—that “carelessness, or negligence, or foolishness on [the defendant's] part is not the same as knowledge and is not enough to convict” foreclosed the possibility that the jury could erroneously convict Geisen on the basis of negligence or carelessness.49 Moreover, the court found that the evidence supported a conviction based on either actual knowledge or deliberate ignorance.50 Had the deliberate ignorance standard been incorporated into the NRC's Deliberate Misconduct Rule, collateral estoppel would have been available to the NRC staff in the Geisen matter.

46See David Geisen, LBP-09-24, 70 NRC 676, 715 (2009); Geisen, CLI-10-23, 72 NRC 210, 251 (2010).

47United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010).

48Id. at 485-86 (citations and internal quotation marks omitted).

49Id.

50Id. at 487.

As previously stated, the Commission is not adopting the proposed amendment to the Deliberate Misconduct Rule because the practical difficulties are expected to outweigh the potential benefits gained from the rule.

Comment 3: Previous Rejection of the Deliberate Ignorance Standard

The NEI stated that the proposed rule would conflict with the Commission's decision in the 1991 Deliberate Misconduct Rule to exclude from the rule violations based on careless disregard and negligence. Hogan Lovells stated that the Commission rejected the deliberate ignorance standard when it promulgated the original Deliberate Misconduct Rule.

NRC Response: The Commission disagrees with the comment. Although the Commission is not adopting the proposed amendment to the Deliberate Misconduct Rule due to the practical difficulties associated with applying the deliberate ignorance standard, the Commission disagrees with comments suggesting that the deliberate ignorance standard was previously analyzed and explicitly rejected when the Commission promulgated the original Deliberate Misconduct Rule in 1991. The commenter points to a single sentence in the statement of considerations for the proposed rule that discussed “careless disregard,” which uses the phrase “a situation in which an individual blinds himself or herself to the realities of whether a violation has occurred or will occur.” 51 The proposed rule and final rule did not make any other reference related to willful blindness or deliberate ignorance and did not contain detailed discussion on the standards.

51 55 FR 12375; April 3, 1990.

The Commission eventually eliminated “careless disregard” from the final rule in response to public comments, which Hogan Lovells characterizes as the Commission's “considered and intentional decision” to exclude deliberate ignorance from the rule. However, the Commission disagrees that this limited discussion amounts to an express rejection of the deliberate ignorance standard. In the 1991 final rule, the Commission did not focus on the applicability of collateral estoppel in a parallel criminal action, which was one of the justifications for the proposed rule. Further, rejection of a proposal under previous rulemaking would not prevent future Commissions from reconsidering the matter and reaching a different conclusion. As previously stated, the NRC is not adopting the proposed amendment to the Deliberate Misconduct Rule over concerns that practical difficulties with its implementation are expected to outweigh the potential benefits.

Comment 4: Unsettled Judicial Precedent

The NEI, Hogan Lovells, and STARS stated that the proposed rule is premature because of unsettled judicial precedent. The NEI and Hogan Lovells cited as support the D.C. Circuit's statements in United States v. Alston-Graves about the use of the deliberate ignorance standard.52 The NEI also stated that the DC Circuit's opinion should carry substantial weight in deciding whether to adopt the deliberate ignorance standard because the DC Circuit is the only Federal circuit court that always has jurisdiction and venue to consider challenges to NRC enforcement orders.

52 435 F.3d 331 (D.C. Cir. 2006).

Additionally, NEI and Hogan Lovells stated that the Supreme Court case Global-Tech Appliances, Inc. v. SEB, S.A., is not directly applicable because it was a patent case, not a criminal case. Therefore, as Justice Kennedy noted in his dissent in the case, the Court was not briefed on whether to endorse the deliberate ignorance standard for all criminal cases requiring the government to prove knowledge.53 The NEI and Hogan Lovells also noted that Federal courts most commonly apply the deliberate ignorance standard in drug cases.

53Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 2073 (2011) (Kennedy, J., dissenting).

NRC Response: The Commission disagrees with the comment. Although the Commission is not adopting the proposed amendment to the Deliberate Misconduct Rule due to the practical difficulties associated with applying the deliberate ignorance standard, the Commission disagrees that judicial precedent in this area is unsettled such that the Commission's proposal to adopt the deliberate ignorance standard is premature. In the words of the Supreme Court, the doctrine of willful blindness is “well established” in the Federal courts.54 The history of the deliberate ignorance standard is quite long—the concept has been endorsed and applied in criminal cases for more than 100 years. The Supreme Court endorsed a similar concept in 1899 in Spurr v. United States. 55 In 1976, the Ninth Circuit in United States v. Jewell crafted the modern formulation of the deliberate ignorance standard that Federal courts have since adopted and applied.56 The concept of deliberate ignorance is now widely accepted in the Federal courts, which commonly give and uphold deliberate ignorance jury instructions.57

54Id. at 2068-69 (majority opinion).

55See id. at 2069.

56 532 F.2d 697 (9th Cir. 1976). See also, e.g., United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985) (“The charge, known as a `deliberate ignorance' charge, originated in United States v. Jewell.”).

57Global-Tech, 131 S. Ct. at 2069; Alston-Graves, 435 F.3d at 338.

In Alston-Graves, the D.C. Circuit ruled on the appropriateness of a deliberate ignorance instruction and found that the lower court committed harmless error giving the instruction—not because the instruction itself is improper but because in this particular case the prosecution failed to present sufficient evidence to support it.58 At no point in Alston-Graves did the D.C. Circuit reject the deliberate ignorance standard. Indeed, the court acknowledged that it had previously supported the concept of deliberate ignorance in dicta in a prior case.59

58Alston-Graves, 435 F.3d at 341-42.

59Id. at 340 (citing United States v. Mellen, 393 F.3d 175, 181 (D.C. Cir. 2004)).

The Commission disagrees with the comment that it should give the D.C. Circuit's opinion in Alston-Graves more weight relative to other Federal circuits. The Hobbs Act, which NEI cited as providing the D.C. Circuit with jurisdiction and venue over all challenges to NRC enforcement orders, also states that jurisdiction and venue is proper in any court of appeals in which the petitioner resides or has its principal office.60 Non-licensed individuals challenging enforcement actions could file such challenges where they reside. Therefore, the Commission believes that it would be unwise to give additional weight to the D.C. Circuit's decision not to fully embrace the deliberate ignorance standard and relatively less weight to every other Federal circuit, which have each more fully embraced the deliberate ignorance standard.61

60 28 U.S.C. 2342(4), 2343.

61 The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals have incorporated willful blindness or deliberate ignorance into their pattern or model jury instructions. Pattern or model jury instructions are plain language formulations of case law that judges may provide to juries as legal explanations. These jury instructions are given legal weight through their use in trials and subsequent approval of that use on appeal. The Second Circuit, see, e.g., United States v. Coplan, 703 F.3d 46 (2d Cir. 2012), and Fourth Circuit, see, e.g., United States v. Poole, 640 F.3d 114 (4th Cir. 2011), have applied deliberate ignorance or willful blindness in case law.

Additionally, the Commission disagrees with the comment that the Supreme Court's Global-Tech decision is inapplicable. The Court acknowledged that it was not briefed on the question of whether to endorse the deliberate ignorance standard for all criminal cases requiring the government to prove knowledge. In rebutting Justice Kennedy's dissent, the Court stated that it could think of no reason to “protect . . . parties who actively encourage others to violate patent rights and who take deliberate steps to remain ignorant of those rights despite a high probability that the rights exist and are being infringed.” 62 The majority's rationale applies with equal force to nuclear regulation. Moreover, although Global-Tech is a civil case, it relied on criminal cases to distill a definition of deliberate ignorance and several courts of appeals have referenced or applied Global-Tech in criminal jury instructions and criminal sentencing.63 Additionally, Federal circuits have approved application of the deliberate ignorance standard in a variety of criminal and civil cases.64

62Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 2069 n.8 (2011).

63See, e.g., United States v. Goffer, 721 F.3d 113, 127-28 (2d Cir. 2013); United States v. Brooks, 681 F.3d 678, 702 n.19 (5th Cir. 2012); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011).

64See, e.g., United States v. Goffer, 721 F.3d 113, (2d Cir. 2013) (upholding a deliberate ignorance jury instruction in a case involving charges of conspiracy to commit securities fraud and securities fraud); United States v. Yi, 704 F.3d 800 (9th Cir. 2013) (upholding a deliberate ignorance jury instruction in a case involving a charge of conspiracy to violate the Clean Air Act); United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) (affirming provision of the deliberate ignorance jury instruction in a case involving charges of false reporting of natural gas trades in violation of the Commodity Exchange Act and the federal wire fraud statute); United States v. Jinwright, 683 F.3d 471 (4th Cir. 2012) (finding the provision of the deliberate ignorance instruction was not an abuse of discretion in a case involving charges of a conspiracy to defraud and tax evasion); Tommy Hilfiger Licensing, Inc. v. Goody's Family Clothing, Inc., 2003 WL 22331254 (N.D. Ga. 2003) (applying a deliberate ignorance standard to a Section 1117 trademark infringement claim).

As previously stated, the NRC is not adopting the proposed amendment to the Deliberate Misconduct Rule because the practical difficulties with its implementation would likely outweigh the potential benefits.

Comment 5: Lack of Guidance

The NEI and STARS stated that the NRC failed to issue draft guidance with the proposed rule and should not make the final rule effective until after the NRC publishes draft guidance for public comment and then finalizes that guidance. The NEI stated that NRC policy requires that the agency issue draft guidance in parallel with proposed rules, citing the SRM to SECY-11-0032, “Consideration of the Cumulative Effects of Regulation in the Rulemaking Process,” dated October 11, 2011 (ADAMS Accession No. ML112840466). The NEI further stated that the final rule should require the Director of the Office of Enforcement to formally certify to the Commission that he or she has reviewed the staff's application of deliberate ignorance before issuing any violation relying on the standard. The NEI also suggested that the NRC provide examples of circumstances that are categorically excluded (i.e., safe harbors) from enforcement on the basis of deliberate ignorance.

Mr. Lieberman expressed support for the proposed rule but also suggested that the NRC provide hypothetical examples of conduct that does and does not satisfy the deliberate ignorance standard in the statement of considerations for the final rule.

NRC Response: The Commission is in general agreement that, if adopted, the rule would benefit from the development of implementing guidance. However, as stated previously, the Commission is has decided not to adopt the proposed amendments to the Deliberate Misconduct Rule. Therefore, there is no need for draft guidance as requested by the commenters.

Comment 6: Proposed Rule Would Discourage Participation in Licensed Activities and Is Not Necessary To Deter Deliberate Misconduct

The NEI commented that the proposed rule would discourage participation in licensed activities and nuclear employment and noted that the Commission acknowledged this concern in the 1991 Deliberate Misconduct Rule.

The NEI commented that the proposed rule is not necessary for deterrent effect because the risk of criminal prosecution is a sufficient deterrent. The commenter also stated that, rather than expanding the Deliberate Misconduct Rule to encompass more individual behavior, the NRC still has the option in situations where an individual engages in improper conduct beyond the reach of the current Deliberate Misconduct Rule to issue sanctions to the company to address the NRC's concerns.

NRC Response: The Commission acknowledges the commenter's concern with respect to participation and employment in the nuclear field and notes that commenters raised and the Commission responded to a similar concern with respect to the 1991 Deliberate Misconduct Rule.65 The Commission also acknowledges that the agency continues to have the ability to take enforcement action against a licensee for an individual's conduct that results in a violation of NRC requirements but does not amount to deliberate misconduct. However, as stated previously, the Commission has decided not to adopt the proposed changes to the Deliberate Misconduct Rule because practical difficulties outweigh the potential benefits. Therefore the Commission did not reach this issue.

65 56 FR 40675; August 15, 1991.

Comments Concerning Immediately Effective Orders

Citing statements from the Geisen Board majority and the additional statement from Judge Farrar, NEI and STARS stated that immediately effective orders should be issued less frequently and be required to contain greater detail. These commenters also stated that the NRC staff should be required to release the Office of Investigations report and all evidence to the individual challenging the order in such a proceeding. The commenters also stated that the Commission should further define what constitutes “adequate evidence” for immediate effectiveness challenge purposes. The commenters suggested revising 10 CFR 2.202(a)(5) to remove the reference to “willful” violations because the NRC need not make an order immediately effective solely based on the violation's willfulness.

The NEI and STARS proposed further changes to 10 CFR 2.202(c)(2)(ii) to clarify that the person challenging an immediately effective enforcement order need not testify in such a hearing because doing so may compromise his or her Fifth Amendment right against self-incrimination. The commenters also advocated including a requirement imposing more stringent requirements and qualifications for persons testifying on behalf of the NRC staff in challenges to immediately effective orders. Additionally, the commenters stated that the final rule should include an additional sentence stating that if the presiding officer orders live testimony, the parties may cross examine witnesses when it would assist the presiding officer's decision on the motion to set aside the immediate effectiveness of the order.

The NEI and STARS commented that the revision to 10 CFR 2.202(c)(2)(iii) should also require that the NRC staff reply to a motion in writing, rather than providing the option to respond orally, in order to prevent the staff's ability to “ambush” or “sandbag” the individual challenging the order. These commenters also stated that the final rule should make clear that NRC staff cannot use this opportunity to expand the scope of arguments set forth in the original immediately effective order.

The NEI and STARS commented that the final rule should revise 10 CFR 2.202(c)(2)(viii) to require that if the presiding officer sets aside an immediately effective order, the order setting aside immediate effectiveness will not be stayed automatically and will only be stayed if the NRC staff files and the Commission grants a motion for a stay under 10 CFR 2.342.

NRC Response: The Commission disagrees with these comments and declines to adopt these changes to the NRC's process for issuing and adjudicating immediately effective orders. The proposed rule sought comments on the changes to 10 CFR 2.202(c); however, as stated in the proposed rule, these changes were intended to clarify evidentiary burdens and the authority of the presiding officer. The final rule clarifies that the NRC staff bears the burden of persuasion in hearings challenging the immediate effectiveness of orders and clarifies that the presiding officer has authority pursuant to 10 CFR 2.319 to order live testimony. The final rule also clarifies how live testimony can be requested and in what manner it may take form. The final rule also contains non-substantive changes intended to improve the clarity and readability of 10 CFR 2.202 by dividing the lengthy paragraph (c) into shorter paragraphs.

Several of the commenters' proposed changes are either already addressed in this final rulemaking, or the current rules are adequately flexible to address their concerns without adopting their proposed changes. For example, with respect to the comment recommending that if the presiding officer orders live testimony, then the parties may cross examine witnesses when it would assist the presiding officer's decision on the motion to set aside the immediate effectiveness of the order, the presiding officer already has the power to order cross examination pursuant to 10 CFR 2.319. Additionally, 10 CFR 2.319 currently describes the duty of the presiding officer in an NRC adjudication to conduct a fair and impartial hearing and to take the necessary action to regulate the course of the hearing and the conduct of its participants. Parties can direct concerns that the NRC staff is inappropriately expanding the scope of argument to the presiding officer for resolution pursuant to this authority. The Commission does not agree with concerns that the NRC staff should reply in writing in advance of live testimony to prevent it from “ambushing” the individual challenging the order. If testimony of individuals is truthful and complete, knowing the staff's response in advance of testifying should have little bearing on its substance. Further, with respect to the commenters' constitutional concerns, it is well established that the Fifth Amendment privilege against self-incrimination can be asserted in administrative proceedings.66 Parties have invoked the privilege in NRC enforcement proceedings, including the Geisen proceeding.67 Given the availability of the privilege in NRC enforcement proceedings, the Commission declines to adopt the proposed change.

66See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (citing Kastigar v. United States, 406 U.S. 441, 453 (1972)).

67See David Geisen, LBP-06-25, 64 NRC 367, 397 n.131 (2006). See also, e.g., Steven P. Moffitt, LBP-06-05, 64 NRC 431, 433 n.2 (2006).

As for the remaining comments, the Commission appreciates the commenters' input on its process for issuing and adjudicating immediately effective orders, but additional substantive changes to 10 CFR 2.202(c)(2) or proposals to significantly overhaul its procedures for challenging immediately effective orders are beyond the scope of this rulemaking. The Commission notes that the commenters are able to submit these recommendations as a petition for rulemaking via the 10 CFR 2.802 petition for rulemaking process. The Commission takes the commenters' concerns with fairness in its adjudicatory procedures seriously; however, the proposed changes to 10 CFR 2.202 were limited to clarifying changes to address specific concerns regarding the application of 10 CFR 2.202(c) in certain circumstances. The multiple additional procedural changes that the commenters recommend would be more appropriately addressed in the context of a comprehensive assessment of the NRC's rules of practice and procedure in 10 CFR part 2, which would ensure compliance with the NRC's obligations under the Administrative Procedure Act to allow for notice and comment on proposed rules before they are adopted. Adopting the commenters' proposed changes in this rulemaking would not allow for sufficient notice-and-comment opportunities for other interested parties, and the NRC therefore declines to do so.

V. Section-by-Section Analysis Immediate Effectiveness of Orders Rule Changes Section 2.202

The rule makes several changes to 10 CFR 2.202(c)(2)(i). The rule revises 10 CFR 2.202(c)(2)(i) by dividing it into several smaller paragraphs. The rule revises paragraph 10 CFR 2.202(c)(2)(i) to include only the first two sentences of the current 10 CFR 2.202(c)(2)(i), which concern the right of the party subject to an immediately effective order to challenge the immediate effectiveness of that order. The rule further revises the first sentence to add a cross reference to 10 CFR 2.202(a)(5) and make other minor, clarifying editorial changes to that sentence.

The rule adds a new paragraph 10 CFR 2.202(c)(2)(ii), which allows any party to file a motion with the presiding officer requesting that the presiding officer order live testimony. Paragraph 10 CFR 2.202(c)(2)(ii) also authorizes the presiding officer, on its own motion, to order live testimony.

The rule redesignates the third sentence of the current 10 CFR 2.202(c)(2)(i) as a new paragraph 10 CFR 2.202(c)(2)(iii), which authorizes the NRC staff to present its response through live testimony rather than a written response in those cases where the presiding officer orders live testimony.

The rule adds a new paragraph 10 CFR 2.202(c)(2)(iv), which provides that the presiding officer shall conduct any live testimony pursuant to 10 CFR 2.319.

The rule makes a minor clarifying change to 10 CFR 2.202(c)(2)(ii) and redesignates that paragraph as 10 CFR 2.202(c)(2)(v).

The rule adds a new paragraph 10 CFR 2.202(c)(2)(vi), which clarifies that the licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward, whereas the NRC staff bears the burden of persuasion that adequate evidence supports the grounds for the immediately effective order and that immediate effectiveness is warranted.

The rule makes minor clarifying changes to the fourth and fifth sentences of 10 CFR 2.202(c)(2)(i), which direct the presiding officer's expeditious disposition of the motion to set aside immediate effectiveness and prohibit the presiding officer from staying the immediate effectiveness of the order, respectively, and redesignates those sentences as a new paragraph 10 CFR 2.202(c)(2)(vii).

The rule makes minor clarifying changes to the eighth sentence of 10 CFR 2.202(c)(2)(i), and redesignates the sixth, seventh, and eighth sentences of 10 CFR 2.202(c)(2)(i) as new paragraph 10 CFR 2.202(c)(2)(viii). These sentences (1) direct the presiding officer to uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness, (2) address the final agency action status of an order upholding immediate effectiveness, (3) address the presiding officer's prompt referral of an order setting aside immediate effectiveness to the Commission, and (4) states that the order setting aside immediate effectiveness will not be effective pending further order of the Commission.

Conforming Amendments to 10 CFR 150.2

This rule revises the last sentence of 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8.

VI. Regulatory Flexibility Certification

Under the Regulatory Flexibility Act, as amended (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This final rule affects a number of “small entities” as defined by the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810). However, as indicated in Section VII, “Regulatory Analysis,” these amendments do not have a significant economic impact on the affected small entities. The NRC received no comment submissions from an identified small entity regarding the impact of the proposed rule on small entities.

VII. Regulatory Analysis

The amendments to the rule governing hearings on challenges to immediate effectiveness of orders do not change the existing processes but merely clarify the rule. The final rule makes minor, conforming amendments to 10 CFR 150.2. These amendments do not result in a cost to the NRC or to respondents in hearings on challenges to immediate effectiveness of orders, but a benefit accrues to the extent that potential confusion over the meaning of the NRC's regulations is removed. The NRC believes that this final rule improves the efficiency of NRC enforcement proceedings without imposing costs on either the NRC or on participants in these proceedings.

VIII. Backfitting and Issue Finality

The final rule revises the immediate effectiveness provisions at 10 CFR 2.202 to state that the respondent bears the burden of going forward with evidence to challenge immediate effectiveness and the NRC staff bears the burden of persuasion on whether adequate evidence supports immediate effectiveness. The final rule also revises 10 CFR 2.202 to clarify that the presiding officer is permitted to order live testimony, either by its own motion, or upon the motion of any party to the proceeding.

The revisions to 10 CFR 2.202 clarify the agency's adjudicatory procedures with respect to challenges to immediate effectiveness of orders. These revisions do not change, modify, or affect the design, procedures, or regulatory approvals protected under the various NRC backfitting and issue finality provisions. Accordingly, the revisions to the adjudicatory procedures do not represent backfitting imposed on any entity protected by backfitting provisions in 10 CFR parts 50, 70, 72, or 76, nor are they inconsistent with any issue finality provision in 10 CFR part 52.

IX. Cumulative Effects of Regulation

Cumulative Effects of Regulation do not apply to this final rule because it is an administrative rule. The final rule only (1) makes amendments to the NRC's regulations regarding challenges to the immediate effectiveness of NRC enforcement orders to clarify the burden of proof and to clarify the authority of the presiding officer to order live testimony in resolving these challenges and (2) makes conforming amendments to 10 CFR 150.2.

X. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

XI. National Environmental Policy Act

The NRC has determined that the issuance of this final rule relates to enforcement matters and, therefore, falls within the scope of 10 CFR 51.10(d). In addition, the NRC has determined that the issuance of this final rule is the type of action described in categorical exclusions at 10 CFR 51.22(c)(1)-(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rulemaking.

XII. Paperwork Reduction Act

This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0032.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

XIII. Congressional Review Act

The portion of this action amending 10 CFR 2.202 is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, OMB has not found it to be a major rule as defined in the Congressional Review Act.

XIV. Compatibility of Agreement State Regulations

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register (62 FR 46517; September 3, 1997), this final rule will be a matter of compatibility between the NRC and the Agreement States, thereby providing consistency among the Agreement States and the NRC requirements. The NRC staff analyzed the rule in accordance with the procedure established within Part III, “Categorization Process for NRC Program Elements,” of Handbook 5.9 to Management Directive 5.9, “Adequacy and Compatibility of Agreement State Programs” (see http://www.nrc.gov/reading-rm/doc-collections/management-directives/).

The NRC program elements (including regulations) are placed into four compatibility categories (See the Compatibility Table in this section). In addition, the NRC program elements can also be identified as having particular health and safety significance or as being reserved solely to the NRC. Compatibility Category A are those program elements that are basic radiation protection standards and scientific terms and definitions that are necessary to understand radiation protection concepts. An Agreement State should adopt Category A program elements in an essentially identical manner to provide uniformity in the regulation of agreement material on a nationwide basis. Compatibility Category B are those program elements that apply to activities that have direct and significant effects in multiple jurisdictions. An Agreement State should adopt Category B program elements in an essentially identical manner. Compatibility Category C are those program elements that do not meet the criteria of Category A or B, but the essential objectives of which an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a nationwide basis. An Agreement State should adopt the essential objectives of the Category C program elements. Compatibility Category D are those program elements that do not meet any of the criteria of Category A, B, or C, and, therefore, do not need to be adopted by Agreement States for purposes of compatibility.

Health and Safety (H&S) are program elements that are not required for compatibility but are identified as having a particular health and safety role (i.e., adequacy) in the regulation of agreement material within the State. Although not required for compatibility, the State should adopt program elements in this H&S category based on those of the NRC that embody the essential objectives of the NRC program elements because of particular health and safety considerations. Compatibility Category NRC are those program elements that address areas of regulation that cannot be relinquished to Agreement States under the Atomic Energy Act, as amended, or provisions of 10 CFR. These program elements are not adopted by Agreement States. The following table lists the parts and sections that will be revised and their corresponding categorization under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs.” The Agreement States have 3 years from the final rule's effective date, as noted in the Federal Register, to adopt compatible regulations.

Table 1—Compatibility Table for Final Rule Section Change Subject Compatibility Existing New Part 2 2.202(c) Revised Orders NRC NRC. Part 150 150.2 Revised Scope D D. XV. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is clarifying two aspects of challenges to the immediate effectiveness of NRC enforcement orders: (1) The burden of proof and (2) the authority of the presiding officer to order live testimony in resolving such a challenge. The NRC is also making conforming amendments to 10 CFR 150.2. This action does not constitute the establishment of a standard that contains generally applicable requirements.

List of Subjects 10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information; Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 150

Criminal penalties, Hazardous materials transportation, Intergovernmental relations, Nuclear energy, Nuclear materials, Penalties, Reporting and recordkeeping requirements, Security measures, Source material, Special nuclear material.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 150 as follows:

PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 2 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.

Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

2. In § 2.202, revise paragraph (c)(2) to read as follows:
§ 2.202 Orders.

(c) * * *

(2)(i) The licensee or other person to whom the Commission has issued an immediately effective order in accordance with paragraph (a)(5) of this section, may, in addition to demanding a hearing, at the time the answer is filed or sooner, file a motion with the presiding officer to set aside the immediate effectiveness of the order on the ground that the order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.

(ii) Any party may file a motion with the presiding officer requesting that the presiding officer order live testimony. Any motion for live testimony must be made in conjunction with the motion to set aside the immediate effectiveness of the order or any party's response thereto. The presiding officer may, on its own motion, order live testimony. The presiding officer's basis for approving any motion for, or ordering on its own motion, live testimony shall be that taking live testimony would assist in its decision on the motion to set aside the immediate effectiveness of the order.

(iii) The NRC staff shall respond in writing within 5 days of the receipt of either a motion to set aside the immediate effectiveness of the order or the presiding officer's order denying a motion for live testimony. In cases in which the presiding officer orders live testimony, the staff may present its response through live testimony rather than a written response.

(iv) The presiding officer shall conduct any live testimony pursuant to its powers in § 2.319 of this part, except that no subpoenas, discovery, or referred rulings or certified questions to the Commission shall be permitted for this purpose.

(v) The presiding officer may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately effective order at any time for such periods as are consistent with the due process rights of the licensee or other person and other affected parties.

(vi) The licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward with evidence that the immediately effective order is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error. The NRC staff bears the burden of persuading the presiding officer that adequate evidence supports the grounds for the immediately effective order and immediate effectiveness is warranted.

(vii) The presiding officer shall issue a decision on the motion to set aside the immediate effectiveness of the order expeditiously. During the pendency of the motion to set aside the immediate effectiveness of the order or at any other time, the presiding officer may not stay the immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.

(viii) The presiding officer shall uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness. An order upholding immediate effectiveness will constitute the final agency action on immediate effectiveness. The presiding officer will promptly refer an order setting aside immediate effectiveness to the Commission and such order setting aside immediate effectiveness will not be effective pending further order of the Commission.

PART 150—EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274 3. The authority citation for part 150 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 11, 53, 81, 83, 84, 122, 161, 181, 223, 234, 274 (42 U.S.C. 2014, 2201, 2231, 2273, 2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

4. In § 150.2, revise the last sentence to read as follows:
§ 150.2 Scope.

* * * This part also gives notice to all persons who knowingly provide to any licensee, applicant for a license or certificate or quality assurance program approval, holder of a certificate or quality assurance program approval, contractor, or subcontractor, any components, equipment, materials, or other goods or services that relate to a licensee's, certificate holder's, quality assurance program approval holder's or applicant's activities subject to this part, that they may be individually subject to NRC enforcement action for violation of §§ 30.10, 40.10, 61.9b, 70.10, and 71.8.

Dated at Rockville, Maryland, this 13th day of October, 2015.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.
[FR Doc. 2015-26590 Filed 10-19-15; 8:45 am] BILLING CODE 7590-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-1985; Directorate Identifier 2014-NM-214-AD; Amendment 39-18294; AD 2015-21-02] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. This AD was prompted by reports of un-annunciated failures of the direct current (DC) starter generator, which caused caution indicators of the affected systems to illuminate and prompted emergency descents and landings. This AD requires replacing the DC generator control units (GCUs) with new GCUs and replacing the GCU label. We are issuing this AD to prevent a low voltage condition on the left main DC bus, which, during critical phases of flight, could result in the loss of flight management, navigation, and transponder systems, and could affect continued safe flight.

DATES:

This AD becomes effective November 24, 2015.

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

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-1985; or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-1985.

FOR FURTHER INFORMATION CONTACT:

Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. The NPRM published in the Federal Register on June 25, 2015 (80 FR 36493).

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-31R2, dated November 11, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. The MCAI states:

Four occurrences of un-annunciated failure of the No. 1 Direct Current (DC) Starter Generator prompted emergency descents and landings resulting from the illumination of numerous caution indications of the affected systems. The functionality of the affected systems such as Flight Management System, Navigation, and transponder systems, were reportedly reduced or lost. Investigation determined the failure was a result of a low voltage condition of the Left Main DC Bus. During critical phases of flight, the loss of these systems could affect continued safe flight.

The original issue of this [Canadian] AD mandated the modification [replacing certain DC GCUs with new GCUs and replacing labels] which introduces generator control unit (GCU) undervoltage protection.

Revision 1 of this [Canadian] AD added a GCU part number to the applicability of Part III of this [Canadian] AD, in order to ensure that all units are fitted with a warning label.

Revision 2 of this [Canadian] AD corrects the GCU part number in the applicability of Part III of this [Canadian] AD.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-1985-0003. Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 36493, June 25, 2015) or on the determination of the cost to the public.

Conclusion

We reviewed the available 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 36493, June 25, 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 36493, June 25, 2015).

Related Service Information Under 1 CFR Part 51

Bombardier has issued the following service information.

• Service Bulletin 8-24-84, Revision D, dated April 10, 2014, describes incorporating Bombardier Modification Summary (ModSum) 8Q101710 by replacing the GCU with a new GCU, and replacing the GCU label for airplanes having certain Phoenix DC power GCU part numbers.

• Service Bulletin 8-24-89, Revision C, dated November 4, 2014, describes incorporating Bombardier ModSum 8Q101925 by replacing the GCU with a new GCU, and replacing the GCU label for airplanes having certain Goodrich DC power GCU part numbers.

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 92 airplanes of U.S. registry.

We also estimate that it takes about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost up to $12,098 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be up to $1,136,476, or up to $12,353 per product.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-1985; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-21-02 Bombardier, Inc.: Amendment 39-18294. Docket No. FAA-2015-1985; Directorate Identifier 2014-NM-214-AD. (a) Effective Date

This AD becomes effective November 24, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes, certificated in any category, serial numbers 003 through 672 inclusive.

(d) Subject

Air Transport Association (ATA) of America Code 24, Electrical Power.

(e) Reason

This AD was prompted by reports of un-annunciated failures of the direct current (DC) starter generator, which caused caution indicators of the affected systems to illuminate and prompted emergency descents and landings. We are issuing this AD to prevent a low voltage condition on the left main DC bus which, during critical phases of flight, could result in the loss of flight management, navigation, and transponder systems, and could affect continued safe flight.

(f) Compliance

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

(g) For Airplanes Having Certain Generator Control Units (GCUs) Installed: Replacement of DC GCUs and GCU Labels

Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first, accomplish the actions specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable.

(1) For airplanes having Goodrich DC GCU part number 51539-008B, 51539-008C, or 51539-008D installed: Incorporate Bombardier Modification Summary (ModSum) 8Q101925 by replacing the GCU with a new GCU, and replacing the GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-89, Revision C, dated November 4, 2014.

(2) For airplanes having Phoenix DC GCU part number GC-1010-24-5DIII or GC-1010-24-5DII installed: Incorporate Bombardier ModSum 8Q101710 by replacing the GCU with a new GCU, and replacing the GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.

(h) For Airplanes Having Certain Other GCUs Installed: Replacement of DC GCU Label

For airplanes having Phoenix DC GCU part number GC-1010-24-5DIV or GC-1010-24-5DV installed: Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first, replace the DC GCU label with a new GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.

(i) Credit for Previous Actions

(1) This paragraph provides credit for the actions required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (i)(1)(i) through (i)(1)(iii) of this AD, as applicable. This service information is not incorporated by reference in this AD.

(i) Bombardier Service Bulletin 8-24-89, dated November 12, 2011.

(ii) Bombardier Service Bulletin 8-24-89, Revision A, dated August 8, 2012.

(iii) Bombardier Service Bulletin 8-24-89, Revision B, dated April 9, 2014.

(2) This paragraph provides credit for actions required by paragraphs (g)(2) and (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (i)(2)(i) through (i)(2)(iv) of this AD, as applicable. This service information is not incorporated by reference in this AD.

(i) Bombardier Service Bulletin 8-24-84, dated August 22, 2008.

(ii) Bombardier Service Bulletin 8-24-84, Revision A, dated August 23, 2008.

(iii) Bombardier Service Bulletin 8-24-84, Revision B, dated October 15, 2008.

(iv) Bombardier Service Bulletin 8-24-84, Revision C, dated July 7, 2009.

(j) Other FAA AD Provisions

The following provisions also apply to this AD:

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

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

(k) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-31R2, dated November 14, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-1985-0003.

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

(l) Material Incorporated by Reference

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

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

(i) Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.

(ii) Bombardier Service Bulletin 8-24-89, Revision C, dated November 4, 2014.

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

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

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

Issued in Renton, Washington, on October 6, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-26218 Filed 10-19-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0442; Directorate Identifier 2007-SW-24-AD; Amendment 39-18291; AD 2015-20-12] RIN 2120-AA64 Airworthiness Directives; Various Sikorsky-Manufactured Transport and Restricted Category Helicopters AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 98-26-02 for certain Sikorsky Aircraft Corporation (Sikorsky) Model S-61A, D, E, L, N, NM, R, and V helicopters. AD 98-26-02 required determining whether the main rotor shaft (MRS) was used in repetitive external lift (REL) operations, performing a nondestructive inspection (NDI) for cracks, replacing any unairworthy MRS, and establishing retirement lives for each REL MRS. This new AD retains some of the requirements of AD 98-26-02 but determines a new retirement life for each MRS, expands the applicability to include additional helicopters, and requires removing from service any MRS with oversized dowel pin bores. This AD was prompted by the manufacturer's reevaluation of the retirement life for the MRS based on torque, ground-air-ground (GAG) cycle, and fatigue testing. We are issuing this AD to prevent MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.

DATES:

This AD is effective November 24, 2015.

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

ADDRESSES:

For service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email [email protected], or at http://www.sikorsky.com. You may view this referenced service information at the FAA, Office of the Regional Counsel, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov in Docket No. FAA-2008-0442; 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, any incorporated-by-reference information, the economic evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Tracy Murphy, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7172; email [email protected]

SUPPLEMENTARY INFORMATION: Discussion

On April 10, 2008, we issued a notice of proposed rulemaking (NPRM) (73 FR 21556, April 22, 2008) proposing to amend 14 CFR part 39 by adding an AD for Sikorsky Aircraft Corporation Model S-61A, D, E, L, N, NM, R, and V; Croman Corporation Model SH-3H; Carson Helicopters, Inc., Model S-61L; Glacier Helicopters, Inc., Model CH-3E; Robinson Air Crane, Inc., Model CH-3E, CH-3C, HH-3C and HH-3E; and Siller Helicopters Model CH-3E and SH-3A helicopters. The NPRM proposed superseding AD 98-26-02 (63 FR 69177, December 16, 1998), which required determining whether the MRS was used in REL operations, performing an NDI for cracks, replacing any unairworthy MRS, and establishing retirement lives for each REL MRS. The NPRM proposed to retain some of the requirements of AD 98-26-02 but also proposed a new retirement life determination for each MRS, removing from service any MRS with oversized dowel pin bores, and expanding the applicability to include certain restricted category models. The NPRM was prompted by the manufacturer's reevaluation of the retirement life for the MRS based on torque, GAG cycle, and fatigue testing. Those proposals were intended to prevent MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.

On April 16, 2013, we issued a supplemental NPRM (SNPRM) (78 FR 24363, April 25, 2013) that proposed to revise the NPRM based on comments received on the NPRM and a reevaluation of the relevant data. The SNPRM proposed retaining the proposals in the NPRM but extending the hours TIS required for identifying the MRS as an REL MRS to coincide with the NDI to prevent repeated disassembly of the shaft. The SNPRM also proposed to extend the time required to replace the MRS and revise calculations for establishing the retirement life.

On September 19, 2014, we issued a second SNPRM (79 FR 60789, October 8, 2014). In addition to retaining previously-proposed requirements, the second SNPRM revised the Cost of Compliance section to reflect an increased cost for parts to replace an MRS and clarified some of the wording for complying with the AD.

Since the SNPRM (79 FR 60789, October 8, 2014) was issued, the FAA Southwest Regional Office has relocated. We have revised the physical address to reflect the new address.

Comments

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the second SNPRM (79 FR 60789, October 8, 2014).

FAA's Determination

We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for a minor change. Sikorsky Aircraft was inadvertently omitted as one of the current type certificate holders of some of the applicable model helicopters; we are correcting that error in this AD. This change is consistent with the intent of the proposals in the SNPRM (79 FR 60789, October 8, 2014) and will not increase the economic burden on any operator nor increase the scope of the AD.

Related Service Information Under 1 CFR Part 51

Sikorsky issued Alert Service Bulletin No. 61B35-69, dated April 19, 2004, which provides procedures for determining REL and Non-REL status, assigns new REL and Non-REL MRS retirement lives, and provides a method for marking the REL MRS. 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.

Other Related Service Information

Sikorsky issued Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987, and Service Bulletin (SB) No. 61B35-53, dated December 2, 1981, both revised with Revision A on April 19, 2004, for Model S-61L, N, and NM (serial number (S/N) 61454), and R series transport category helicopters; and S-61A, D, E, and V series restricted category helicopters. CSN 6135-10A specifies replacing the planetary assembly and MRS assembly attaching hardware with high strength hardware. CSN 6135-10A also specifies reworking the dowel retainer to increase hole chamfer and related countersink diameters. SB 61B35-53A specifies replacing the existing planetary matching plates with new steel matching plates during overhaul at the operator's discretion.

Sikorsky Aircraft Corporation also issued an All Operators Letter CCS-61-AOL-04-0005, dated May 18, 2004, which contains an example and additional information about tracking cycles and the moving average procedure.

Costs of Compliance

We estimate that this AD affects 60 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. It will take about 2.2 work-hours to NDI an REL MRS at $85 per work-hour plus a $50 consumable cost, for a total estimated cost of $237 per helicopter and $14,220 for the U.S. fleet. It will take about 2.2 work-hours to replace an MRS at $85 per work-hour plus parts cost of $81,216, for a total estimated cost of $81,403 per helicopter.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that a regulatory distinction is required, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 98-26-02, Amendment 39-10943 (63 FR 69177, December 16, 1998), and adding the following new AD: 2015-20-12 Sikorsky Aircraft Corporation; Sikorsky Aircraft; Croman Corporation; Carson Helicopters, Inc.; Glacier Helicopters, Inc.; Robinson Air Crane, Inc.; and Siller Helicopters: Amendment 39-18291; Docket No. FAA-2008-0442; Directorate Identifier 2007-SW-24-AD. (a) Applicability

This AD applies to Model S-61A, D, E, L, N, NM (serial number (S/N) 61454), R, V, CH-3C, CH-3E, HH-3C, HH-3E, SH-3A, and SH-3H helicopters with main rotor shaft (MRS), part number S6135-20640-001, S6135-20640-002, or S6137-23040-001, installed, certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.

(c) Affected ADs

This AD supersedes AD 98-26-02, Amendment 39-10943 (63 FR 69177, December 16, 1998).

(d) Effective Date

This AD becomes effective November 24, 2015.

(e) Compliance

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

(f) Required Actions

(1) Within 10 hours time-in-service (TIS):

(i) Create a component history card or equivalent record for each MRS.

(ii) If there is no record of the hours TIS on an individual MRS, substitute the helicopter's hours TIS or the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time.

(iii) If the record of external lift cycles (lift cycles) on an individual MRS is incomplete, add the known number of lift cycles to a number calculated by multiplying the number of hours TIS of the individual MRS by the average lift cycles calculated according to the instructions in Section I of Appendix 1 of this AD or by a factor of 13.6, whichever is higher. An external lift cycle is defined as a flight cycle in which an external load is picked up, the helicopter is repositioned (through flight or hover), and the helicopter hovers and releases the load and departs or lands and departs.

(iv) At the end of each day's operations, record the number of lift cycles performed and the hours TIS.

(2) Within 250 hours TIS, determine whether the MRS is a repetitive external lift (REL) or Non-REL MRS.

(i) Calculate the first moving average of lift cycles by following the instructions in Section I of Appendix 1 of this AD.

(A) If the calculation results in 6 or more lift cycles per hour TIS, the MRS is an REL-MRS.

(B) If the calculation results in less than 6 lift cycles per hour TIS, the MRS is a Non-REL MRS.

(ii) If the MRS is a Non-REL MRS based on the calculation performed in accordance with paragraph (f)(2)(i) of this AD, thereafter at intervals of 50 hour TIS, recalculate the average lift cycles per hour TIS by following the instructions in Section II of Appendix 1 of this AD.

(iii) Once an MRS is determined to be an REL MRS, you no longer need to perform the 250-hour TIS moving average calculation, but you must continue to count and record the lift cycles and number of hours TIS.

(iv) If an MRS is determined to be an REL MRS, it remains an REL MRS for the rest of its service life and is subject to the retirement times for an REL MRS.

(3) Within 1,100 hours TIS:

(i) Conduct a Non-Destructive Inspection for a crack on each MRS. If there is a crack in an MRS, before further flight, replace it with an airworthy MRS.

(ii) If an MRS is determined to be an REL MRS, identify it as an REL MRS by etching “REL” on the outside diameter of the MRS near the part S/N by following the Accomplishment Instructions, paragraph 3.C., of Sikorsky Alert Service Bulletin No. 61B35-69, dated April 19, 2004.

(4) Replace each MRS with an airworthy MRS on or before reaching the revised retirement life as follows:

(i) For an REL MRS that is not modified by following Sikorsky Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987, and Sikorsky Service Bulletin (SB) No. 61B35-53, dated December 2, 1981 (unmodified REL MRS), the retirement life is 30,000 lift cycles or 1,500 hours TIS, whichever occurs first.

(ii) For an REL MRS that is modified by following Sikorsky CSN No. 6135-10, dated March 18, 1987, and Sikorsky SB No. 61B35-53 dated December 2, 1981; or Sikorsky CSN No. 6135-10A and Sikorsky SB No. 61B35-53A, both Revision A, and both dated April 19, 2004 (modified REL MRS), the retirement life is 30,000 lift cycles or 5,000 hours TIS, whichever occurs first.

(iii) For a Non-REL MRS, the retirement life is 13,000 hours TIS.

(5) Establish or revise the retirement lives of the MRS as indicated in paragraphs (f)(4)(i) through (f)(4)(iii) of this AD by recording the new or revised retirement life on the MRS component history card or equivalent record.

(6) Within 50 hours TIS, remove from service any MRS with oversized (0.8860” or greater diameter) dowel pin bores.

(g) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Tracy Murphy, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7172; email [email protected]

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

(h) Additional Information

Sikorsky Aircraft Corporation All Operators Letter CCS-61-AOL-04-0005, dated May 18, 2004; Sikorsky Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987; Sikorsky CSN No. 6135-10A, Revision A, dated April 19, 2004; Sikorsky Service Bulletin (SB) No. 61B35-53, dated December 2, 1981; and Sikorsky SB No. 61B35-53A, Revision A, dated April 19, 2004, which are not incorporated by reference, contain additional information about the subject of this AD. For more information about these documents, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email [email protected], or at http://www.sikorsky.com. You may review a copy of the referenced service information at the FAA, Office of the Regional Counsel, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

(i) Subject

Joint Aircraft Service Component (JASC) Code: 6320, Main Rotor Gearbox.

(j) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference 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) Sikorsky Alert Service Bulletin No. 61B35-69, dated April 19, 2004.

(ii) Reserved.

(3) For Sikorsky service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email [email protected], or at http://www.sikorsky.com.

(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

(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.

Appendix 1 to AD 2015-20-12 Section I: The First Moving Average of External Lift Cycles (Lift Cycles) per Hour Time-in-Service (TIS)

The first moving average calculation is performed on the main rotor shaft (MRS) assembly when the external lift component history card record reflects that the MRS assembly has reached its first 250 hours TIS. To perform the calculation, divide the total number of lift cycles performed during the first 250 hours TIS by 250. The result will be the first moving average calculation of lift cycles per hour TIS.

Section II: Subsequent Moving Average of Lift Cycles per Hour TIS

Subsequent moving average calculations are performed on the MRS assembly at intervals of 50 hour TIS after the first moving average calculation. Subtract the total number of lift cycles performed during the first 50-hour TIS interval used in the previous moving average calculation from the total number of lift cycles performed on the MRS assembly during the previous 300 hours TIS. Divide this result by 250. The result will be the next or subsequent moving average calculation of lift cycles per hour TIS.

Section III: Sample Calculation for Subsequent 50 Hour TIS Intervals

Assume the total number of lift cycles for the first 50 hour TIS interval used in the previous moving average calculation = 450 lift cycles and the total number of lift cycles for the previous 300 hours TIS = 2700 lift cycles. The subsequent moving average of lift cycles per hour TIS = (2700 − 450) divided by 250 = 9 lift cycles per hour TIS.

Issued in Fort Worth, Texas, on October 4, 2015. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2015-25976 Filed 10-19-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-1832; Airspace Docket No. 14-ACE-10] Establishment of Class E Airspace; Wakeeney, KS AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action establishes Class E airspace at Wakeeney, KS. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Trego Wakeeney Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport. The airport name also is correctly noted in the airspace description.

DATES:

Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES:

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

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

FOR FURTHER INFORMATION CONTACT:

Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5857.

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

History

On June 25, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to propose Class E airspace extending upward from 700 feet above the surface at Trego Wakeeney Airport, Wakeeney, KS, (80 FR 36495). The airport name is corrected in the airspace description from Sheridan Municipal Airport to Trego Wakeeney Airport. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

Availability and Summary of Documents for Incorporation by Reference

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

The Rule

This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Trego Wakeeney Airport, Wakeeney, KS, to accommodate new Standard Instrument Approach Procedures for IFR operations at the airport. The correct airport name is noted in the airspace description, changing it from Sheridan Municipal Airport.

Regulatory Notices and Analyses

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

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

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

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE KS E5 Wakeeney, KS [New] Trego Wakeeney Airport, KS (Lat. 39°00′24″ N., long. 099°53′35″ W.) That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Trego Wakeeney Airport.
Issued in Fort Worth, TX, October 7, 2015. Robert W. Beck, Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2015-26276 Filed 10-19-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-1649; Airspace Docket No. 15-AGL-6] Amendment of Class D Airspace and Revocation of Class E Airspace; Columbus, Ohio State University Airport, OH, and Amendment of Class E Airspace; Columbus, OH AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action amends Class D and Class E airspace and removes Class E airspace in the Columbus, OH, area. Decommissioning of the non-directional radio beacon (NDB) and/or cancellation of NDB approaches at Ohio State University Airport, Columbus, OH, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. Also, the geographic coordinates of the airport, as well as the Port Columbus International Airport, are updated.

DATES:

Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES:

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

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

FOR FURTHER INFORMATION CONTACT:

Jim Pharmakis, Operations Support Group, Central Service Center, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5855.

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and Class E airspace and removes Class E airspace in the Columbus, OH, area.

History

On July 17th, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class D and Class E airspace and remove Class E airspace in the Columbus, OH, area. (80 FR 42434). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

Availability and Summary of Documents for Incorporation by Reference

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

The Rule

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class D and E airspace in the Columbus, OH, area. Decommissioning of the Dan Scott NDB navigation aid and cancellation of the NDB approach at Ohio State University Airport has made this action necessary. Class E airspace designated as an extension to Class D is removed as it is no longer required. Class E airspace extending upward from 700 feet above the surface at Port Columbus International Airport is reconfigured due to the Dan Scott NDB decommissioning. The geographic coordinates of Ohio State University Airport and Port Columbus International Airport are updated to coincide with the FAAs aeronautical database.

Class D and E airspace designations are published in Paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

Regulatory Notices and Analyses

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

Lists of Subjects in 14 CFR Part 71:

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

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

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

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 5000 Class D Airspace. AGL OH D Columbus, Ohio State University Airport, OH [Amended] Columbus, Ohio State University Airport, OH (Lat. 40°04′47″ N., long. 83°04′23″ W.) That airspace extending upward from the surface to and including 3,400 feet MSL within a 4-mile radius of Ohio State University Airport, excluding that airspace within the Port Columbus International Airport, OH, Class C airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continuously published in the Airport/Facility Directory. Paragraph 6004 Class E Airspace Areas Designated as a Surface Area. AGL OH E4 Columbus, Ohio State University Airport, OH [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL OH E5 Columbus, OH [Amended] Columbus, Port Columbus International Airport, OH (Lat. 39°59′49″ N., long. 82°53′32″ W.) Columbus, Rickenbacker International Airport, OH (Lat. 39°48′50″ N., long. 82°55′40″ W.) Columbus, Ohio State University Airport, OH (Lat. 40°04′47″ N., long. 83°04′23″ W.) Columbus, Bolton Field Airport, OH (Lat. 39°54′04″ N., long. 83°08′13″ W.) Columbus, Darby Dan Airport, OH (Lat. 39°56′31″ N., long. 83°12′18″ W.) Lancaster, Fairfield County Airport, OH (Lat. 39°45′20″ N., long. 82°39′26″ W.) That airspace extending upward from 700 feet above the surface within a 7-mile radius of Port Columbus International Airport, and within 3.3 miles either side of the 094° bearing from Port Columbus International Airport extending from the 7-mile radius to 12.1 miles east of the airport, and within a 7-mile radius of Rickenbacker International Airport, and within 4 miles either side of the 045° bearing from Rickenbacker International Airport extending from the 7-mile radius to 12.5 miles northeast of the airport, and within a 6.5-mile radius of Ohio State University Airport, and within a 7.4-mile radius of Bolton Field Airport, and within a 6.4-mile radius of Fairfield County Airport, and within a 6.5-mile radius of Darby Dan Airport, excluding that airspace within the London, OH, Class E airspace area.
Issued in Fort Worth, TX, on October 8, 2015. Robert W. Beck, Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2015-26280 Filed 10-19-15; 8:45 am] BILLING CODE 4910-13-P
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE 32 CFR Part 1701 Privacy Act Systems of Records AGENCY:

Office of the Director of National Intelligence.

ACTION:

Final rule.

SUMMARY:

The Office of the Director of National Intelligence (ODNI) is issuing a final rule exempting two (2) new systems of records from subsections (c)(3); (d)(1),(2),(3),(4); (e)(1) and (e)(4)(G),(H),(I); and (f) of the Privacy Act, and invoking subsection (k)(2) as an additional basis for exempting records from these provisions of the Act with respect to one (1) existing system of records. The ODNI published a notice and a proposed rule implementing these exemptions on May 27, 2015. The enumerated exemptions will be invoked on a case by case basis, as necessary to preclude interference with investigatory, intelligence and counterterrorism functions and responsibilities of the ODNI. The ODNI received no comments regarding the proposed rule.

DATES:

This final rule is effective October 20, 2015.

FOR FURTHER INFORMATION CONTACT:

Jennifer L. Hudson, Director, Information Management Division, 703-874-8085.

SUPPLEMENTARY INFORMATION: Background

On May 27, 2015, the Office of the Director of National Intelligence (ODNI) published notice of two new Privacy Act systems of records: Counterintelligence Trends Analyses Records (ODNI/NCSC-002) and Insider Threat Program Records (ODNI-22). These systems of records contain records that range from Unclassified to Top Secret. Accordingly, in conjunction with publication of these systems notices, and pursuant to exemption authority afforded the head of the agency by the Privacy Act, the ODNI initiated a rulemaking to exempt the systems in relevant part from provisions identified at subsection (k) of the Act (enumerated above). The proposed rulemaking also sought to amend the system of records entitled Information Technology Systems Activity and Access Records (ODNI-19), originally published at 76 FR 42742 (July 19, 2011), by adding subsection (k)(2) of the Privacy Act as a basis for exempting records covered by that system from the provisions noted. The affected systems notices and proposed exemption rule are published at 80 FR 30271 and 30187.

This final rule differs from the proposed rule in that it deletes from 32 CFR 1701.24 a list of ODNI Systems of Records Notices (SORNs). The proposed rule would have added the newly published SORNs to this listing. In lieu of revising the ODNI Privacy Act Regulation as SORNs are published or rescinded, ODNI will periodically publish a consolidated list of new, updated or deleted SORNs.

Public Comments

None.

Final Rule: Implementation of Exemption Rule and Systems Notices

Absent comment or objection from any member of the public, the ODNI has determined to issue the proposed exemption rule in final form and to implement the new and amended systems of records as described. The exemptions proposed are necessary and appropriate to protect intelligence equities undergirding ODNI's mission and functions and, narrowly applied, they do so consistent with privacy principles. By restrictively construing the exemptions to apply only to records that satisfy thresholds articulated in subsection (k), ODNI achieves the goal of balancing intelligence-related equities with fair information principles and values.

Regulatory Flexibility Act

This rule affects only the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking does not impact small entities and that analysis under the Regulatory Flexibility Act, 5 U.S.C. 601-612, is not required.

Small Entity Inquiries

The Small Business Regulatory enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law-lib.html.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this rule and therefore no analysis of burden is required.

Executive Order 12866, Regulatory Planning and Review

This rule is not a “significant regulatory action,” within the meaning of Executive Order 12866. This rule will not adversely affect the economy or a sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the right and obligations of recipients thereof; or raise legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local and tribal governments, and the private sector. This rule imposes no Federal mandate on any State, local or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required.

Executive Order 13132, Federalism

Executive Order 13132 requires agencies to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from their rules. ODNI concludes that this rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit state policymaking discretion. This rule has no federalism implications as defined by the Executive Order.

Environmental Impact

This rulemaking will not have a significant effect on the human environment under the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347.

Energy Impact

This rulemaking is not a major regulatory action under the provisions of the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163) as amended, 42 U.S.C. 6362.

List of Subjects in 32 CFR Part 1701

Administrative practice and procedure, Privacy.

For the reasons set forth above, ODNI amends 32 CFR part 1701 as follows:

PART 1701—ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974 1. The authority citation for part 1701 continues to read as follows: Authority:

50 U.S.C. 401-442; 5 U.S.C. 552a.

Subpart B—[AMENDED] 2. Amend § 1701.24 by revising paragraphs (a) to read as follows:
§ 1701.24 Exemption of Office of the Director of National Intelligence (ODNI) systems of records.

(a) The ODNI may invoke its authority to exempt systems of records from the requirements of subsections (c)(3); (d)(1), (2), (3) and (4); (e)(1); (e)(4)(G), (H), (I); and (f) of the Privacy Act to the extent that records covered by the systems are subject to exemption pursuant subsection (k) of the Act.

Dated: August 27, 2015. Mark W. Ewing, Chief Management Officer.
[FR Doc. 2015-24398 Filed 10-19-15; 8:45 am] BILLING CODE 9500-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0925] Drawbridge Operation Regulation; Arthur Kill, Staten Island, New York AGENCY:

Coast Guard, DHS.

ACTION:

Notice of temporary deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Arthur Kill (AK) Railroad Bridge across Arthur Kill, mile 11.6, between Staten Island, New York and Elizabeth, New Jersey. Under this temporary deviation the bridge may remain in the closed position to facilitate scheduled maintenance. This deviation is necessary to facilitate tie and miter rail replacement on the lift span.

DATES:

This deviation is effective from 6 a.m. on October 23, 2015 to 2:48 p.m. on December 13, 2015.

ADDRESSES:

The docket for this deviation, [USCG-2015-0925] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Mr. Joe Arca, Project Officer, First Coast Guard District, telephone (212) 514-4336, email [email protected]

SUPPLEMENTARY INFORMATION:

The AK Railroad Bridge, across Arthur Kill, mile 11.6, between Staten Island, New York and Elizabeth, New Jersey has a vertical clearance in the closed position of 31 feet at MHW and 35 feet at MLW. The existing drawbridge operation regulations are listed at 33 CFR 117.702.

The waterway supports both commercial and recreational navigation of various vessel sizes. The operator of the bridge, Conrail, requested a temporary deviation to facilitate scheduled maintenance, tie and miter rail replacement at the bridge. The bridge must remain in the closed position to perform this maintenance.

Under this temporary deviation the draw may remain in the closed position as follows:

On October 23, 2015 from 6 a.m. to 10:26 a.m. and from 12:26 p.m. to 4:11 p.m.

On October 24, 2015 from 7:00 a.m. to 11:22 a.m. and from 1:32 p.m. to 5:13 p.m.

On October 25, 2015 from 7:46 a.m. to 12:17 p.m. and from 2:17 p.m. to 6:09 p.m.

On October 30, 2015 from 5:51 a.m. to 9:58 a.m. and from 11:58 a.m. to 4:36 p.m.

On October 31, 2015 from 6:41 a.m. to 10:56 a.m. and from 12:56 p.m. to 5:28 p.m.

On November 1, 2015 from 6:30 a.m. to 10:54 a.m. and from 12:54 p.m. to 5:25 p.m.

On November 6, 2015, 5:17 a.m. to 9:28 a.m. and from 11:28 a.m. to 3:32 p.m.

On November 7, 2015, from 6:07 a.m. to 10:15 a.m. and from 12:15 p.m. to 4:21 p.m.

On November 8, 2015 from 6:51 a.m. to 11:00 a.m. and from 1:00 p.m. to 5:06 p.m.

On November 13, 2015, from 3:49 a.m. to 7:40 a.m., from 9:40 a.m. to 2:28 p.m., and from 4:28 p.m. to 8:04 p.m.

On November 14, 2015, from 4:24 a.m. to 8:11 a.m. and from 10:11 a.m. to 3:07 p.m.

On November 15, 2015, from 4:59 a.m. to 8:50 a.m. and from 10:50 a.m. to 3:48 p.m.

On November 20, 2015 from 3:24 a.m. to 8:07 a.m., from 10:07 a.m. to 1:42 p.m., and from 3:42 p.m. to 8:36 p.m.

On November 21, 2015 from 4:27 a.m. to 9:09 a.m. and from 11:09 a.m. to 2:49 p.m.

On November 22, 2015 from 5:29 a.m. to 10:06 a.m. and from 12:06 p.m. to 3:53 p.m.

On December 4, 2015 from 3:07 a.m. to 7:23 a.m., from 9:23 a.m. to 1:14 p.m., and from 3:14 p.m. to 7:54 p.m.

On December 5, 2015 from 3:54 a.m. to 8:20 a.m. and from 10:20 a.m. to 2:06 p.m.

On December 6, 2015 from 4:48 a.m. to 9:10 a.m. and from 11:10 a.m. to 3:00 p.m.

On December 11, 2015 from 2:45 a.m. to 6:44 a.m., from 8:44 a.m. to 1:26 p.m., and from 3:26 p.m. to 7:08 p.m.

On December 12, 2015 from 3:26 a.m. to 7:17 a.m. and from 9:17 a.m. to 2:07 p.m.

On December 13, 2015 from 4:06 a.m. to 7:54 a.m. and from 9:54 a.m. to 2:48 p.m.

Vessels able to pass through the bridge in the closed positions may do so at anytime.

There are no alternate routes for vessel traffic. The bridge can be opened in an emergency.

The Coast Guard will also inform the users of the waterway through our Local Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

Dated: October 7, 2015. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
[FR Doc. 2015-26609 Filed 10-19-15; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2014-0259; FRL-9935-68-Region 6] Clean Air Act Redesignation Substitute for the Houston-Galveston-Brazoria 1-Hour Ozone Nonattainment Area; Texas AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a redesignation substitute demonstration provided by the State of Texas that the Houston-Galveston-Brazoria 1-hour ozone nonattainment area (HGB area) has attained the revoked 1-hour ozone National Ambient Air Quality Standards (NAAQS) due to permanent and enforceable emission reductions, and that it will maintain that NAAQS for ten years from the date of the EPA's approval of this demonstration.

DATES:

This final rule is effective on November 19, 2015.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2014-0259. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information 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 http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT:

Tracie Donaldson, (214) 665-6633, [email protected].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

I. Background

The background for today's action is discussed in detail in our August 18, 2015 proposal (80 FR 49970). In that notice, we proposed to approve the “Redesignation Substitute Report for the Houston-Galveston-Brazoria One-Hour Standard Nonattainment Area” (redesignation substitute report) submitted by TCEQ to EPA on July 22, 2014, that demonstrated attainment with the revoked 1-hour ozone standard. We did not receive any comments regarding our proposal.

II. Final Action

Based on the Clean Air Act's criteria for redesignation to attainment (CAA section 107(d)(3)(E)) and the regulation for a redesignation substitute (40 CFR 51.1105(b)), EPA is finding that Texas has successfully demonstrated it has met the requirements for a redesignation substitute. In this final action we are approving the redesignation substitute for the HGB area based on our evaluation that the demonstration provided by the State of Texas that shows that the HGB area has attained the revoked 1-hour ozone NAAQS due to permanent and enforceable emission reductions, and that it will maintain that NAAQS for ten years from the date of this final action. In addition, this final action is based on the proposal 1 and the accompanying Technical Support Document (TSD).

1 Proposal, Redesignation Substitute for Houston 1 hour ozone Standard, (80 FR 49970), August 18, 2015 and normally we would include in our basis for the final action comments and Comment Response Summary, but we received to comments on the cited proposal.

With this final action, Texas is no longer required to adopt any additional applicable 1-hour ozone NAAQS requirements for the area which have not already been approved into the SIP. Generally, final action would also allow the state to remove or revise the 1-hour ozone NAAQS nonattainment NSR provisions in the SIP and, upon a showing of consistency with the anti-backsliding checks in CAA sections 110(1) and 193 (if applicable), shift 1-hour ozone NAAQS requirements which are contained in the active portion of the SIP to the contingency measures portion of the SIP. We note that because the HGB area was classified as severe nonattainment for the 1997 ozone NAAQS the severe classification NSR requirement would still apply (October 1, 2008, 73 FR 56983).

III. Statutory and Executive Order Reviews

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves a demonstration provided by the State of Texas and finds that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1-hour ozone NAAQS; and imposes no additional requirements. Accordingly, I certify that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule does not impose any additional enforceable duties, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a demonstration provided by the State of Texas and finds that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1-hour ozone NAAQS; and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

The rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Additionally, this rule does not involve establishment of technical standards, and thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The rulemaking does not affect the level of protection provided to human health or the environment because approving the demonstration provided by Texas and finding that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1-hour ozone NAAQS does not alter the emission reduction measures that are required to be implemented in the HGB area, which was classified as Severe nonattainment for the 1997 8-hour ozone standard. See 73 FR 56983, October 1, 2008, and 40 CFR 51.1105. Additionally, the rule is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).

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 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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, Incorporation by reference, Ozone.

Authority:

42 U.S.C. 7401 et seq.

Dated: September 30, 2015. Ron Curry, Regional Administrator, Region 6.

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 SS—Texas 2. Section 52.2275 is amended by adding paragraph (j) to read as follows:
§ 52.2275 Control strategy and regulations: Ozone.

(j) Approval of Redesignation Substitute for the Houston-Galveston-Brazoria 1-hour Ozone Nonattainment Area. EPA has approved the redesignation substitute for the Houston-Galveston-Brazoria 1-hour ozone nonattainment area submitted by the State of Texas on July 22, 2014. The State is no longer being required to adopt any additional applicable 1-hour ozone NAAQS requirements for the area.

[FR Doc. 2015-26302 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2013-0614; FRL-9935-53-Region 6] Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving revisions to the Albuquerque/Bernalillo County, New Mexico State Implementation Plan (SIP). These revisions add administrative updates and clarifying changes to the state board and conflict of interest provisions in Albuquerque/Bernalillo County. The EPA is approving these revisions pursuant to section 110 of the Clean Air Act (CAA).

DATES:

This rule is effective on December 21, 2015 without further notice unless EPA receives relevant adverse comments by November 19, 2015. If EPA receives such comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R06-OAR-2013-0614, by one of the following methods:

www.regulations.gov. Follow the on-line instructions.

• Email: Mr. John Walser at [email protected]. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below.

• Mail or Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2013-0614. 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 through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT:

Mr. John Walser (6PD-L), (214) 665-7128, [email protected].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” means EPA.

Table of Contents I. Background A. What is a SIP? B. State Boards II. Overview of the June 13, 2013 State Submittal III. EPA's Evaluation of the Submittal IV. Final Action V. Statutory and Executive Order Reviews I. Background A. What is a SIP?

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the National Ambient Air Quality Standards (NAAQS) established by EPA. The NAAQS are established under section 109 of the CAA and currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. A SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that air quality in the state meets the NAAQS. It is required by section 110 and other provisions of the CAA. A SIP protects air quality primarily by addressing air pollution at its point of origin. SIPs can be extensive, containing state regulations or other enforceable documents, and supporting information such as city and county ordinances, monitoring networks, and modeling demonstrations. Each state must submit any SIP revision to EPA for approval and incorporation into the federally-enforceable SIP.

The New Mexico SIP includes a variety of control strategies, including the regulations that outline general provisions applicable to Albuquerque/Bernalillo County Air Quality Control Board (AQCB) regulations and state boards/conflict of interest requirements.

B. State Boards

The Act, section 128(a) entitled State Boards, requires each SIP to contain provisions which ensure that: (1) Any board or body which approves permits or enforcement orders under the Act shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under the Act, and (2) any potential conflicts of interest by members of such board or body, or the head of an executive agency with similar powers, be adequately disclosed.

A state may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an implementation plan.1

1 Also see Pages 39 through 43 of EPA guidance, dated September 13, 2013 entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” which may be accessed in the docket for this rulemaking at http://www.regulations.gov, Docket No. EPA-R06-OAR-2013-0614.

The New Mexico Air Quality Control Act (section 74-2-4) authorizes Albuquerque/Bernalillo County to locally administer and enforce the State Air Quality Control Act by providing for a local air quality control program. Thus, State law views Albuquerque/Bernalillo County and the remainder of the State of New Mexico as distinct air quality control entities. Therefore, each entity is required to submit its own SIP revision in order to completely satisfy the requirements of section 128(a) of the Clean Air Act for the entire State of New Mexico.

The EPA approved the SIP revision for Board composition and conflict of interest disclosure requirements on June 1, 1999 (see 64 FR 29235). Since that time the supporting city and county ordinances have been revised.

II. Overview of the June 13, 2013 State Submittal

The revisions we are approving address City of Albuquerque and Bernalillo County, Code of Ordinances governing Air Quality Control Board (AQCB) composition and conflict of interest provisions required to meet the requirements of section 128(a) of the CAA. These revisions are mostly administrative in nature and/or add clarifying language to the City of Albuquerque and Bernalillo County Ordinances already contained in the SIP. These ordinances and revisions do not apply to Indian lands over which the AQCB lacks jurisdiction. We have prepared a Technical Support Document (TSD) for this action which details our evaluation. Our TSD may be accessed in the docket for this action, at http://www.regulations.gov, Docket No. EPA-R06-OAR-2013-0614.

We are also approving a ministerial change to the Code of Federal Regulations (CFR) at 40 CFR 52.1620(e). The entry titled “City of Albuquerque request for redesignation” was mistakenly placed in the first table of 40 CFR 52.1620(e) under the heading “EPA Approved city of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions” and belongs in the second table of 40 CFR 52.1620(e) under the heading “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP.”

On June 13, 2013, New Mexico submitted revisions to the Albuquerque/Bernalillo County SIP. The submittal was adopted consistent with the public notice SIP requirements of CAA section 110(l). The revisions modified various chapters to the City of Albuquerque and Bernalillo County ordinances for the Air Quality Control Board and the Metropolitan Environmental Health Advisory Board. The revisions include all the adopted changes to the ordinances since the last EPA SIP approval in June of 1999. Changes to the ordinances include adding clarifying text regarding conflict of interest, renumbering to account for changes to subsections and other ministerial changes that reflect the correct citations to currently effective versions of the ordinances in use today. Other minor amendments are added or deleted for further clarification. Please see Table 1 below for the list of ordinances, and the TSD for further details:

Table 1—City of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions Exhibit Description Exhibit 2c Metropolitan Environmental Health Advisory Board, City of Albuquerque, Chapter 9, Article 5, Part 6. Exhibit 3c Metropolitan Environmental Health Advisory Board, Bernalillo County Code of Ordinances, Chapter 42, Article II, Sections 42-36 to 42-39. Exhibit 4c Metropolitan Environmental Health Advisory Board, Bernalillo County Code of Ordinances, Chapter 42, Article II, Sections 42-36 through 42-40. Exhibit 5c Joint Air Quality Control Board Ordinance, City of Albuquerque, Chapter 9, Article 5, Part 1. Exhibit 6c Joint Air Quality Control Board Ordinance, Bernalillo County Code of Ordinances, Chapter 30, Article II. Exhibit 7c Public Boards, City of Albuquerque Chapter 1, Article XII Sections 1-12-1 to 3. Exhibit 8c Conflict of Interest, City of Albuquerque Chapter 2, Article III Sections 3-3-1 to 13. Exhibit 9c Code of Ethics, City of Albuquerque Charter, Article XII, Section 4. Exhibit 10c Code of Ethics, Bernalillo County Code of Ordinances, Chapter 2, Article III, Division 4—Code of Ethics, Sections 2-126 to 2-136. Exhibit 11c City Code of Conduct, City of Albuquerque, Personnel Rules & Regulations.

The Governor's letter dated June 26, 2013 accompanying the submittal indicated that only those portions or sections of the ordinances dealing with state boards or conflict of interest are being submitted for EPA review and action. Therefore, the following revisions, as shown in Table 1 above, are not being considered before EPA for review as they do not address board composition or conflict of interest provisions. The ordinances not being proposed include Exhibit 7c—Article 6: Public Boards, Commissions and Committees and Exhibit 11c—City Code of Conduct, City of Albuquerque, as these ordinances involve personnel rules and regulations, conditions of employment, the conduct and organizational structure of a board, commission or committee and do not specifically address board composition and conflict of interest pursuant to CAA section 128.

Additionally, since the Metropolitan Environmental Health Advisory Board (MEHAB) has effectively ceased to function for over 25 years, as confirmed with the City of Albuquerque,2 the MEHAB ordinances are not legally required or practicably necessary for the continued operation of the AQCB or the City of Albuquerque Environmental Health Department. Therefore, Exhibits 2c, 3c and 4c, dealing with the MEHAB (see Table 1 above), are not applicable to the AQCB and are not considered as a basis for this action.

2 Emails from Ed Merta, City of Albuquerque, Environmental Health Department, dated August 28, 2015 and September 10, 2015 may be accessed in the docket for this action.

The remaining Exhibits 5c (only Section 9-5-1-3), 6c (only section 30-32), 8c, 9c, and 10c all involve state boards or conflict of interest and are being considered part of this action.

Our evaluation of the submittal finds that the submitted SIP revisions were adopted by Albuquerque/Bernalillo County after reasonable notice, a public comment period, a corresponding public hearing, and that approval of the revisions would not interfere with any CAA requirement, are consistent with the requirements of section 128 of the CAA (see background section of this notice), and are approvable, as discussed below.

III. EPA's Evaluation of the Submittal

Our primary consideration for determining the approvability of the New Mexico submittal is whether these proposed revisions comply with CAA section 110(l) and 128 of the CAA. Section 110(l) of the Act provides that a SIP revision must be adopted by a State after reasonable notice and public hearing. The submitted revisions address the City of Albuquerque and Bernalillo County, Code of Ordinances governing Air Quality Control Board (AQCB) composition and conflict of interest provisions that address the requirements of Section 128 of the CAA. Please see the TSD for our detailed evaluation.

The submitted revisions update the currently the SIP approved versions, and includes revisions that are ministerial in nature and mostly involve renumbering and additions/deletions that add further clarity.

Revisions to Ordinances for the Joint Air Quality Control Board, Conflict of Interest and Code of Ethics

The AQCB is submitting revisions to update the SIP to incorporate the latest City of Albuquerque and Bernalillo County Ordinances and policies regarding board composition and conflict of interest as it applies to the Air Board. The previous SIP-approval dates back to 1999. The proposed revisions incorporate into the SIP with the most current versions of affected ordinances and policies concerning state board composition and conflict of interest.

For Exhibit 5c, the ordinance that deals with the Joint Air Quality Control Board, the revisions in section 9-5-1-3 highlight the requirements for state boards and conflict of interest provisions consistent with federal requirements found in CAA section 128(a)(1). Section 9-5-1-3(B)(4)(a) of Exhibit 5c states that “at least a majority of the membership of the Board shall be individuals who represent the public interest and meet the requirements of the state and federal guidelines set forth in the New Mexico Air Quality Control Act, as amended, and the federal CAA, 42 U.S.C.A. Section 7401, et seq., as amended.” Section 9-5-1-3(E) states “any member of the Board who has a conflict of interest regarding a matter before the Board shall disqualify himself or herself from the discussion and shall abstain from the vote on such matter. A conflict of interest means any interest which may yield, directly or indirectly any monetary or other material benefit to the Board member or the member's spouse or minor child.” These sections are wholly consistent with the requirements found in CAA section 128(a)(1) and (2) as outlined in Section I(B) of this document titled “State Boards.” Further analysis and details of the revisions are included in the TSD for this rulemaking.

Therefore, EPA finds that these revisions are consistent with federal requirements, and also are consistent with what is currently in the New Mexico SIP for Albuquerque/Bernalillo County (see 40 CFR 52.1620, paragraph (e)—EPA Approved Nonregulatory Provisions).

For Exhibit 6c, only Section 30-32 of the Exhibit—Joint Air Quality Control Board, is part of the State Boards submittal. The revisions in Exhibit 6c, specifically section 30-32—Joint Air Quality Control Board, establish the creation and authority of the Board, also include the provisions regarding conflict of interest (as discussed above for Exhibit 5c), and are consistent with federal requirements and what is currently in the New Mexico SIP for Albuquerque/Bernalillo County.

For Exhibit 8c, Article 3: Conflict of Interest Ordinance, the revisions to the SIP include renumbering and clarification of the purpose of definitions, meaning that for the purpose of the ordinance, the definitions contained in the ordinance shall apply unless the context clearly indicates or requires a different meaning. The Conflict of Interest Ordinance is already contained in the SIP, therefore, these revisions add clarity and are approvable by EPA. For example, the Conflict of Interest Ordinance (Exhibit 8c) outlines conflict of interest provisions for employees and former employees, and includes details on the prohibition on nepotism and restrictions on outside employment. The 1985 version of this ordinance is currently SIP-approved (see 64 FR 29235).

For Exhibit 9c, Charter of the City of Albuquerque, Article XII: Code of Ethics, Section 4—Conflict of Interest, the ordinance clearly outlines conflict of interest provisions for officials, and includes details on the prohibition on gifts and private financial interest. The previous version of this ordinance (Article XII: Code of Ethics, adopted in 1989) is currently SIP-approved. Therefore, only redlines and strikeouts to Section 4 of that ordinance are submitted as revisions (please see the TSD for this action). The addition of Section 4(b) to the ordinance outlines the prohibition on a member of the City Council from participating in any debate or vote on any matter which will likely result in any benefit to the member which benefit is greater that the benefit to the public in general. The other key revision adds specific criteria for disqualifications as presented in Section 4(c). Both the addition of subsections 4(b) and 4(c) enhance the ordinance by adding further clarity and stringency to the conflict of interest requirements. Section 128 of the CAA states that a State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, which are more stringent, and the Administrator shall approve any such requirement as submitted. Other revisions are ministerial in nature and mostly involve renumbering and additions/deletions that add clarity (please see the TSD for details).

For Exhibit 10c, Bernalillo County, New Mexico, Code of Ordinances, Chapter 2—Administration, Article III—Officers and Employees, Division 4—Code of Ethics, the Bernalillo County Commission Ordinance, revises the SIP-approved version (previously Ordinance 85-3) to further enhance the requirements pursuant to section 128 of the CAA. This Code of Ethics Ordinance establishes a code of ethics for all elected officials and employees and volunteers of county government, including members of boards, committees and commissions. For example, in Section 2-130—Standards of conduct, the ordinance clearly indicates that the standards of conduct apply to elected officials, employees and volunteers at all times. Section 128 of the CAA does not require volunteers to be subject to the conflict of interest provisions, and adding them makes the ordinance more stringent. Additionally, the ordinance requires such candidates, elected officials, employees, and volunteers to disclose personal interests, financial or otherwise, in matters of the county. Other revisions include establishing a declaration of policy section, (Section 2-127), standards of conduct including conflict of interest (Section 2-130), disclosure of certain financial interests (Section 2-131), reporting violations of code of ethics (Section 2-132), and Ethics Board requirements. These revisions enhance the current SIP-approved version, which focused on elected officials and employees and did not specifically identify volunteers as well. EPA considers these revisions more stringent than the requirements pursuant to section 128 of the CAA, and are approvable.

Additionally, CAA section 110(l) states that the EPA cannot approve a SIP revision if that revision would interfere with any applicable requirement regarding attainment, reasonable further progress (RFP) or any requirement established in the CAA. The revisions do not interfere with any applicable requirement, but enhance the current SIP-approved version as discussed above. Additionally, approvability of these actions are also based upon EPA's guidance for state boards and conflict of interest provisions as discussed in the TSD for this rulemaking.

EPA approves the revisions and updates for Exhibits 5c, 6c, 8c, 9c and 10c pursuant to section 110 of the CAA, and has determined they are consistent with the requirements in section 128(a) of the CAA.

IV. Final Action

Pursuant to section 110 of the Act, EPA is approving through a direct final action, revisions to the New Mexico SIP that were submitted on June 12, 2013. We evaluated the state's submittal and determined that they meet the applicable requirements of the CAA section 128(a). Also, in accordance with CAA section 110(l), the proposed revisions will not interfere with attainment of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA.

EPA is publishing this rule without prior proposal because we view these as non-controversial amendments and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on December 21, 2015 without further notice unless we receive relevant adverse comments by November 19, 2015. If we receive relevant adverse comments, we will publish a timely withdrawal of this direct final rulemaking in the Federal Register informing the public that the direct final rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. 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 proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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 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, 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 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. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

Authority:

42 U.S.C. 7401 et seq.

Dated: September 30, 2015. Ron Curry, Regional Administrator, Region 6.

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 GG—New Mexico 2. In § 52.1620(e): a. The first table entitled “EPA-Approved New Mexico Statutes in the Current New Mexico SIP” is amended by revising all entries in the table under the heading “EPA Approved City of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions”; and b. The second table entitled “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP” is amended by adding entry “City of Albuquerque request for redesignation” before the entry entitled “Waiver of NOX control requirements.”.

The addition and revisions read as follows:

§ 52.1620 Identification of plan.

(e) * * *

EPA-Approved New Mexico Statutes in the Current New Mexico SIP State citation Title/subject State approval/
  • effective date
  • EPA approval date Comments
    *         *         *         *         *         *         * EPA Approved City of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions City of Albuquerque, Chapter 9, Article 5, Part 1: Air Quality Control Board, Sections 9-5-1-1 to 9-5-1-15, and 9-5-1-98 Joint Air Quality Control Board 06/12/2013 10/20/2015, [Insert Federal Register citation Section 9-5-1-3 Joint Air Quality Control Board only. Bernalillo County, Code of Ordinances, Chapter 30, Article II, Air Pollution; Section 30-31 to 30-47 Joint Air Quality Control Board 06/12/2013 10/20/2015, [Insert Federal Register citation Section 30-32—Joint Air Quality Control Board only. City of Albuquerque, Chapter 2, Article III, Sections 3-3-1 to 3-3-13 Conflict of Interest 06/12/2013 10/20/2015, [Insert Federal Register citation City of Albuquerque Charter, Article XII, Section 4—Conflict of Interest Code of Ethics 06/12/2013 10/20/2015, [Insert Federal Register citation Bernalillo County Ordinance, Chapter 2, Administration, Article III, Officers and Employees, Division 4, Code of Ethics, Sections 2-126 to 2-136 Code of Ethics 06/12/2013 10/20/2015, [Insert Federal Register citation]
    EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP Name of SIP provision Applicable geographic or nonattainment area State submittal/
  • effective date
  • EPA approval date Explanation
    *         *         *         *         *         *         * City of Albuquerque request for redesignation Carbon monoxide maintenance plan and motor vehicle emission budgets 06/22/1998 5/24/2000, 65 FR 33460 *         *         *         *         *         *         *
    [FR Doc. 2015-26306 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2014-0503; FRL-9935-17-Region 5] Air Plan Approval; Minnesota; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve some elements and disapprove other elements of state implementation plan (SIP) submissions from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide (SO2), and 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. EPA is disapproving certain elements of Minnesota's submissions relating to Prevention of Significant Deterioration (PSD) requirements. Minnesota already administers Federally promulgated regulations that address the disapprovals described in this rulemaking. Therefore, the state is not obligated to submit any new or additional regulations as a result of this disapproval. The proposed rulemaking associated with this final action was published on June 26, 2015, and EPA received one comment letter during the comment period, which ended on July 27, 2015.

    DATES:

    This final rule is effective on November 19, 2015.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2014-0503. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, 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 at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Eric Svingen, Environmental Engineer, at (312) 353-4489 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

    I. What is the background of these SIP submissions? II. What is our response to comments received on the proposed rulemaking? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is the background of these SIP submissions? A. What state submissions does this rulemaking address?

    This rulemaking addresses June 12, 2014, submissions and a February 3, 2015, clarification from the Minnesota Pollution Control Agency (MPCA) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    B. Why did the state make these SIP submissions?

    Under section 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for the NAAQS already meet those requirements.

    EPA has highlighted this statutory requirement in multiple guidance documents. The most recent, entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2),” was published on September 13, 2013.

    C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Minnesota that address the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1), which states that states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as SIP submissions that address the nonattainment planning requirements of part D and the PSD requirements of part C of title I of the CAA, and “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A.

    This rulemaking will not cover three substantive areas because they are not integral to acting on a state's infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (“SSM”) at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public notice or without requiring further approval by EPA, that may be contrary to the CAA; and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemakings. A detailed history, interpretation, and rationale as they relate to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (see 79 FR 27241 at 27242-27245).

    II. What is our response to comments received on the proposed rulemaking?

    The public comment period for EPA's proposed actions with respect to Minnesota's satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on July 27, 2015. EPA received one comment letter, which was from the Sierra Club. A synopsis of the comments contained in this letter and EPA's responses are provided below.

    Comment 1: The Sierra Club states that, on its face, the CAA “requires ISIPs [infrastructure SIPs] to be adequate to prevent exceedances of the NAAQS.” In support, the commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which the commenter claims include the maintenance plan requirement. Sierra Club notes the CAA definition of “emission limit” and reads these provisions together to require “enforceable emission limits on sources that are sufficient to ensure maintenance of the NAAQS.”

    Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complex structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program.

    Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”

    In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS.

    In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A).

    Additionally, Congress replaced the clause “as may be necessary to insure [sic] attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

    With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

    Comment 2: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 asserting that they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Minnesota. Sierra Club also contends that the legislative history of the CAA supports its interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

    Response 2: The CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs; they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP.

    Comment 3: Sierra Club cites to 40 CFR 51.112(a), which provides that each plan must “demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act was amended to separate Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations nonetheless apply to ISIPs.” The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .” 51 FR 40656 (November 7, 1986).

    Response 3: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS violations” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). In addition, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182.

    The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.

    Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, Ox and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

    Comment 4: The Sierra Club references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs, and claims that they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. It first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS (71 FR 12623, March 13, 2006). In that action, EPA cited section 110(a)(2)(A) of the CAA as a basis for disapproving a revision to the state plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State (78 FR 78721, December 27, 2013). In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

    The Sierra Club also asserts that EPA stated in its Infrastructure SIP Guidance that states could postpone specific requirements for startup, shutdown, and malfunction (SSM), but did not specify the postponement of any other requirements. The commenter concludes that emissions limits ensuring attainment of the standard cannot be delayed.

    Response 4: EPA does not agree that the two prior actions referenced by the Sierra Club establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rulemaking and the proposed and final Indiana rulemakings that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP addressed a control strategy SIP and not an infrastructure SIP. Similarly, the Indiana action does not provide support for the Sierra Club's position (78 FR 78720, December 27, 2013). The review in that rule was of a completely different requirement than the section 110(a)(2)(A) SIP. In that case, the State had an approved SO2 attainment plan and was seeking to remove from the SIP provisions relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO2 emissions and thus interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

    EPA also does not agree that any requirements related to emission limits have been postponed. As stated in a previous response, EPA interprets the requirements under 110(a)(2)(A) to include enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean, for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Emission limits providing for attainment of a new standard are triggered by the designation process and have a different schedule in the CAA than the submittal of infrastructure SIPs.

    As discussed in detail in the proposed rules, EPA finds that the Minnesota SIPs meet the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS, and that Minnesota has demonstrated that they have the necessary tools to implement and enforce a NAAQS.

    Comment 5: Sierra Club discusses several cases applying to the CAA which it claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS and demonstrate maintenance throughout the area. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the state”). The commenter also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

    Response 5: None of the cases the commenter cites supports the commenter's contention that section 110(a)(2)(A) requires that infrastructure SIPs include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, 421 U.S. 60, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that were required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision.

    In Train, a case that was decided almost 40 years ago, the court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus, the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

    The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

    At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here.

    In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a Federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the court's holding in the case.

    The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court's statement that “SIPs must include certain measures Congress specified” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

    Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

    Comment 6: Sierra Club asserts that EPA cannot approve Minnesota's infrastructure submittals for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS because Minnesota has not incorporated the standards into their SIP. The commenter points out that the Minnesota Administrative Rules section 7009.0800 does list previous standards but does not yet include the ones listed above and is therefore out of compliance with the CAA.

    Response 6: There is not a CAA requirement for states to incorporate the NAAQS updates into their SIPs. Therefore, EPA disagrees with the commenter that by not doing so, Minnesota is out of compliance with the CAA. The states are required to comply with the NAAQS regardless of whether or not they are in the SIP and Minnesota Statue 116.07 gives MPCA broad authority to implement rules and standards as needed for the purpose of controlling air pollution.

    Comment 7: Citing section 110(a)(2)(A) of the CAA, Sierra Club contends that EPA may not approve the proposed infrastructure SIP because it does not include enforceable 1-hour SO2 emission limits for sources that show NAAQS exceedances through modeling. Sierra Club asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO2 emissions limits or other required measures to ensure attainment and maintenance of the SO2 NAAQS in areas not designated nonattainment as required by section 110(a)(2)(A). Sierra Club asserts that emission limits are especially important for meeting the 2010 SO2 NAAQS because SO2 impacts are strongly source-oriented. Sierra Club states that coal-fired electric generating units (EGUs) are large contributors to SO2 emissions but contends that Minnesota did not demonstrate that emissions allowed by the proposed infrastructure SIPs from such large sources of SO2 will ensure compliance with the 2010 SO2 NAAQS. Sierra Club claims that the proposed infrastructure SIP would allow major sources to continue operating with present emission limits. Sierra Club then refers to air dispersion modeling it conducted for four coal-fired EGUs in Minnesota including the Minnesota Power Boswell Coal Plant (“Boswell Plant”), Otter Tail Hoot Lake Coal Plant (“Hoot Lake Coal Plant”), Xcel Energy Sherburne County Coal Plant (“Sherco Coal Plant”), and Taconite Harbor Energy Center (“Taconite Harbor Plant”). Sierra Club asserts that the results of the air dispersion modeling it conducted employing EPA's AERMOD program for modeling used the plants' allowable and actual emissions, and showed that the plants could cause exceedances of the 2010 SO2 NAAQS with either allowable emissions at all four facilities or actual emissions at the Sherco Plant and Taconite Harbor Plant.1

    1 Sierra Club asserts its modeling followed protocols pursuant to 40 CFR part 50, appendix W, EPA's March 2011 guidance for implementing the 2010 SO2 NAAQS, and EPA's December 2013 SO2 NAAQS Designation Technical Assistance Document.

    Based on the modeling, Sierra Club asserts that the Minnesota SO2 infrastructure SIP submittals authorizes these EGUs to cause exceedances of the NAAQS with allowable and actual emission rates, and therefore that the infrastructure SIP fails to include adequate enforceable emission limitations or other required measures for sources of SO2 sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS. As a result, Sierra Club claims EPA must disapprove Minnesota's proposed SIP revisions. In addition, Sierra Club asserts that additional emission limits should be imposed on the plants that ensure attainment and maintenance of the NAAQS at all times.

    Response 7: EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions, also known as infrastructure SIPs, should contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. As mentioned above, with regard to the requirement for emission limitations, EPA has interpreted this to mean that states may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit.

    EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in AQCRs and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].” In 1977, Congress recognized that the existing structure was not sufficient and that many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS, and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 of the CAA did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. In addition, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS, depending upon how air quality status is judged under other provisions of the CAA, such as the designations process under section 107.

    As stated in response to a previous comment, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state must demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as an adequate monitoring network and an enforcement program. As discussed above, EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.” Infrastructure SIP Guidance at p. 2. On April 12, 2012, EPA explained its expectations regarding the 2010 SO2 NAAQS infrastructure SIPs via letters to each of the states. EPA communicated in the April 2012 letters that all states were expected to submit SIPs meeting the “infrastructure” SIP requirements under section 110(a)(2) of the CAA by June 2013. At the time, the EPA was undertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment status with the SO2 NAAQS and implementing this NAAQS. EPA was abundantly clear in the April 2012 letters to states that EPA did not expect states to submit substantive attainment demonstrations or modeling demonstrations showing attainment for potentially unclassifiable areas in infrastructure SIPs due in June 2013, as EPA had previously suggested in its 2010 SO2 NAAQS preamble based upon information available at the time and in prior draft implementation guidance in 2011 while EPA was gathering public comment. The April 2012 letters to states recommended states focus infrastructure SIPs due in June 2013, such as Minnesota's SO2 infrastructure SIP, on “traditional infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for potentially unclassifiable areas.2

    2 In EPA's final SO2 NAAQS preamble (75 FR 35520, June 22, 2010) and subsequent draft guidance in March and September 2011, EPA had expressed its expectation that many areas would be initially designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support their designations recommendations due in June 2011. In order to address concerns about potential violations in these potentially unclassifiable areas, EPA initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling by June 2013 (under section 110(a)) that show how their unclassifiable areas would attain and maintain the NAAQS in the future. Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (for discussion purposes with Stakeholders at meetings in May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White Paper its clarified implementation position that it was no longer recommending such attainment demonstrations for unclassifiable areas for June 2013 infrastructure SIPs. Id. EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110 and 191 of the CAA. Section 191 of the CAA requires states to submit SIPs in accordance with section 172 for areas designated nonattainment with the SO2 NAAQS. After seeking such comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 191 and 172. See Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1-10, April 23, 2014. In September 2013, EPA had previously issued specific guidance relevant to infrastructure SIP submissions due for the NAAQS, including the 2010 SO2 NAAQS. See Infrastructure SIP Guidance.

    Therefore, EPA continues to believe that the elements of section 110(a)(2) which address SIP revisions for nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subparts 2 through 5 under part D of title I. The CAA directs states to submit these 110(a)(2) elements for nonattainment areas on a separate schedule from the “structural requirements” of 110(a)(2) which are due within three years of adoption or revision of a NAAQS. The infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS. Thus, elements relating to demonstrating attainment for areas not attaining the NAAQS are not necessary for states to include in the infrastructure SIP submission, and the CAA does not provide explicit requirements for demonstrating attainment for areas potentially designated as “unclassifiable” (or that have not yet been designated) regarding attainment with a particular NAAQS.

    As stated previously, EPA believes that the proper inquiry at this juncture is whether Minnesota has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. States, like Minnesota, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, Minnesota submitted lists of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in detail in our proposed rulemakings. Minnesota's SIP revisions reflect several provisions that have the ability to reduce SO2. Although the Minnesota SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions will provide benefits for the 2010 SO2 NAAQS. The identified Minnesota SIP measures help to reduce overall SO2 and are not limited to reducing SO2 levels to meet one specific NAAQS.

    Additionally, as discussed in EPA's proposed rule, Minnesota has the ability to revise its SIPs when necessary (e.g., in the event the Administrator finds its plans to be substantially inadequate to attain the NAAQS or otherwise meet all applicable CAA requirements) as required under element H of section 110(a)(2).

    EPA believes the requirements for emission reduction measures for an area designated nonattainment to come into attainment with the 2010 primary SO2 NAAQS are in sections 172 and 192 of the CAA, and, therefore, the appropriate time for implementing requirements for necessary emission limitations for demonstrating attainment with the 2010 SO2 NAAQS is through the attainment planning process contemplated by those sections of the CAA. On August 5, 2013, EPA designated as nonattainment most areas in locations where existing monitoring data from 2009-2011 indicated violations of the 2010 SO2 standard. EPA did not designate any portions of Minnesota as nonattainment areas for the 2010 SO2 NAAQS (78 FR 47191, August 5, 2013). In separate future actions, EPA will address the designations for all other areas for which the Agency has yet to issue designations. See, e.g., 79 FR 27446 (May 13, 2014) (proposing process and timetables by which state air agencies would characterize air quality around SO2 sources through ambient monitoring and/or air quality modeling techniques and submit such data to the EPA for future attainment status determinations under the 2010 SO2 NAAQS). For the areas designated nonattainment in August 2013, attainment SIPs were due by April 4, 2015, and must contain demonstrations that the areas will attain as expeditiously as practicable, but no later than October 4, 2018, pursuant to sections 172, 191 and 192, including a plan for enforceable measures to reach attainment of the NAAQS. EPA believes it is not appropriate to bypass the attainment planning process by imposing separate requirements outside the attainment planning process. Such actions would be disruptive and premature absent exceptional circumstances and would interfere with a state's planning process. See In the Matter of EME Homer City Generation LP and First Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-2012-07, and III-2013-01 (July 30, 2014) (hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require imposition of SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). EPA believes that the history of the CAA and intent of Congress for the CAA as described above demonstrate clearly that it is within the section 172 and general part D attainment planning process that Minnesota must include additional SO2 emission limits on sources in order to demonstrate future attainment, where needed.

    The Sierra Club's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard is also not supported. As explained previously in response to the background comments, EPA notes this regulatory provision clearly on its face applies to plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of the Minnesota SO2 infrastructure SIP.

    As noted in EPA's preamble for the 2010 SO2 NAAQS, determining compliance with the SO2 NAAQS will likely be a source-driven analysis, and EPA has explored options to ensure that the SO2 designations process realistically accounts for anticipated SO2 reductions at sources that we expect will be achieved by current and pending national and regional rules. See 75 FR 35520 (June 22, 2010). As mentioned previously above, EPA has proposed a process to address additional areas in states which may not be attaining the 2010 SO2 NAAQS. See 79 FR 27446 (May 13, 2014) (proposing process to gather further information from additional monitoring or modeling that may be used to inform future attainment status determinations). In addition, in response to lawsuits in district courts seeking to compel EPA's remaining designations of undesignated areas under the NAAQS, EPA has been placed under a court order to complete the designations process under section 107. However, because the purpose of an infrastructure SIP submission is for more general planning purposes, EPA does not believe Minnesota was obligated during this infrastructure SIP planning process to account for controlled SO2 levels at individual sources. See Homer City/Mansfield Order at 10-19.

    Minnesota currently has the ability to control emissions of SO2. MPCA identified enforceable permits and administrative orders with SO2 emission limits. In previous rulemakings, EPA has approved these permits and orders into Minnesota's SIP (see 59 FR 17703, April 14, 1994; 59 FR 17703, 64 FR 5936, February 8, 1999; 66 FR 14087, March 9, 2001; 67 FR 8727, February 26, 2002; 72 FR 68508, December 5, 2007; 74 FR 18138, April 21, 2009; 74 FR 18634, April 24, 2009; 74 FR 18638, April 24, 2009; 74 FR 63066, December 2, 2009; 75 FR 45480, August 3, 2010; 75 FR 48864, August 12, 2010; 75 FR 81471, December 28, 2010; and 78 FR 28501, May 15, 2013). Also, an administrative order issued as part of Minnesota's Regional Haze SIP includes SO2 limits. Additionally, state rules that have been incorporated into Minnesota's SIP (at Minn. R. 7011.0500 to 7011.0553, 7011.0600 to 7011.0625, 7011.1400 to 7011.1430, 7011.1600 to 7011.1605, and 7011.2300) contain SO2 emission limits. Also, Minn. R. 7011.0900 to 7011.0909 include fuel sulfur content restrictions that can limit SO2 emissions. These regulations support compliance with and attainment of the 2010 SO2 NAAQS.

    Regarding the air dispersion modeling conducted by Sierra Club pursuant to AERMOD for the coal-fired EGUs, EPA is not at this stage prepared to opine on whether it demonstrates violations of the NAAQS, and does not find the modeling information relevant at this time for review of an infrastructure SIP. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations and other actions in which areas' air quality status is determined, EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs needed for the 2010 SO2 NAAQS. See April 12, 2012, letters to states regarding SO2 implementation and Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. In contrast, EPA recently discussed modeling for designations in our May 14, 2014, proposal at 79 FR 27446 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions.

    In conclusion, EPA disagrees with Sierra Club's statements that EPA must disapprove Minnesota's infrastructure SIP submission because it does not establish at this time specific enforceable SO2 emission limits either on coal-fired EGUs or other large SO2 sources in order to demonstrate attainment with the NAAQS.

    Comment 8: Sierra Club asserts that modeling is the appropriate tool for evaluating adequacy of infrastructure SIPs and ensuring attainment and maintenance of the 2010 SO2 NAAQS. The commenter refers to EPA's historic use of air dispersion modeling for attainment designations as well as “SIP revisions.” The commenter cites to prior EPA statements that the Agency has used modeling for designations and attainment demonstrations, including statements in the 2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 SO2 Guideline Document, as modeling could better address the source-specific impacts of SO2 emissions and historic challenges from monitoring SO2 emissions.3 The commenter also discusses MPCA's previous use and support of SO2 modeling, specifically citing a Letter from the MPCA Commissioner to the EPA and their use of modeling for setting title V limits.

    3 The commenter also cites to a 1983 EPA Memorandum on section 107 designations policy regarding use of modeling for designations and to the 2012 Mont. Sulphur & Chem. Co. case where EPA had designated an area in Montana as nonattainment due to modeled violations of the NAAQS.

    The commenter discusses statements made by EPA staff discussing use of modeling and monitoring in setting emission limitations or determining ambient concentrations resulting from sources, discussing performance of AERMOD as a model, and discussing that modeling is capable of predicting whether the NAAQS is attained and whether individual sources contribute to SO2 NAAQS violations. The commenter cites to EPA's history of employing air dispersion modeling for increment compliance verifications in the permitting process for the PSD program required in part C of the CAA. The commenter claims the Boswell Plant, Hoot Lake Coal Plant, Sherco Coal Plant, and Taconite Harbor Plant are examples of sources in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts.

    The commenter asserts EPA's use of air dispersion modeling was upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU challenged EPA's use of CAA section 126 to impose SO2 emission limits on a source due to cross-state impacts. The commenter claims the Third Circuit in GenOn REMA upheld EPA's actions after examining the record which included EPA's air dispersion modeling of the one source as well as other data.

    The commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009) for the general proposition that it would be arbitrary and capricious for an agency to ignore an aspect of an issue placed before it and for the statement that an agency must consider information presented during notice-and-comment rulemaking.

    Finally, the commenter claims that Minnesota's proposed SO2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure Minnesota will achieve and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must require adequate, 1-hour SO2 emission limits in the infrastructure SIP that show no exceedances of NAAQS when modeled.

    Response 8: EPA agrees with the commenter that air dispersion modeling, such as AERMOD, can be an important tool in the CAA section 107 designations process and in the attainment SIP process pursuant to sections 172 and 192, including supporting required attainment demonstrations. EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the designations process and attainment demonstration process, as well as in analyses of whether existing approved SIPs remain adequate to show attainment and maintenance of the SO2 NAAQS. However, EPA disagrees with the commenter that EPA must disapprove the Minnesota SO2 infrastructure SIP for its alleged failure to include source-specific SO2 emission limits that show no exceedances of the NAAQS when modeled.

    As discussed previously above and in the Infrastructure SIP Guidance, EPA believes the conceptual purpose of an infrastructure SIP submission is to ensure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS and that the infrastructure SIP submission process provides an opportunity to review the basic structural requirements of the air agency's air quality management program in light of the new or revised NAAQS. See Infrastructure SIP Guidance at p. 2. EPA believes the attainment planning process detailed in part D of the CAA, including attainment SIPs required by sections 172 and 192 for areas not attaining the NAAQS, is the appropriate place for the state to evaluate measures needed to bring nonattainment areas into attainment with a NAAQS and to impose additional emission limitations such as SO2 emission limits on specific sources. While EPA had initially suggested in the final 2010 SO2 NAAQS preamble (75 FR 35520) and subsequent draft guidance in March and September 2011 that EPA recommended states submit substantive attainment demonstration SIPs based on air quality modeling in section 110(a) SIPs due in June 2013 to show how areas expected to be designated as unclassifiable would attain and maintain the NAAQS, these initial statements in the preamble and 2011 draft guidance were based on EPA's initial expectation that most areas would by June 2012 be initially designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support designations recommendations in 2011. However, after receiving comments from the states regarding these initial statements and the timeline for implementing the NAAQS, EPA subsequently stated in the April 12, 2012 letters to the states and in the May 2012 Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion that EPA was clarifying its implementation position and that EPA was no longer recommending such attainment demonstrations supported by air dispersion modeling for unclassifiable areas (which had not yet been designated) for June 2013 infrastructure SIPs. EPA reaffirmed this position that EPA did not expect attainment demonstrations for areas not designated nonattainment for infrastructure SIPs in its February 6, 2013, memorandum, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard.” 4 As previously mentioned, EPA had stated in the preamble to the 2010 SO2 NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110, 172 and 191-192 of the CAA. After receiving such further comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 191-192 and 172 and proposed a process for further designations for the 2010 SO2 NAAQS, which could include use of air dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions and 79 FR 27446 (May 13, 2014) (proposing process and timetables for additional SO2 designations informed through ambient monitoring and/or air quality modeling). While the EPA guidance for attainment SIPs and the proposed process for additional designations discusses use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance did not require use of air dispersion modeling to inform emission limitations for section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources are modeled. Therefore, as discussed previously, EPA believes the Minnesota SO2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in our TSD supporting our proposed approval and in our Response to a prior comment. EPA believes infrastructure SIPs are general planning SIPs to ensure that a state has adequate resources and authority to implement a NAAQS. Infrastructure SIP submissions are not intended to act or fulfill the obligations of a detailed attainment and/or maintenance plan for each individual area of the state that is not attaining the NAAQS. While infrastructure SIPs must address modeling authorities in general for section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure SIPs to provide the state's authority for air quality modeling and for submission of modeling data to EPA, not specific air dispersion modeling for large stationary sources of pollutants such as SO2 in a SO2 infrastructure SIP.

    4 The February 6, 2013 “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard,” one of the April 12, 2012 state letters, and the May 2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.

    EPA finds Sierra Club's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to our analysis here of the Minnesota infrastructure SIP, as this SIP for section 110(a) is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to section 172. EPA also finds Sierra Club's comments relating to MPCA's current use of modeling to be likewise irrelevant. In addition, Sierra Club's comments relating to EPA's use of AERMOD or modeling in general in designations pursuant to section 107, are likewise irrelevant as EPA's present approval of Minnesota's infrastructure SIP is unrelated to the section 107 designations process. Nor is our action on this infrastructure SIP related to any new source review (NSR) or PSD permit program issue. As outlined in the August 23, 2010 clarification memo, “Applicability of Appendix W Modeling Guidance for the 1-hour SO2 National Ambient Air Quality Standard” (U.S. EPA, 2010a), AERMOD is the preferred model for single source modeling to address the 1-hour SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, as attainment SIPs, designations, and NSR/PSD actions are outside the scope of a required infrastructure SIP for the 2010 SO2 NAAQS for section 110(a), EPA provides no further response to the commenter's discussion of air dispersion modeling for these applications. If Sierra Club resubmits its air dispersion modeling for the Minnesota EGUs or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling in the appropriate future context when an analysis of whether Minnesota's emissions limits are adequate to show attainment and maintenance of the NAAQS is warranted. The commenter correctly noted that the Third Circuit upheld EPA's Section 126 Order imposing SO2 emissions limitations on an EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. Pursuant to section 126, any state or political subdivision may petition EPA for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D)(i)(I) which relates to significant contributions to nonattainment or maintenance in another state. The Third Circuit upheld EPA's authority under section 126 and found EPA's actions neither arbitrary nor capricious after reviewing EPA's supporting docket which included air dispersion modeling as well as ambient air monitoring data showing violations of the NAAQS. The commenter appears to have cited to this matter to demonstrate again EPA's use of modeling for certain aspects of the CAA. EPA agrees with the commenter regarding the appropriate role air dispersion modeling has for designations, attainment SIPs, and demonstrating significant contributions to interstate transport. However, EPA's approval of Minnesota's infrastructure SIP is based on our determination that Minnesota has the required structural requirements pursuant to section 110(a)(2) in accordance with our explanation of the intent for infrastructure SIPs as discussed in the 2013 Infrastructure SIP Guidance. Therefore, while air dispersion modeling may be appropriate for consideration in certain circumstances, EPA does not find air dispersion modeling demonstrating no exceedances of the NAAQS to be a required element before approval of infrastructure SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA disagrees with the commenter that EPA must require additional emission limitations in the Minnesota SO2 infrastructure SIP informed by air dispersion modeling and demonstrating attainment and maintenance of the 2010 NAAQS. In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n and NRDC v. EPA to support its comments that EPA must consider the Sierra Club's modeling data on the Boswell Plant, Hoot Lake Coal Plant, Sherco Coal Plant, and Taconite Harbor Plant based on administrative law principles regarding consideration of comments provided during a rulemaking process. EPA asserts that it has considered the modeling submitted by the commenter as well as all the submitted comments of Sierra Club. As discussed in detail in the Responses above, however, EPA does not believe the infrastructure SIPs required by section 110(a) are the appropriate place to require emission limits demonstrating future attainment with a NAAQS. Part D of the CAA contains numerous requirements for the NAAQS attainment planning process including requirements for attainment demonstrations in section 172 supported by appropriate modeling. As also discussed previously, section 107 supports EPA's use of modeling in the designations process. In Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009), the DC Circuit upheld EPA's consideration of data or factors for designations other than ambient monitoring. EPA does not believe state infrastructure SIPs must contain emission limitations informed by air dispersion modeling in order to meet the requirements of section 110(a)(2)(A). Thus, EPA has not evaluated the persuasiveness of the commenter's submitted modeling in finding that it is not relevant to the approvability of Minnesota's proposed infrastructure SIP for the 2010 SO2 NAAQS.

    Comment 9: Sierra Club asserts that EPA may not approve the Minnesota proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The commenter cites to CAA section 302(k) which requires emission limits to apply on a continuous basis. The commenter claims EPA has stated that 1-hour averaging times are necessary for the 2010 SO2 NAAQS citing to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding need for 1-hour SO2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates.5 Sierra Club also contends EPA must include monitoring of SO2 emission limits on a continuous basis using a continuous emission monitor system or systems (CEMs) and cites to section 110(a)(2)(F) which requires a SIP to establish a system to monitor emissions from stationary sources and to require submission of periodic emission reports. Sierra Club contends infrastructure SIPs must require such SO2 CEMs to monitor SO2 sources regardless of whether sources have control technology installed to ensure limits are protective of the NAAQS. Thus, Sierra Club contends EPA must require enforceable emission limits, applicable at all times, with 1-hour averaging periods, monitored continuously by large sources of SO2 emissions and must disapprove Minnesota's infrastructure SIP which fails to require emission limits with adequate averaging times.

    5 Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 11-01, 2011 WL 3557194, at * 26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP).

    Response 9: EPA disagrees that EPA must disapprove the proposed Minnesota infrastructure SIP because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times and with required CEMs. These issues are not appropriate for resolution at this stage. As explained in detail in previous Responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to attain and maintain the NAAQS and thus additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.6 Likewise, EPA need not address for the purpose of approving Minnesota's infrastructure SIP whether CEMs or some other appropriate monitoring of SO2 emissions is necessary to demonstrate compliance with emission limits to show attainment of the 2010 NAAQS as EPA believes such SO2 emission limits and an attainment demonstration when applicable are not a prerequisite to our approval of Minnesota's infrastructure SIP.7 Therefore, because EPA finds Minnesota's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issues of appropriate averaging periods and monitoring requirements for such future limitations not relevant at this time for our approval of the infrastructure SIP. Sierra Club has cited to prior EPA discussion on emission limitations required in PSD permits (from an EHB decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA which is not relevant nor applicable to section 110 infrastructure SIPs. In addition, as discussed previously, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning and is likewise not relevant to our analysis of infrastructure SIP requirements.

    6 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not yet evaluated any specific submission of such a limit, and so is not at this time prepared to take final action to implement this concept. If and when a state submits an attainment demonstration that relies upon a limit with such a longer averaging time, EPA will evaluate it then.

    7 EPA believes the appropriate time for application of monitoring requirements to demonstrate continuous compliance by specific sources is when such 1-hour emission limits are set for specific sources whether in permits issued by a state pursuant to the SIP or in attainment SIPs submitted in the part D planning process.

    Comment 10: Sierra Club states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO2 levels exceed the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA document, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide Nation Ambient Air Quality Standard,” which Sierra Club contends discussed how states could avoid future nonattainment designations. The commenter asserts EPA must disapprove the Minnesota infrastructure SIP to ensure large sources of SO2 do not cause exceedances of the 2010 SO2 NAAQS which would avoid nonattainment designations.

    Response 10: EPA appreciates the commenter's concern with assisting Minnesota in avoiding nonattainment designations with the 2010 SO2 NAAQS and with assisting coal-fired EGUs in achieving regulatory certainty as EGUs make informed decisions on how to comply with CAA requirements. However, Congress designed the CAA such that states have the primary responsibility for assuring air quality within their geographic area by submitting SIPs which will specify how the state will achieve and maintain the NAAQS within the state. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and EPA then promulgates the designations after considering the state's submission and other information. EPA promulgated initial designations for the 2010 SO2 NAAQS in August 2013. EPA proposed on May 14, 2014 an additional process for further designations of additional areas in each state for the 2010 SO2 NAAQS. 79 FR 27446. EPA has also entered a settlement to resolve deadline suits regarding the remaining designations that will impose deadlines for three more rounds of designations. Under these schemes, Minnesota would have the initial opportunity to propose additional areas for designations for the 2010 SO2 NAAQS. While EPA appreciates Sierra Club's comments, further designations will occur pursuant to the section 107(d) process, and in accordance with any applicable future court orders addressing the designations deadline suits and, if promulgated, future EPA rules addressing additional monitoring or modeling to be conducted by states. Minnesota may on its own accord decide to impose additional SO2 emission limitations to avoid future designations to nonattainment. However, such considerations are not required of Minnesota to consider at the infrastructure SIP stage of NAAQS implementation, as this action relates to our approval of Minnesota's SO2 infrastructure SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club's comments regarding designations under section 107 are neither relevant nor germane to EPA's approval of Minnesota's SO2 infrastructure SIP. See Commonwealth of Virginia, et al. v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). Thus, EPA does not believe it is appropriate or necessary to condition approval of Minnesota's infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. EPA disagrees that we must disapprove the infrastructure SIP for not including enforceable emissions limitations to prevent future nonattainment designations.

    Comment 11: Sierra Club contends that EPA cannot approve the section 110(a)(2)(A) portion of Minnesota's 2008 ozone infrastructure SIP revision because an infrastructure SIP should include enforceable emission limits to prevent NAAQS violations in areas not designated nonattainment. The commenter alleges that Minnesota is threatened by high concentrations of ozone, and on the edge of exceeding the ozone NAAQS.

    Response 11: We disagree with the commenter that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late in the process or after the SIP was due and submitted changes the status of areas within the state. We believe that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

    The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.

    We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.8 In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state.

    8 While it is true that there may be some monitors within a state with values so high as to make a nonattainment designation of the county with that monitor almost a certainty, the geographic boundaries of the nonattainment area associated with that monitor would not be known until EPA issues final designations.

    For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are or may be future monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal.

    Comment 12: Sierra Club suggests that the state adopt specific controls that they contend are cost-effective for reducing nitrogen oxides (NOX), a precursor to ozone.

    Response 12: Minnesota currently has the ability to control emissions of NOX. NOX emissions are limited by Minn. R. 7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as an administrative order issued as part of Minnesota's Regional Haze SIP. Minnesota relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Minnesota will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. Further, in approving Minnesota's infrastructure SIP revision, EPA is affirming that Minnesota has sufficient authority to take the types of actions required by the CAA in order to bring any potential nonattainment areas back into attainment. The commenter has not provided any information to demonstrate that emissions will be affected by the infrastructure SIP submission.

    Comment 13: The commenter alleges that EPA cannot approve the infrastructure SIP for the 2010 NO2 NAAQS unless Minnesota includes adequately stringent emission limits that address the 1-hour NO2 NAAQS. The commenter points to a news article summarizing research by Clark, Millet, and Marshall showing patterns in environmental justice for NO2 concentrations in Minnesota and elsewhere.

    Response 13: As stated in a previous response, EPA interprets the requirements under 110(a)(2)(A) to include enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean, for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Emission limits providing for attainment of a new standard are triggered by the designation process and have a different schedule in the CAA than the submittal of infrastructure SIPs.

    Minnesota currently has the ability to control emissions of NO2. NOX emissions are limited by Minn. R. 7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as an administrative order issued as part of Minnesota's Regional Haze SIP. Because NO2 is a subcategory of NOX, controls relating to NOX can be expected to limit emissions of NO2. These regulations support compliance with and attainment of the 2010 NO2 NAAQS. While EPA employs multiple mechanisms for strengthening environmental justice communities, EPA believes it is inappropriate to address this issue through section 110(a)(2) of the CAA or the infrastructure SIP submittal process. The commenter does not attempt to demonstrate how environmental justice might be lawfully considered as part of Minnesota's infrastructure SIP under CAA section 110(a)(2).

    Comment 14: The commenter points to a 2013 MPCA report showing PM2.5 monitoring data, and also points out sources of PM2.5 emissions including the Sherco Plant, Taconite Harbor Plant, and Silica mining industry, and alleges that Minnesota is close to exceeding the NAAQS. The commenter concludes that EPA cannot approve the infrastructure SIP for the 2012 PM2.5 NAAQS unless Minnesota includes enforceable emission limitations.

    Response 14: As stated in a previous response, EPA interprets the requirements under 110(a)(2)(A) to include enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean, for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Emission limits providing for attainment of a new standard are triggered by the designation process and have a different schedule in the CAA than the submittal of infrastructure SIPs.

    Minnesota currently has the ability to control emissions of PM2.5. MPCA identified enforceable permits and administrative orders with SO2 emission limits. In previous rulemakings, EPA has approved these permits and orders into Minnesota's SIP (see 59 FR 7218, February 15, 1994; 60 FR 31088, June 13, 1995; 62 FR 39120, July 22, 1997; 65 FR 42861, July 12, 2000; 69 FR 51371, August 19, 2004; 72 FR 51713, September 11, 2007; 74 FR 23632, May 20, 2009; 74 FR 63066, December 2, 2009; 75 FR 11461, March 11, 2010; and 75 FR 78602, December 16, 2010). Additionally, state rules that have been incorporated into Minnesota's SIP (at Minn. R. 7011.0150, 7011.0500 to 7011.0553, 7011.0600 to 7011.0625, 7011.0710 to 7011.0735, 7011.0850 to 7011.0859, 7011.0900 to 7011.0922, 7011.1000 to 7011.1015, 7011.1100 to 7011.1125, 7011.1300 to 7011.1325, and 7011.1400 to 7011.1430) contain PM emission limits. These regulations support compliance with and attainment of the 2012 PM2.5 NAAQS.

    Comment 15: Throughout its letter, Sierra Club alleges that Minnesota's infrastructure SIP must include provisions for monitoring of emissions of the various NAAQS.

    Response 15: As discussed previously, EPA need not address for the purpose of approving Minnesota's infrastructure SIPs whether monitoring of emissions is necessary to demonstrate compliance with emission limits to show attainment of any NAAQS as EPA believes such emission limits and an attainment demonstration when applicable are not a prerequisite to our approval of Minnesota's infrastructure SIP. Therefore, because EPA finds Minnesota's infrastructure SIPs approvable without the additional emission limitations showing attainment of the NAAQS, EPA finds the issues of monitoring requirements not relevant at this time for our approval of the infrastructure SIP.

    Comment 16: Sierra Club alleges that Minnesota's infrastructure SIPs contain no emission limits for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The commenter states that it provided modeling and other evidence showing that any limits currently in place are insufficient, and that Minnesota is taking little to no action to address any NAAQS exceedances. Sierra Club alleges that standards contained within the infrastructure SIPs were created for earlier NAAQS, and must be revised to reflect the new standards.

    Sierra Club asserts that Minnesota's infrastructure SIP must not allow for ambient air incremental increases, variances, exceptions, or exclusions with regard to limits placed on sources of pollutants. The commenter asserts that Minnesota's rules allow exceptions from enforcement, and points to Minn. Stat. 116.07, Minn. R. 7000.7000, and Minn. R. 7007.1850 as examples of methods by which MPCA may grant variances or undermine emission limits.

    Additionally, the commentator alleges that Minnesota excludes major sources of emissions from its major permitting program, allowing these sources to emit pollution under fewer restrictions.

    Response 16: As stated in a previous response, EPA interprets the requirements under 110(a)(2)(A) to include enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean, for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Emission limits providing for attainment of a new standard are triggered by the designation process and have a different schedule in the CAA than the submittal of infrastructure SIPs.

    EPA disagrees with the commenter's claim that Minnesota's infrastructure SIP fails to meet any requirements regarding variances. As an initial matter, Minn. Stat. 116.07 and Minn. R. 7000.7000 are not regulations that have been approved into the SIP. Minn. R. 7007.1850 grants the source the right to prove a circumstance beyond its control, but does not limit Minnesota's enforcement authority. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the CAA including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of state law means that the state does not have adequate authority to carry out the implementation plan.

    Finally, we find that there is nothing in the record to support the commenter's assertion that Minnesota excludes major sources of emissions from the major permitting requirements required under title I of the CAA, which is the focus of this action. This action is governed by section 110(a)(2), which falls under title I of the CAA and governs the implementation, maintenance, and enforcement of the NAAQS. As noted above, Minnesota implements the Federal major source PSD program through delegated authority from EPA. Since Minnesota already administers Federally promulgated PSD regulations through delegation, it applies the Federal promulgated regulations in 40 CFR 52.21—not the regulations cited in the comment, or any exclusions they may contain—in determining the major sources subject to title I permitting requirements. We also note that the regulations cited in the comment apply to part 70 operating permits issued under title V of the CAA and certain state permits (see MAR section 7007.0200 and section 7007.0250, respectively). Thus, any evaluation of these regulations must be done pursuant to CAA section 502 and 40 CFR part 70 and state law, respectively, and are not subject to our review under section 110(a)(2).

    Comment 17: The commenter alleges that the proposed infrastructure SIP does not address sources significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states EPA must therefore disapprove the infrastructure SIP. Sierra Club states that the CAA requires infrastructure SIPs to address cross-state air pollution within three years of the NAAQS promulgation. The commenter references the recent Supreme Court decision, EPA v. EME Homer City Generation, L.P. et al., 134 S. Ct. 1584 (2014), which supports the states' mandatory duty to address cross-state pollution under section 110(a)(2)(D)(i)(I).

    Sierra Club additionally alleges that Minnesota cannot rely on the absence of nonattainment areas within the state, when determining whether Minnesota is contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. The commenter also alleges that Minnesota cannot rely on a Federal implementation plan (FIP) for PSD and an approved NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. Sierra Club additionally alleges that PSD and NSR programs address only new sources, and also apply only in nonattainment areas. The commenter notes that Minnesota has no nonattainment areas for the 2008 ozone, 2010 SO2, 2010 NO2, and 2012 PM2.5 NAAQS.

    Response 17: EPA disagrees with Sierra Club's statement that EPA must disapprove the submitted infrastructure SIPs due to Minnesota's failure to address section 110(a)(2)(D)(i)(I). In EPA's NPR proposing to approve Minnesota's infrastructure SIP for the 2008 ozone, 2010 SO2, 2010 NO2, and 2012 PM2.5 NAAQS, EPA clearly stated that it was not taking any final action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I) which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS. Minnesota did not make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, and thus there is no such submission upon which EPA could take action under section 110(k) of the CAA. EPA cannot act under section 110(k) to disapprove a SIP submission that has not been submitted to EPA. EPA also disagrees with the commenter that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. EPA additionally believes there is no basis for the contention that EPA has triggered its obligation to issue a FIP addressing the good neighbor obligation under section 110(c), as EPA has neither found that Minnesota failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission as to the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS or made such a submission that was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS.

    EPA acknowledges the commenter's concern for the interstate transport of air pollutants and agrees in general with the commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve or conditionally approve individual elements of Minnesota's infrastructure SIP submission for the various NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to each NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Minnesota had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate.

    The commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters our interpretation that we may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Minnesota's June 12, 2014, infrastructure SIP submission for the 2010 SO2 NAAQS.

    Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant to 110(c)(1) to address Minnesota's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Minnesota failed to make the required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the commenter's contention that it must issue a FIP for Minnesota to address 110(a)(2)(D)(i)(I) at this time.

    Sierra Club claims that Minnesota may not rely on the absence of nonattainment areas within the state, a FIP for PSD, or an approved nonattainment NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. In fact, EPA is not taking action on 110(a)(2)(D)(i)(I) at this time for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, and therefore these comments are not relevant to this rulemaking. EPA is indeed addressing the transport provisions of Minnesota's infrastructure SIP for the 2010 NO2 NAAQS, but here EPA is making this determination in part because no state has a nonattainment area for the 2010 NO2 NAAQS, and it is impossible for any state to contribute to nonattainment when no nonattainment areas actually exist. Sierra Club's comments are not relevant for a NAAQS with no nonattainment areas in any state.

    Comment 18: The commenter contends that Minnesota does not have the adequate personnel, funding, and authority, required by section 110(a)(2)(E) of the CAA, to properly implement the SIP, shown by overdue permits and improper reissuing of expired permits. The commenter contends that permits for the Taconite Harbor Plant and Boswell Plant have expired, and this may allow these plants to “exceed the 2010 SO2 NAAQS.”

    Response 18: EPA disagrees that the issue raised by the commenter implies that MPCA does not meet the criteria of section 110(a)(2)(E). Although title V programs are not a component of the SIP, EPA fully approved Minnesota's title V program on December 4, 2001 (66 FR 62967). Minnesota has funding for its program through title V fees, and has the authority to implement the programs though a number of state rules to implement 40 CFR part 70, and dedicated staff for implementation of their title V program.

    Comment 19: Sierra Club alleges that section 110(a)(2)(J) of the CAA requires states to provide for public notification of exceedances of the NAAQS. Sierra Club further asserts that section 110(a)(2)(J) requires states to satisfy section 127 of the CAA, which mandates that each SIP must contain provisions for notifying the public of instances or areas of primary NAAQS exceedances, and additionally advise the public of associated health hazards. Sierra Club further alleges that Minnesota's SIP cites provisions that in fact do not require public notification procedures. Sierra Club notes that Minnesota's infrastructure SIP states that a portion of the MPCA Web site is dedicated to enhancing public awareness of measures that can be taken to prevent exceedances for the NAAQS.

    Response 19: Sierra Club correctly notes that 110(a)(2)(J) of the CAA requires states to satisfy the requirements of section 127 of the CAA. Section 127 requires a state's infrastructure SIP to contain measures allowing the state to notify the public upon the exceedance of a NAAQS, to advise the public of the health hazards, and to enhance public awareness. The CAA, which was last amended in 1990, further states that “[s]uch measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.” Here in the year 2015, Minnesota has a Web site. This Web site contains much more information than, for example, a warning sign on a highway. MPCA's Web site allows Minnesotans to learn about air quality issues, view a current air quality index, review reports to the legislature, and access air quality alerts for ozone. As Sierra Club noted, MPCA submitted a link to this Web site as part of its infrastructure SIP. The Web site does contain sections dedicated to enhancing public awareness of measures that can be taken to prevent exceedances for the NAAQS. EPA believes Minnesota has fully satisfied its public notification requirements under section 110(a)(2)(J) of the CAA.

    Comment 20: Sierra Club asserts that EPA must disapprove Minnesota's infrastructure SIP because it does not address the visibility protection provisions of section 110(a)(2)(J).

    Response 20: The visibility requirements in part C of the CAA that are referenced in section 110(a)(2)(J) are not affected by the establishment or revision of a NAAQS. As a result, there are no “applicable” visibility protection obligations associated with the promulgation of a new or revised NAAQS. Because there are no applicable requirements, states are not required to address section 110(a)(2)(J) in their infrastructure SIP.

    III. What action is EPA taking?

    EPA is taking final action to approve most elements of submissions from Minnesota certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. We are also disapproving some elements of the state's submission as they relate to its PSD program. As described above, Minnesota already administers Federally promulgated PSD regulations through delegation, and therefore no practical effect is associated with this disapproval of those elements.

    The proposed rulemaking associated with this final action was published on June 26, 2015 (75 FR 36743), and EPA received one comment during the comment period, which ended on July 27, 2015. For the reasons discussed in the proposed rulemaking and in the above response to the public comment, EPA is therefore taking final action to approve most elements and disapprove certain elements, as proposed, of Minnesota's submissions. EPA's actions for the state's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) and NAAQS, are contained in the table below.

    Element 2008 Ozone 2010 NO2 2010 SO2 2012 PM2.5 (A)—Emission limits and other control measures A A A A (B)—Ambient air quality monitoring/data system A A A A (C)1—Program for enforcement of control measures A A A A (C)2—PSD D D D D (D)1—I Prong 1: Interstate transport—significant contribution NA A NA NA (D)2—I Prong 2: Interstate transport—interfere with maintenance NA A NA NA (D)3—II Prong 3: Interstate transport—prevention of significant deterioration. D D D D (D)4—II Prong 4: Interstate transport—protect visibility NA NA NA NA (D)5—Interstate and international pollution abatement D D D D (E)1—Adequate resources A A A A (E)2—State board requirements NA NA NA NA (F)—Stationary source monitoring system A A A A (G)—Emergency power A A A A (H)—Future SIP revisions. A A A A (I)—Nonattainment planning requirements of part D * * * * (J)1—Consultation with government officials A A A A (J)2—Public notification A A A A (J)3—PSD D D D D (J)4—Visibility protection * * * * (K)—Air quality modeling/data A A A A (L)—Permitting fees A A A A (M)—Consultation and participation by affected local entities A A A A

    In the above table, the key is as follows:

    A Approve. D Disapprove. NA No Action/Separate Rulemaking. * Not germane to infrastructure SIPs. VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely 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 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, 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 23, 2015. Susan Hedman, Regional Administrator, Region 5.

    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.

    2. In § 52.1220, the table in paragraph (e) is amended by adding entries at the end of the table for “Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS,” “Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS,” “Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS,” and “Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS” to read as follows:
    § 52.1220 Identification of plan.

    (e) * * *

    EPA-Approved Minnesota Nonregulatory Provisions Name of nonregulatory
  • SIP provision
  • Applicable
  • geographic or
  • nonattainment area
  • State
  • submittal
  • date/effective
  • date
  • EPA approved
  • date
  • Comments
    *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS Statewide 6/12/2014 (submittal date) 10/20/2015, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS Statewide 6/12/2014 (submittal date) 10/20/2015, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on the visibility portion of (D)(i)(II) or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS Statewide 6/12/2014 (submittal date) 10/20/2015, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS Statewide 6/12/2014 (submittal date) 10/20/2015, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose.
    [FR Doc. 2015-25969 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-RO5-OAR-2014-0657; FRL-9935-63-Region 5] Air Plan Approval; Michigan; 2006 PM2.5 and 2008 Lead NAAQS State Board Infrastructure SIP Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) submissions from Michigan regarding state board requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM2.5) and 2008 lead National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    This direct final rule will be effective December 21, 2015, unless EPA receives adverse comments by November 19, 2015. If adverse comments are received, EPA 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-R05-OAR-2014-0657 by one of the following methods:

    1. www.regulations.gov: Follow the online instructions for submitting comments.

    2. Email: [email protected].

    3. Fax: (312) 408-2279.

    4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID. EPA-R05-OAR-2014-0657. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Sarah Arra, Environmental Scientist, at (312) 886-9401 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What is the background of these SIP submissions? II. What is EPA's review of these SIP submissions? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is the background of these SIP submissions?

    This rulemaking addresses submissions from the Michigan Department of Environmental Quality (MDEQ) for the 2006 PM2.5 and 2008 lead NAAQS. MDEQ submitted its infrastructure SIPs on the following dates: 2006 PM2.5—August 15, 2011, supplemented on July 9, 2012; 2008 lead—April 3, 2012, supplemented August 9, 2013. On July 10, 2014, MDEQ requested that new rules related to state board requirements which it had submitted to be incorporated into the SIP also apply to its 2006 PM2.5 and 2008 lead NAAQS infrastructure SIPs.

    The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    This specific rulemaking is taking action only on the state board element of the Michigan submittal. The majority of the other infrastructure elements for the 2006 PM2.5 NAAQS were addressed on October 29, 2012 (77 FR 65478). The other infrastructure elements for the 2008 lead NAAQS were addressed on July 16, 2014 (79 FR 41439). The infrastructure element for state board requirements is found in CAA 110(a)(2)(E). For further discussion on the background of infrastructure submittals, see 77 FR 45992.

    II. What is EPA's review of these SIP submissions?

    On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Memo). As noted in the 2013 Memo, pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MDEQ provided public comment opportunities on both submittals on which EPA is acting in this direct final rule. MDEQ provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 110(a)(2) for the 2006 PM2.5 and 2008 lead NAAQS, as applicable. The following review only evaluates the state's submissions for CAA section 110(a)(2)(E)(ii) requirements.

    Section 110(a)(2)(E)(ii) requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. The 2013 Memo specifies that the provisions that implement CAA section 128 must be contained within the SIP. “EPA would not approve an infrastructure SIP submission that only provides a narrative description of existing air agency laws, rules, and regulations that are not approved into the SIP to address CAA section 128 requirements.” 2013 Memo at 42.

    On July 10, 2014, MDEQ submitted Civil Service Rule 2-8.3(a)(1) for incorporation into the SIP, pursuant to section 128 of the CAA. EPA approved this rule as satisfying CAA section 128 requirements on August 31, 2015 (see 80 FR 52399). On July 10, 2014, MDEQ requested that these rules satisfy not only the applicable requirements of section 128 of the CAA, but that they satisfy any applicable requirements of section 110(a)(2)(E) for the 2006 PM2.5 and 2008 lead NAAQS. Therefore, EPA finds that MDEQ has satisfied the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2006 PM2.5 and 2008 lead NAAQS.

    III. What action is EPA taking?

    EPA is approving the state board related infrastructure requirement for Michigan's 2006 PM2.5 and 2008 lead NAAQS submittals as satisfying the infrastructure SIP requirements in CAA sections 110(a)(2)(E)(ii).

    We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 21, 2015 without further notice unless we receive relevant adverse written comments by November 19, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective December 21, 2015.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely 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).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 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 this 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. 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, Incorporation by reference, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements.

    Dated: October 5, 2015. Susan Hedman, Regional Administrator, Region 5.

    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.

    2. In § 52.1170, the table in paragraph (e) is amended by revising the entries for “Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS” and “Section 110(a)(2) Infrastructure Requirements for the 2008 lead (Pb) NAAQS” to read as follows:
    § 52.1170 Identification of plan.

    (e) * * *

    EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions Name of nonregulatory SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State submittal date EPA approval date Comments
    *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS Statewide 8/15/2011, 7/9/2012,
  • 7/10/2014
  • 10/20/2015, [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on the visibility protection requirements of (D)(i)(II). We will address this requirements in a separate action.
    *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 2008 lead (Pb) NAAQS Statewide 4/3/2012, 8/9/2013,
  • 7/10/2014
  • 10/20/2015, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).
    [FR Doc. 2015-26312 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
    CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Parts 1206, 1210, 1211, 1216, 1217, 1218, 1220, 1222, 1226, and 2556 RIN 3045-AA36 Volunteers in Service to America AGENCY:

    Corporation for National and Community Service.

    ACTION:

    Final rule.

    SUMMARY:

    The Corporation for National and Community Service (CNCS) publishes new regulations under the Domestic Volunteer Service Act of 1973, as amended, and the National and Community Service Act of 1990, as amended, for the Volunteers in Service to America (VISTA) program, including certain changes to update existing regulations.

    DATES:

    This rule is effective January 19, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Calvin Dawson, AmeriCorps VISTA, at the Corporation for National and Community Service, 1201 New York Avenue NW., Washington, DC 20525, phone 202-606-6897. The TDD/TTY number is 800-833-3722.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Economic Opportunity Act of 1964 created the Volunteers in Service to America (VISTA) program. The VISTA program, sometimes referred to as the domestic Peace Corps, has operated since the first VISTA volunteers (VISTAs or VISTA members) were placed in service in December 1964.

    In 1971, the VISTA program was transferred from the Office of Economic Opportunity to the former Federal agency, ACTION (the Federal Domestic Volunteer Agency). In 1973, Congress enacted the Domestic Volunteer Service Act of 1973 (DVSA), the VISTA program's enabling legislation. The VISTA program continues to retain its purpose, as stated in the DVSA, “to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems in the United States by encouraging and enabling individuals from all walks of life, all geographical areas, and all age groups, including low-income individuals, elderly and retired Americans, to perform meaningful and constructive volunteer service in agencies, institutions, and situations where the application of human talent and dedication may assist in the solution of poverty and poverty-related problems and secure and exploit opportunities for self-advancement by individuals afflicted with such problems.”

    In 1994, the Corporation for National and Community Service (CNCS) was established pursuant to the National and Community Service Trust Act of 1993; at this time, the operations of all service programs previously administered by ACTION, including the VISTA program, began to be administered by CNCS. The VISTA program also became known as the AmeriCorps VISTA program, one of three AmeriCorps programs now administered by CNCS. The other two programs were, and continue to be: (1) The AmeriCorps State and National program; and (2) the AmeriCorps National Civilian Community Corps (NCCC). Since 1994, the VISTA program continues to be primarily operated and administered under the DVSA. The other two AmeriCorps programs are operated under the National and Community Service Act of 1990 (NCSA).

    In 2009, Congress enacted the Edward M. Kennedy Serve America Act of 2009 (Serve America Act), which contained certain amendments to both the DVSA and the NCSA. With regard to the VISTA program, the Serve America Act amendments largely related to the Segal AmeriCorps Education Award, a type of end-of-service award for which a VISTA member may be eligible upon successful completion of a term of VISTA service.

    II. Scope of Final Rule

    This rule covers core aspects of the VISTA program: (a) Entities that are sponsors for VISTA projects; and (b) individuals who are applicants, candidates, and VISTAs (including VISTA leaders and VISTA summer associates), serving at project sites. This rule has four purposes.

    First, it conforms the existing regulations to the fact that CNCS administers the VISTA program. References in the existing regulations to the former Federal agency, ACTION, and the administrative structure of ACTION are changed to reflect CNCS and its administrative structure.

    Second, this rule codifies the VISTA rules in the same location as the rules for CNCS's other programs. The existing VISTA regulations are codified at 45 CFR parts 1206, 1210, 1211, 1216-1220, 1222, and 1226. This rule places the VISTA regulations within the regulations for CNCS and the other CNCS programs at 45 CFR parts 2505-2556.

    On a related note, existing program regulations at 45 CFR parts 1206, 1216, 1220, and 1226, currently apply both to the VISTA program, and to CNCS's National Senior Service Corps programs. This rule places existing program regulations, as they apply to the VISTA program, at 45 CFR parts 2505-2556. Existing program regulations as they apply to the National Senior Service Corps programs will remain, at this time, at 45 CFR parts 1206, 1216, 1220, and 1226. To accommodate the relocation of the existing program regulations as applied to the VISTA program, certain technical changes to the existing program regulations, as applied to the National Senior Service Corps programs, are warranted. These technical changes are not substantive, but are necessary to address the removal of references to the VISTA program and to reflect CNCS and its current administrative structure.

    Third, this rule addresses regulations on the VISTA program's elements. The existing regulations cover a limited range of topics. This rule covers a wide range of topics, and updates the topics covered under existing regulations, including: VISTA application and termination processes, volunteer grievance procedures, competitive service eligibility, payment of volunteer legal expenses, nondisplacement of workers, VISTA leaders and summer associates, restrictions for VISTAs on certain political activities under the Hatch Act and other federal laws, and participation of program beneficiaries. Subpart A gives general program information: Purpose, basic program design, definitions used in the rule, and waiver. Subpart B sets out requirements for a VISTA sponsor, and for a sponsor to support a VISTA. Subpart C pertains to being a VISTA, and the requirements for applying to become a VISTA. Subpart D provides the service terms, protections, and benefits that apply to a VISTA. Subpart E addresses termination for cause procedures. Subparts F and G, concern, respectively, VISTA projects with summer associates, and VISTA projects with VISTA leaders. Subpart H gives restrictions and prohibitions on certain political activities for all VISTAs, sponsors, and project sites.

    Fourth, this rule updates the provisions of the existing regulations. These changes are described here:

    As it applies to the VISTA program, 45 CFR part 1206, which deals with project suspension and termination, is moved to 45 CFR part 2556, subpart B with most substantive provisions remaining unchanged. Under this final rule, the provisions for suspension remain unchanged, except that the provisions for summary suspension are eliminated and the provisions for suspension on notice are retained. This has the effect of giving notice to sponsors for all suspensions. Under the final rule the provisions for termination remain unchanged, except that a second CNCS review has been eliminated. Experience has shown that a lengthy termination review process is not beneficial to VISTAs at the project in question, unduly consumes the sponsor's staff time and other resources, creates uncertainty for project beneficiaries, and exhausts VISTA resources that could be put to use for the benefit of project beneficiaries.

    The regulations at 45 CFR part 1210, which deal chiefly with early termination of a VISTA, are moved to 45 CFR part 2556, subpart E and changed to improve the cost-effectiveness of the provisions and increase efficiency of VISTA program functions. The new provisions for early termination remain substantively the same in many respects. However, the early termination for cause process is modified. While the process retains more than sufficient due process in the form of written notification and appeals at two levels, the inclusion of a hearing examiner in that process is removed. Experience has shown that a multi-layered termination process is protracted, unduly burdensome, and incompatible with a service term that can last no more than a year's time. Such a process creates potential harm to the operations of the project and its beneficiaries where the VISTA had been assigned, prolongs uncertainty for the VISTA subject to the process, and inordinately consumes VISTA program resources that could be put to use for the benefit of project beneficiaries.

    Regulations in 45 CFR part 1211 on grievance procedures for VISTAs are moved to 45 CFR 2556.345-2556.365 and updated to reflect the use of electronic communication technology and the speed at which it can operate. At §§ 2556.345 through 2556.365, the rule clarifies when a VISTA may present a grievance, what matters are considered grievances, and specific steps for bringing a grievance and appealing a response, while eliminating the inclusion of a grievance examiner in the process. Longstanding experience has shown that CNCS has used its administrative review and oversight to afford complaining parties more than sufficient due process, and has effectively remedied inappropriate conditions leading to grievances, without need of grievance examiner services. When grievance examiner services have been invoked, the time, resources and expense incurred by the VISTA program have substantially outweighed the value provided to the parties involved.

    Regulations at 45 CFR part 1216 on non-displacement of employed workers and non-impairment of contracts for service are moved to 45 CFR 2556.150(b) through (e), and the substantive provisions remain unchanged.

    Regulations at 45 CFR part 1217 on leaders are moved to 45 CFR part 2556, subpart G, and clarify primary aspects of the leader position in a project.

    Regulations at 45 CFR part 1219 on non-competitive eligibility for VISTAs are moved to 45 CFR 2556.340, and their substantive provisions remain unchanged.

    Regulations at 45 CFR part 1220 on payment of legal expenses resulting from service activities are moved to 45 CFR 2556.325 through 2556.335, and their substantive provisions remain unchanged.

    Regulations at 45 CFR part 1222 on participation of project beneficiaries are moved to 45 CFR 2556.120, and their substantive provisions remain unchanged.

    Regulations at 45 CFR part 1226 on prohibitions and restrictions on certain political activities are moved to 45 CFR part 2556, subpart H and are revised to complement the current limitations and permitted political activities under the Hatch Act, 5 U.S.C. chapter 73, subchapter III. As provided in the DVSA, VISTAs are subject to the requirements of the Hatch Act because they are considered federal employees for purposes of the Hatch Act, 42 U.S.C. 5055(b)(1).

    III. Comments and Responses

    On Tuesday, May 5, 2015, CNCS published a notice of proposed rulemaking. 80 FR 25637. We received fewer than 25 comments on the rule, all of which are addressed below.

    We received comments from individuals currently serving as VISTAs, current and former VISTA leaders, staff of VISTA sponsors, a state non-profit association and State Commissions on National and Community Service. We appreciate the thoughtful input provided by these individuals and organizations.

    Comment: We received comments about our proposal to expand the eligibility to be a VISTA leader to include those who have had prior Peace Corps experience, or have had prior national service experience in AmeriCorps, regardless of whether the prior experience was through the AmeriCorps VISTA program or another AmeriCorps program.

    Response: We appreciate the support commenters expressed for the expansion of eligibility criteria to be a VISTA leader. While two commenters thought that the expansion did not adequately recognize the value of the VISTA experience, the majority of commenters articulated support for the expansion that mirrored our reasons for proposing it: Better recruitment opportunities for programs; a wider pool of excellent prospective candidates; and recognition and leveraging of the leadership skills earned through other national service programs. Moreover, in our view, expanding the scope of individuals who may be eligible does not in any way diminish the value placed on the VISTA experience in particular.

    Comment: We received several comments on VISTA health care coverage and requests to change the health care coverage options offered to VISTAs serving in the program.

    Response: The health care options available to AmeriCorps VISTA members are outlined at http://www.vistacampus.gov/resources/vista-healthcare-options. The proposed rule did not propose any changes to VISTA health care coverage and doing so is beyond the scope of this rulemaking.

    Comment: We received two comments regarding the Segal AmeriCorps Education Award (Education Award) that suggested changes to the statutory requirements placed on VISTAs regarding their use of the Education Award, namely transferability and use of the Education Award at VA-eligible institutions.

    Response: We appreciate the commenters identifying how the Education Award would be more useful to VISTAs. In accordance with current legislation, individuals who successfully serve in the AmeriCorps State and National program may transfer their Education Awards to certain third party individuals as long as those individuals meet certain statutory conditions. However, VISTAs who receive Education Awards are unable to transfer them to anyone else. Until the legislation changes, we are bound by the statutory requirements on the use of the Education Award by VISTAs. Similarly, until the legislation changes, we are restricted from expanding the use of the Education Award by non-veterans to study at VA-eligible educational institutions.

    Accordingly, we have made only technical edits to the proposed rule for clarity in the use of the terms “sponsor,” “project,” and “subrecipient.” Additionally, we clarified the applicability of sections 2556.125 and 2556.130.

    IV. Effective Date

    This rule is effective January 19, 2016.

    V. Regulatory Procedures Executive Order 12866

    CNCS has determined that the rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

    Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), CNCS certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, CNCS has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) for major rules that are expected to have such results.

    Unfunded Mandates

    For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

    Paperwork Reduction Act

    This rule addresses the requirement that entities that wish to apply to be VISTA sponsors complete an application to be a VISTA sponsor that manages at least one VISTA project. Consistent with this requirement is a document: The VISTA program's Project Application (http://www.nationalservice.gov/programs/americorps/americorps-vista/sponsor-vista-project). Additionally this rule addresses the requirement that individuals who wish to apply to serve as VISTAs in the federal VISTA program complete an application to serve as a VISTA. This document is called an AmeriCorps Member Application and can be found online at http://www.nationalservice.gov/programs/americorps/americorps-vista.

    These requirements constitute two sets of information under the Paperwork Reduction Act (PRA), 44 U.S.C. 507 et seq. OMB, in accordance with the Paperwork Reduction Act, has previously approved these information collections for use. The OMB Control Number for the two collections of the Project Application and AmeriCorps Application are 3045-0038 and 3045-0054, respectively.

    Under the PRA, an agency may not conduct or sponsor a collection of information unless the collections of information displays valid control numbers. This rule's collections of information are contained in 45 CFR 2556.120 and 2556.205 for the Project Application and AmeriCorps Application, respectively.

    This information is necessary to ensure that only eligible and qualified entities serve as VISTA sponsors. This information is also necessary to ensure that only eligible and suitable individuals are approved by the VISTA program to serve as VISTAs in the VISTA program.

    The likely respondents to these collections of information are entities interested in or seeking to become VISTA sponsors, current VISTA sponsors, and current and prospective VISTAs.

    Executive Order 13132, Federalism

    Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has Federalism implications if the rule imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The rule does not have any Federalism implications, as described above.

    List of Subjects 45 CFR Parts 1206, 1210, 1211, 1216 Through 1218, 1220, and 1222

    Volunteers.

    45 CFR Part 1226

    Elections, Lobbying, Volunteers.

    45 CFR Part 2556

    VISTA program, Volunteers.

    For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:

    PART 1206—GRANTS AND CONTRACTS—SUSPENSION AND TERMINATION AND DENIAL OF APPLICATION FOR REFUNDING 1. The authority citation for part 1206 continues to read as follows: Authority:

    42 U.S.C. 5052.

    2. In § 1206.1-1, revise paragraph (a) to read as follows:
    § 1206.1-1 Purpose and scope.

    (a) This subpart establishes rules and review procedures for the suspension and termination of assistance of National Senior Service Corps grants of assistance provided by the Corporation for National and Community Service pursuant to sections of title II of the Domestic Volunteer Service Act of 1973, Public Law 93-113, 87 Stat. 413 (hereinafter the DVSA) because a recipient failed to materially comply with the terms and conditions of any grant or contract providing assistance under these sections of the DVSA, including applicable laws, regulations, issued program guidelines, instructions, grant conditions or approved work programs.

    3. Revise § 1206.1-2 to read as follows:
    § 1206.1-2 Application of this part.

    This subpart applies to programs authorized under title II of the DVSA.

    4. In § 1206.1-3, revise paragraphs (c) through (f) to read as follows:
    § 1206.1-3 Definitions.

    (c) The term responsible Corporation official means the CEO, Chief Financial Officer, the Director of the National Senior Service Corps programs, the appropriate Service Center Director and any Corporation for National and Community Service (CNCS) Headquarters or State office official who is authorized to make the grant or assistance in question. In addition to the foregoing officials, in the case of the suspension proceedings described in § 1206.1-4, the term “responsible Corporation official” shall also include a designee of a CNCS official who is authorized to make the grant of assistance in question.

    (d) The term assistance means assistance under title II of the DVSA in the form of grants or contracts involving Federal funds for the administration for which the Director of the National Senior Service Corps programs has responsibility.

    (e) The term recipient means a public or private agency, institution or organization or a State or other political jurisdiction which has received assistance under title II of the DVSA. The term “recipient” does not include individuals who ultimately receive benefits under any DVSA program of assistance or National Senior Service Corps volunteers participating in any program.

    (f) The term agency means a public or private agency, institution, or organization or a State or other political jurisdiction with which the recipient has entered into an arrangement, contract or agreement to assist in its carrying out the development, conduct and administration of part of a project or program assisted under title II of the DVSA.

    5. Revise § 1206.2-1 to read as follows:
    § 1206.2-1 Applicability of this subpart.

    This subpart applies to grantees and contractors receiving financial assistance under title II of the DVSA. The procedures in the subpart do not apply to review of applications for sponsors who receive VISTA members under the DVSA.

    6. Revise § 1206.2-3 to read as follows:
    § 1206.2-3 Definitions.

    As used in this subpart, “Corporation”, “CEO”, and “recipient” are defined in accordance with § 1206.1-3.

    Financial assistance and assistance include the services of National Senior Service Corps volunteers supported in whole or in part with CNCS funds under the DVSA.

    Program account includes assistance provided by CNCS to support a particular program activity; for example, Foster Grandparent Program, Senior Companion Program and Retired Senior Volunteer Program.

    Refunding includes renewal of an application for the assignment of National Senior Service Corps volunteers.

    7. In § 1206.2-4, revise paragraph (g) to read as follows:
    § 1206.2-4 Procedures.

    (g) If the recipient's budget period expires prior to the final decision by the deciding official, the recipient's authority to continue program operations shall be extended until such decision is made and communicated to the recipient. If a National Senior Service Corps volunteer's term of service expires after receipt by a sponsor of a tentative decision not to refund a project, the period of service of the volunteer may be similarly extended. No volunteers may be reenrolled for a period of service while a tentative decision not to refund is pending. If program operations are so extended, CNCS and the recipient shall provide, subject to the availability of funds, operating funds at the same levels as in the previous budget period to continue program operations.

    PART 1210—[REMOVED AND RESERVED] 8. Remove and reserve part 1210. PART 1211—[REMOVED AND RESERVED] 9. Remove and reserve part 1211. PART 1216—NONDISPLACEMENT OF EMPLOYED WORKERS AND NONIMPAIRMENT OF CONTRACTS FOR SERVICE 10. The authority citation for part 1216 is revised to read as follows: Authority:

    42 U.S.C. 5044(a).

    11. Revise § 1216.1-1 to read as follows:
    § 1216.1-1 Purpose.

    This part establishes rules to assure that the services of volunteers in the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP), are limited to activities which would not otherwise be performed by employed workers and which will not supplant the hiring of, or result in the displacement of employed workers or impair existing contracts for service. This part implements section 404(a) of the Domestic Volunteer Service Act of 1973, Public Law 93-113 (the “Act”).

    12. In § 1216.1-2, revise paragraph (a) to read as follows:
    § 1216.1-2 Applicability of this part.

    (a) All volunteers in either the Foster Grandparent Program, the Senior Companion Program, or The Retired and Senior Volunteer Program (RSVP), who are assigned, referred or serving pursuant to grants, contracts, or agreements made pursuant to the Act.

    PART 1217—[REMOVED AND RESERVED] 13. Remove and reserve part 1217. PART 1218—[REMOVED AND RESERVED] 14. Remove and reserve part 1218. PART 1219—[REMOVED AND RESERVED] 15. Remove and reserve part 1219. PART 1220—PAYMENT OF VOLUNTEER LEGAL EXPENSES 16. The authority citation for part 1220 is revised to read as follows: Authority:

    42 U.S.C. 5059.

    17. Revise § 1220.1-1 to read as follows:
    § 1220.1-1 Purpose.

    This part implements section 419 of the Domestic Volunteer Service Act of 1973, Public Law 93-113 (the “Act”). This part provides rules to ensure that the Corporation for National and Community Service, which administers the three federal programs, the Foster Grandparent Program (FGP), the Senior Companion Program (SCP), and The Retired and Senior Volunteer Program (RSVP), pays the expenses incurred in judicial and administrative proceedings for the defense of those volunteers serving in those programs. Payment of such expenses by CNCS for those volunteers include payment of counsel fees, court costs, bail or other expenses incidental to the volunteer's defense.

    18. In § 1220.2-1, revise paragraphs (a)(1) and (c) to read as follows:
    § 1220.2-1 Full-time volunteers.

    (a)(1) The Corporation for National and Community Service will pay all reasonable expenses for defense of full-time volunteers up to and including the arraignment of Federal, state, and local criminal proceedings, except in cases where it is clear that the charged offense results from conduct which is not related to his service as a volunteer.

    (c) Notwithstanding the foregoing, there may be situations in which the criminal proceeding results from a situation which could give rise to a civil claim under the Federal Tort Claims Act. In such situations, the Justice Department may agree to defend the volunteer. In those cases, unless there is a conflict between the volunteer's interest and that of the government, the Corporation for National and Community Service will not pay for additional private representation for the volunteer.

    19. In § 1220.2-2, revise paragraph (a) introductory text, (a)(2), and (b) to read as follows:
    § 1220.2-2 Part-time volunteers.

    (a) With respect to a part-time volunteer, the Corporation for National and Community Service will reimburse a sponsor for the reasonable expense it incurs for the defense of the volunteer in Federal, state and local criminal proceedings, including arraignment, only under the following circumstances:

    (2) The volunteer receives, or is eligible to receive, compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses, under a Corporation for National and Community Service grant project; and

    (b) In certain circumstances volunteers who are ineligible for reimbursement of legal expenses by the Corporation for National and Community Service may be eligible for representation under the Criminal Justice Act (18 U.S.C. 3006A).

    20. In § 1220.2-3, revise paragraphs (a), (b), and (d) to read as follows:
    § 1220.2-3 Procedure.

    (a) Immediately upon the arrest of any volunteer under circumstances in which the payment or bail to prevent incarceration or other serious consequences to the volunteer or the retention of an attorney prior to arraignment is necessary and is covered under § 1220.2-1 or § 1220.2-2, sponsors shall immediately notify the appropriate Corporation for National and Community Service state office or if the state office cannot be reached, the appropriate Area Manager.

    (b) Immediately after notification of the appropriate state office, and with the approval thereof, the sponsor shall advance up to $500 for the payment of bail or such other legal expenses as are necessary prior to arraignment to prevent the volunteer from being incarcerated. In the event it is subsequently determined that the Corporation for National and Community Service or a sponsor is not responsible under this policy for the volunteer's defense, any such advance may be recovered directly from the volunteer or from allowances, stipends, or out-of-pocket expenses which are payable or become payable to the volunteer. In the case of a grassroots sponsor of full-time volunteers that is not able to provide the $500, the Corporation for National and Community Service state office or Area Manager shall immediately make such sum available to the sponsor.

    (d) The General Counsel shall, upon notification by the state office or Area Manager, determine the extent to which the Corporation for National and Community Service will provide funds for the volunteer's defense or reimburse a sponsor for funds it spends on the volunteer's behalf. Included in this responsibility shall be the negotiation of fees and approval of other costs and expenses. State offices and Area Managers are not authorized to commit the Corporation for National and Community Service to the payment of volunteers' legal expenses or to reimburse a sponsor except as provided in this section, without the express consent of the General Counsel. Additionally, the General Counsel shall, in cases arising directly out of the performance of authorized project activities, ascertain whether the services of the United States Attorney can be made available to the volunteer.

    21. In § 1220.3-1, revise the introductory text and paragraph (a) to read as follows:
    § 1220.3-1 Full-time volunteers.

    The Corporation for National and Community Service will pay reasonable expenses incurred in the defense of full-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:

    (a) The complaint or charge against the volunteer is directly related to his volunteer service and not to his personal activities or obligations.

    22. Revise § 1220.3-2 as follows:
    § 1220.3-2 Part-time volunteers.

    The Corporation for National and Community Service will reimburse sponsors for the reasonable expenses incidental to the defense of part-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:

    (a) The proceeding arises directly out of the volunteer's performance of activities pursuant to the Act;

    (b) The volunteer receives or is eligible to receive compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses under the Corporation for National and Community Service grant; and

    (c) The conditions specified in § 1220.3-1(b) and (c) are met.

    23. Revise § 1220.3-3 as follows:
    § 1220.3-3 Procedure.

    Immediately upon the receipt by a volunteer of any court papers or administrative orders making a party to any proceeding covered under § 1220.3-1 or § 1220.3-2, the volunteer shall immediately notify his sponsor who in turn shall notify the appropriate Corporation for National and Community Service state office. The procedures referred to in § 1220.2-3(c) through (e) shall thereafter be followed as appropriate.

    PART 1222—[REMOVED AND RESERVED] 24. Remove and reserve part 1222. PART 1226—PROHIBITIONS ON ELECTORAL AND LOBBYING ACTIVITIES 25. The authority citation for part 1226 is revised to read as follows: Authority:

    42 U.S.C. 5043.

    26. Revise § 1226.1 to read as follows:
    § 1226.1 Purpose.

    This part implements sections 403(a) and (b) of the Domestic Volunteer Service Act of 1973, Public Law 93-113, as amended, hereinafter referred to as the Act, pertaining to the prohibited use of Federal funds or involvement by certain Corporation for National and Community Service programs and volunteers in electoral and lobbying activities. This part implements those provisions of the Act, as they apply to agency programs and volunteers authorized under title II of the Act.

    27. Revise § 1226.2 to read as follows:
    § 1226.2 Scope.

    This part applies to all volunteers serving in a program authorized by title II of the Act, including the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP). This part also applies to employees or sponsoring organizations, whose salaries, or other compensation, are paid, in whole or in part, with agency funds.

    28. In § 1226.7, revise the introductory text and paragraph (a) to read as follows:
    § 1226.7 Scope.

    The provisions in this subpart are applicable to full time volunteers as described in § 1226.3(c), and to such part-time volunteers as may be otherwise specified herein. Full time volunteers are deemed to be acting in their capacity as volunteers:

    (a) When they are actually engaged in their volunteer assignments; or

    §§ 1226.10 and 1226.11 [Removed]
    29. Remove §§ 1226.10 and 1226.11.
    §§ 1226.12 and 1226.13 [Redesignated as §§ 1226.10 and 1226.11]
    30. Redesignate §§ 1226.12 and 1226.13 as §§ 1226.10 and 1226.11, respectively, and assign them to subpart D.
    31. Revise newly redesignated § 1226.10 to read as follows:
    § 1226.10 Sponsor employees.

    Sponsor employees whose salaries or other compensation are paid, in whole or in part, with agency funds are subject to the restrictions described in § 1226.8 and the exceptions in § 1226.9:

    (a) Whenever they are engaged in an activity which is supported by Corporation for National and Community Service funds; or

    (b) Whenever they identify themselves as acting in their capacity as an official of a project which receives Corporation for National and Community Service funds, or could reasonably be perceived by others as acting in such capacity.

    32. Add part 2556 to read as follows: PART 2556—VOLUNTEERS IN SERVICE TO AMERICA Subpart A—General Information Sec. 2556.1 What is the purpose of the VISTA program? 2556.3 Who should read this part? 2556.5 What definitions apply in this part? 2556.7 Are waivers of the regulations in this part allowed? Subpart B—VISTA Sponsors 2556.100 Which entities are eligible to apply to become VISTA sponsors? 2556.105 Which entities are prohibited from being VISTA sponsors? 2556.110 What VISTA assistance is available to a sponsor? 2556.115 Is a VISTA sponsor required to provide a cash or in-kind match? 2556.120 How does a VISTA sponsor ensure the participation of people in the communities to be served? 2556.125 May CNCS deny or reduce VISTA assistance to an existing VISTA project? 2556.130 What is the procedure for denial or reduction of VISTA assistance to an existing VISTA project? 2556.135 What is suspension and when may CNCS suspend a VISTA project? 2556.140 What is termination and when may CNCS terminate a VISTA project? 2556.145 May CNCS pursue other remedies against a VISTA project for a sponsor's material failure to comply with any other requirement not set forth in this subpart? 2556.150 What activities are VISTA members not permitted to perform as part of service? 2556.155 May a sponsor manage a project through a subrecipient? 2556.160 What are the sponsor's requirements for cost share projects? 2556.165 What Fair Labor Standards apply to VISTA sponsors and subrecipients? 2556.170 What nondiscrimination requirements apply to sponsors and subrecipients? 2556.175 What limitations are VISTA sponsors subject to regarding religious activities? Subpart C—VISTA Members 2556.200 Who may apply to serve as a VISTA? 2556.205 What commitments and agreements must an individual make to serve in the VISTA program? 2556.210 Who reviews and approves an application for VISTA service? Subpart D—Terms, Protections, and Benefits of VISTA Members 2556.300 Is a VISTA considered a Federal employee and is a VISTA considered an employee of the sponsor? 2556.305 What is the duration and scope of service for a VISTA? 2556.310 What are the lines of supervision or oversight of a VISTA, a VISTA sponsor, and CNCS during a VISTA's term of service? 2556.315 What are terms and conditions for official travel for a VISTA? 2556.320 What benefits may a VISTA receive during VISTA service? 2556.325 May a VISTA be provided coverage for legal defense expenses related to VISTA service? 2556.330 When may a VISTA be provided coverage for legal defense expenses related to criminal proceedings? 2556.335 When may a VISTA be provided coverage for legal defense expenses related to civil or administrative proceedings? 2556. 340 What is non-competitive eligibility and who is eligible for it? 2556.345 Who may present a grievance? 2556.350 What matters are considered grievances? 2556.355 May a VISTA have access to records as part of the VISTA grievance procedure? 2556.360 How may a VISTA bring a grievance? 2556.365 May a VISTA appeal a grievance? Subpart E—Termination for Cause Procedures 2556.400 What is termination for cause and what are the criteria for termination for cause? 2556.405 Who has sole authority to remove a VISTA from a VISTA project and who has sole authority to terminate a VISTA from a VISTA project or the VISTA program? 2556.410 May a sponsor request that a VISTA be removed from its project? 2556.415 May CNCS remove a VISTA from a project without the sponsor's request for removal? 2556.420 What are termination for cause proceedings? 2556.425 May a VISTA appeal his or her termination for cause? 2556.430 Is a VISTA who is terminated early from the VISTA program for other than cause entitled to appeal under these procedures? Subpart F—Summer Associates 2556.500 How is a position for a summer associate established in a project? 2556.505 How do summer associates differ from other VISTAs? Subpart G—VISTA Leaders 2556.600 How is a position for a leader established in a project, or in multiple projects within a contiguous geographic region? 2556.605 Who is eligible to apply to serve as a leader? 2556.610 What is the application process to apply to become a leader? 2556.615 Who reviews a leader application and who approves or disapproves a leader application? 2556.620 How does a leader differ from other VISTAs? 2556.625 What are terms and conditions of service for a leader? Subpart H—Restrictions and Prohibitions on Political Activities and Lobbying 2556.700 Who is covered by this subpart? 2556.705 What is prohibited political activity? 2556.710 What political activities are VISTAs prohibited from engaging in? 2556.715 What political activities may a VISTA participate in? 2556.720 May VISTAs participate in political organizations? 2556.725 May VISTAs participate in political campaigns? 2556.730 May VISTAs participate in elections? 2556.735 May a VISTA be a candidate for public office? 2556.740 May VISTAs participate in political fundraising activities? 2556.745 Are VISTAs prohibited from soliciting or discouraging the political participation of certain individuals? 2556.750 What restrictions and prohibitions are VISTAs subject to who campaign for a spouse or family member? 2556.755 May VISTAs participate in lawful demonstrations? 2556.760 May a sponsor or subrecipient approve the participation of a VISTA in a demonstration or other political meeting? 2556.765 What disciplinary actions are VISTAs subject to for violating restrictions or prohibitions on political activities? 2556.770 What are the requirements of VISTA sponsors or subrecipients regarding political activities? 2556.775 What prohibitions and restrictions on political activity apply to employees of VISTA sponsors and subrecipients? 2556.780 What prohibitions on lobbying activities apply to VISTA sponsors and subrecipients? Subpart A—General Information Authority:

    42 U.S.C. 4951-4953; 5 CFR part 734.

    § 2556.1 What is the purpose of the VISTA program?

    (a) The purpose of the VISTA program is to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems throughout the United States and certain U.S. territories. To effect this purpose, the VISTA program encourages and enables individuals from all walks of life to join VISTA to perform, on a full-time basis, meaningful and constructive service to assist in the solution of poverty and poverty-related problems and secure opportunities for self-advancement of persons afflicted by such problems.

    (b) The VISTA program objectives are to:

    (1) Generate private sector resources;

    (2) Encourage volunteer service at the local level;

    (3) Support efforts by local agencies and community organizations to achieve long-term sustainability of projects; and

    (4) Strengthen local agencies and community organizations to carry out the purpose of the VISTA program.

    § 2556.3 Who should read this part?

    This part may be of interest to:

    (a) Private nonprofit organizations, public nonprofit organizations, state government agencies, local government agencies, federal agencies, and tribal government agencies who are participating in the VISTA program as sponsors, or who are interested in participating in the VISTA program as sponsors.

    (b) Individuals 18 and older who are serving as a VISTA, or who are interested in serving as a VISTA.

    § 2556.5 What definitions apply in this part?

    Act or DVSA means the Domestic Volunteer Service Act of 1973, as amended, Public Law 93-113 (42 U.S.C. 4951 et seq.).

    Alternative oath or affirmation means a pledge of VISTA service taken by an individual who legally resides within a State, but who is not a citizen or national of the United States, upon that individual's enrollment into the VISTA program as a VISTA.

    Applicant for VISTA service means an individual who is in the process of completing, or has completed, an application for VISTA service as prescribed by CNCS, but who has been not been approved by CNCS to be a candidate.

    Application for VISTA service means the materials prescribed by CNCS to ascertain information on an individual's eligibility and suitability for VISTA service.

    Area Manager means a CNCS official who is head of a designated, regional set, or cluster of CNCS State Offices, or equivalent CNCS official.

    Assistance means VISTAs, leaders, or summer associates. “Assistance” also means technical assistance or training of VISTAs, leaders, summer associates, candidates, sponsors, or supervisors that are provided from funds appropriated by Congress for the purpose of supporting activities under the DVSA. “Assistance” also means grant funds.

    Candidate, when used in the context of an individual who has applied for VISTA service, means an individual whose application for VISTA service has been approved by CNCS, but who has not taken an oath, alternative oath or affirmation to serve in the VISTA program. Candidates may include those who were enrolled in the VISTA program at a prior time.

    Cost share means when an entity, such as a VISTA sponsor, reimburses CNCS part or all of the expenses associated with the operation of a VISTA project, such as the costs for one or more VISTAs, leaders, or summer associates placed in a VISTA project.

    CNCS means the Corporation for National and Community Service, established pursuant to section 191 of the National and Community Service Act of 1990, as amended, 42 U.S.C. 12651. CNCS is also sometimes referred to as “the Corporation.”

    Education award or Segal AmeriCorps Education Award means an end-of-service monetary benefit from CNCS's National Service Trust that is directed to designated educational institutions and is awarded to certain qualifying VISTAs who successfully complete an established term of VISTA service.

    Enroll, enrolled, or enrollment, when used in the context of VISTA service, refers to the status of an individual admitted to serve in the VISTA program. The enrollment period commences when the Oath to serve in the VISTA program is taken by the candidate and ends upon termination from a term of service in the VISTA program. The enrollment period may commence on a date earlier than the first day of a service assignment of an enrolled VISTA member.

    Full-time, when used in the context of VISTA service means service in which a VISTA, leader, or summer associate remains available for service without regard to regular working hours.

    Leader, a leader, or a VISTA leader means a VISTA member who is enrolled for full-time VISTA service, and who is also subject to the terms of subpart G of this part.

    Living allowance or living allowance payment means a monetary benefit paid for subsistence purposes to a VISTA member during VISTA service.

    Memorandum of Agreement means a written agreement between CNCS and a sponsor regarding the terms of the sponsor's involvement and responsibilities in the VISTA program.

    Nonpartisan election means:

    (1) An election in which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected; or

    (2) An election involving a question or issue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or issue of a similar character.

    Oath means an avowal to VISTA service, taken in accordance with 5 U.S.C. 3331, by an individual who is a U.S. citizen or national. The taking of the Oath effects an individual's enrollment into the VISTA program.

    On-duty or during service time means when a VISTA is either performing VISTA service or scheduled to do so.

    Project or VISTA project means a set of VISTA activities operated and overseen by, and the responsibility of, a sponsor, and assisted under this Part to realize the goals of title I of the DVSA.

    Project applicant or VISTA project applicant means an entity that submits an application to CNCS to operate, oversee, and be responsible for a VISTA project.

    Project application or VISTA project application means the application materials prescribed by CNCS to ascertain information on an applying entity's eligibility and suitability to operate, oversee, and be responsible for, a VISTA project.

    Project director or VISTA project director means a staff person, of legal age, of the sponsor, who has been assigned by the sponsor the overall responsibility for the management of the VISTA project.

    Sponsor, VISTA sponsor, or VISTA project sponsor means a public agency or private non-profit organization that receives assistance under title I of the DVSA, and is responsible for operating and overseeing a VISTA project. A public agency may be a federal, state, local or tribal government.

    State, when used as a noun, means one of the several states in the United States of America, District of Columbia, Virgin Islands, Puerto Rico, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

    State Program Director means a CNCS official who reports to an Area Manager or equivalent CNCS official, and who is the head of a CNCS State Office.

    Stipend or end-of-service stipend means an end-of-service lump-sum monetary benefit from CNCS that is awarded to certain qualifying VISTAs, who successfully complete an established term of VISTA service.

    Subrecipient means a public agency or private non-profit organization that enters into an agreement with a VISTA sponsor to receive one or more VISTAs, and to carry out a set of activities, assisted under this Part, to realize the goals of title I of the DVSA. A public agency may be a federal, state, local or tribal government.

    Summer associate means a VISTA member who is enrolled for VISTA service, during a period between May 1 and September 15, and who is also subject to the terms of subpart H of this part. A summer associate must be available to provide continuous full-time service for a period of at least eight weeks and a maximum of ten weeks.

    Supervisor or VISTA Supervisor means a staff member, of legal age, of the sponsor or a subrecipient, who has been assigned by the sponsor or the subrecipient, the responsibility for the day-to-day oversight of one or more VISTAs.

    Tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaskan native village or regional village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized by the United States or the State in which it resides as eligible for special programs and services provided to Indians because of their status as Indians.

    VISTA member, a VISTA, or the VISTA means an individual enrolled full-time for VISTA service in the VISTA program, as authorized under title I of the DVSA.

    VISTA program means the Federal government program named Volunteers in Service to America and authorized under title I of the Domestic Volunteer Service Act of 1973, as amended, 42 U.S.C. 4950 et seq.

    VISTA service means VISTA service activities performed by a VISTA member while enrolled in the VISTA program.

    § 2556.7 Are waivers of the regulations in this part allowed?

    Upon a determination of good cause, the Chief Executive Officer of CNCS may, subject to statutory limitations, waive any provisions of this part.

    Subpart B—VISTA Sponsors Authority:

    42 U.S.C. 4953(a), (f), 4954(b), (e), 4955(b), 4956, 5043(a)-(c), 5044(a)-(c), (e), 5046, 5052, 5056, and 5057; 42 U.S.C. 12651b (g)(10); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 2156.

    § 2556.100 Which entities are eligible to apply to become VISTA sponsors?

    The following entities are eligible to apply to become VISTA sponsors, and thereby undertake projects in the U.S. and certain U.S. territories:

    (a) Private nonprofit organization.

    (b) Public nonprofit organization.

    (c) State government or state government agency.

    (d) Local government or local government agency.

    (e) Tribal government or tribal government agency.

    § 2556.105 Which entities are prohibited from being VISTA sponsors?

    (a) An entity is prohibited from being a VISTA sponsor or from otherwise receiving VISTA assistance if a principal purpose or activity of the entity includes any of the following:

    (1) Electoral activities. Any activity designed to influence the outcome of elections to any public office, such as actively campaigning for or against, or supporting, candidates for public office; raising, soliciting, or collecting funds for candidates for public office; or preparing, distributing, providing funds for campaign literature for candidates, including leaflets, pamphlets, and material designed for the print or electronic media.

    (2) Voter registration activities. Any voter registration activity, such as providing transportation of individuals to voter registration sites; providing assistance to individuals in the process of registering to vote, including determinations of eligibility; or disseminating official voter registration material.

    (3) Transportation to the polls. Providing voters or prospective voters with transportation to the polls or raising, soliciting, or collecting funds for such activities.

    (b) Any organization that, subsequent to the receipt of VISTA assistance, makes as one of its principal purposes or activities any of the activities described in paragraph (a) of this section shall be subject to the procedures in §§ 2556.125 through 2556.145.

    § 2556.110 What VISTA assistance is available to a sponsor?

    (a) A sponsor may be approved for one or more VISTA positions.

    (b) A sponsor, upon review and approval by CNCS to establish a leader position or positions, and in accordance with criteria set forth at subpart G of this part, may be approved for one or more leader positions.

    (c) A sponsor, upon approval by CNCS to establish a summer associate position or positions, and in accordance with criteria set forth at subpart F of this part, may be approved for one or more summer associate positions.

    (d) A sponsor may be eligible to receive certain grant assistance under the terms determined and prescribed by CNCS.

    (e) A sponsor may receive training and technical assistance related to carrying out purposes of title I of the DVSA.

    § 2556.115 Is a VISTA sponsor required to provide a cash or in-kind match?

    (a) A sponsor is not required to provide a cash match for any of the assistance listed in § 2556.110.

    (b) A sponsor must provide supervision, work space, service-related transportation, and any other materials necessary to operate and complete the VISTA project and support the VISTA.

    § 2556.120 How does a VISTA sponsor ensure the participation of people in the communities to be served?

    (a) To the maximum extent practicable, the people of the communities to be served by VISTA members shall participate in planning, developing, and implementing programs.

    (b) The sponsor shall articulate in its project application how it will engage or continue to engage relevant communities in the development and implementation of programs.

    § 2556.125 May CNCS deny or reduce VISTA assistance to an existing VISTA project?

    (a) CNCS may deny or reduce VISTA assistance where a denial or reduction is based on:

    (1) Legislative requirement;

    (2) Availability of funding;

    (3) Failure to comply with applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement;

    (4) Ineffective management of CNCS resources;

    (5) Substantial failure to comply with CNCS policy and overall objectives under a contract, grant agreement, or applicable Memorandum of Agreement; or

    (6) General policy.

    (b) In instances where the basis for denial or reduction of VISTA assistance may also be the basis for the suspension or termination of a VISTA project under this subpart, CNCS shall not be limited to the use of this section to the exclusion of the procedures for suspension or termination in this subpart.

    § 2556.130 What is the procedure for denial or reduction of VISTA assistance to an existing VISTA project?

    (a) CNCS shall notify the sponsor in writing, at least 75 calendar days before the anticipated denial or reduction of VISTA assistance, that CNCS proposes to deny or reduce VISTA assistance. CNCS's written notice shall state the reasons for the decision to deny or reduce assistance and shall provide an opportunity period for the sponsor to respond to the merits of the proposed decision. CNCS retains sole authority to make the final determination whether the VISTA assistance at issue shall be denied or reduced, as appropriate.

    (b) Where CNCS's notice of proposed decision is based upon a specific charge of the sponsor's failure to comply with the applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement, the notice shall offer the sponsor an opportunity period to respond in writing to the notice, with any affidavits or other supporting documentation, and to request an informal hearing before a mutually agreed-upon impartial hearing officer. The authority of such a hearing officer shall be limited to conducting the hearing and offering recommendations to CNCS. Regardless of whether or not an informal hearing takes place, CNCS shall retain full authority to make the final determination whether the VISTA assistance is denied or reduced, as appropriate.

    (c) If the recipient requests an informal hearing, in accordance with paragraph (b) of this section, such hearing shall be held at a date specified by CNCS and held at a location convenient to the sponsor.

    (d) If CNCS's proposed decision is based on ineffective management of resources, or on the substantial failure to comply with CNCS policy and overall objectives under a contract, grant agreement, or an applicable Memorandum of Agreement, CNCS shall inform the sponsor in the notice of proposed decision of the opportunity to show cause why VISTA assistance should not be denied or reduced, as appropriate. CNCS shall retain full authority to make the final determination whether the VISTA assistance at issue shall be denied or reduced, as appropriate.

    (e) The recipient shall be informed of CNCS's final determination on whether the VISTA assistance at issue shall be denied or reduced, and the basis for the determination.

    (f) The procedure in this section does not apply to a denial or reduction of VISTA assistance based on legislative requirements, availability of funding, or on general policy.

    § 2556.135 What is suspension and when may CNCS suspend a VISTA project?

    (a) Suspension is any action by CNCS temporarily suspending or curtailing assistance, in whole or in part, to all or any part of a VISTA project, prior to the time that the project term is concluded. Suspension does not include the denial or reduction of new or additional VISTA assistance.

    (b) In an emergency situation for up to 30 consecutive days, CNCS may suspend assistance to a sponsor, in whole or in part, for the sponsor's material failure or threatened material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement. Such suspension in an emergency situation shall be pursuant to notice and opportunity to show cause why assistance should not be suspended.

    (c) To initiate suspension proceedings, CNCS shall notify the sponsor in writing that CNCS is suspending assistance in whole or in part. The written notice shall contain the following:

    (1) The grounds for the suspension and the effective date of the commencement of the suspension;

    (2) The sponsor's right to submit written material in response to the suspension to show why the VISTA assistance should not be suspended, or should be reinstated, as appropriate; and

    (3) The opportunity to adequately correct the deficiency, or deficiencies, which led to CNCS's notice of suspension.

    (d) In deciding whether to continue or lift the suspension, as appropriate, CNCS shall consider any timely material presented in writing, any material presented during the course of any informal meeting, as well as any showing that the sponsor has adequately corrected the deficiency which led to the initiation of suspension.

    (e) During the period of suspension of a sponsor, no new expenditures, if applicable, shall be made by the sponsor's VISTA project at issue and no new obligations shall be incurred in connection with the VISTA project at issue except as specifically authorized in writing by CNCS.

    (f) CNCS may, in its discretion, modify the terms, conditions, and nature of the suspension or rescind the suspension action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency or deficiencies which led to the suspension and that repetition is not foreseeable.

    § 2556.140 What is termination and when may CNCS terminate a VISTA project?

    (a) Termination means any action by CNCS permanently terminating or curtailing assistance to all or any part of a sponsor's VISTA project prior to the time that the project term is concluded.

    (b) CNCS may terminate assistance to a sponsor in whole or in part for the sponsor's material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement.

    (c) To initiate termination proceedings, CNCS shall notify the sponsor in writing that CNCS is proposing to terminate assistance in whole or in part. The written notice shall contain the following:

    (1) A description of the VISTA assistance proposed for termination, the grounds that warrant such proposed termination, and the proposed date of effective termination;

    (2) Instructions regarding the sponsor's opportunity, within 21 calendar days from the date of issuance of the notice, to respond in writing to the merits of the proposed termination and instructions regarding the sponsor's right to request a full and fair hearing before a mutually agreed-upon impartial hearing officer; and

    (3) Invitation of voluntary action by the sponsor to adequately correct the deficiency or deficiencies which led to CNCS's notice of proposed termination.

    (d) In deciding whether to effect termination of VISTA assistance, CNCS shall consider any relevant, timely material presented in writing; any relevant material presented during the course of any full and fair hearing; as well as, any showing that the sponsor has adequately corrected the deficiency which led to the initiation of termination proceedings.

    (e) Regardless of whether or not a full and fair hearing takes place, CNCS shall retain all authority to make the final determination as to whether the termination of VISTA assistance is appropriate.

    (f) The sponsor shall be informed of CNCS's final determination on the proposed termination of VISTA assistance, and the basis or bases for the determination.

    (g) CNCS may, in its discretion, modify the terms, conditions, and nature of a termination action or rescind a termination action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency which led to the termination, or the initiation of termination proceedings, and that repetition is not threatened.

    § 2556.145 May CNCS pursue other remedies against a VISTA project for a sponsor's material failure to comply with any other requirement not set forth in this subpart?

    The procedures established by this subpart shall not preclude CNCS from pursuing any other remedies authorized by law.

    § 2556.150 What activities are VISTA members not permitted to perform as part of service?

    (a) A VISTA may not perform any activities in the project application that do not correspond with the purpose of the VISTA program, as described in § 2556.1, or that the Director has otherwise prohibited.

    (b) A VISTA may not perform services or duties as a VISTA member that would otherwise be performed by employed workers or other volunteers (not including participants under the DVSA and the National and Community Service Act of 1990, as amended).

    (c) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, that supplant the hiring of or result in the displacement of employed workers or other volunteers (not including participants under the DVSA or the National and Community Service Act of 1990, as amended).

    (d) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, which impair existing contracts for service.

    (e) The requirements of paragraphs (b) through (d) of this section do not apply when the sponsor requires the service in order to avoid or relieve suffering threatened by, or resulting from, a disaster, civil disturbance, terrorism, or war.

    (f) A sponsor or subrecipient shall not request or receive any compensation from a VISTA; from a beneficiary of VISTA project services; or any other source for services of a VISTA.

    § 2556.155 May a sponsor manage a VISTA project through a subrecipient?

    (a) A sponsor may carry out a VISTA project through one or more subrecipients that meet the eligibility criteria of § 2556.100.

    (b) The sponsor must enter into a subrecipient agreement with each subrecipient. A subrecipient agreement must have at least the following elements:

    (1) A project plan to be implemented by the subrecipient;

    (2) Records to be kept and reports to be submitted;

    (3) Responsibilities of the parties and other program requirements; and

    (4) Suspension and termination policies and procedures.

    (c) The sponsor retains the responsibility for compliance with a Memorandum of Agreement; the applicable regulations in this Part; and all applicable policies, procedures, and guidance issued by CNCS regarding the VISTA program.

    (d) A sponsor shall not request or receive any compensation from a subrecipient for services performed by a VISTA.

    (e) A sponsor shall not receive payment from, or on behalf of, the subrecipient for costs of the VISTA assistance, except in two limited circumstances:

    (1) For reasonable and actual costs incurred by the sponsor directly related to the subrecipient's participation in a VISTA project; and

    (2) For any cost share related to a VISTA placed with the subrecipient in the VISTA project.

    § 2556.160 What are the sponsor's requirements for cost share projects?

    (a) A sponsor shall enter into a written agreement for cost share as prescribed by CNCS.

    (b) A sponsor shall make timely cost share payments as prescribed by CNCS and applicable federal law and regulations.

    (c) In addition to other sources of funds, a sponsor may use funds from federal, state, or local government agencies, provided the requirements of those agencies and their programs are met.

    (d) Subject to review and approval by CNCS, CNCS may enter into an agreement with another entity to receive and utilize funds to make cost share payments on behalf of the sponsor.

    § 2556.165 What Fair Labor Standards apply to VISTA sponsors and subrecipients?

    All sponsors and subrecipients that employ laborers and mechanics for construction, alteration, or repair of facilities shall pay wages at prevailing rates as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. 276a.

    § 2556.170 What nondiscrimination requirements apply to sponsors and subrecipients?

    (a) An individual with responsibility for the operation of a project that receives CNCS assistance must not discriminate against a participant in, or member of the staff of, such project on the basis of race, color, national origin, sex, age, or political affiliation of such participant or staff member, or on the basis of disability, if the participant or staff member is a qualified individual with a disability.

    (b) Any CNCS assistance constitutes Federal financial assistance for purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), and constitutes Federal financial assistance to an education program or activity for purposes of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).

    (c) An individual with responsibility for the operation of a project that receives CNCS assistance may not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with CNCS funds. This provision does not apply to the employment (with CNCS assistance) of any staff member of a CNCS-supported project who was employed with the organization operating the project on the date the CNCS assistance was awarded.

    (d) Sponsors must notify all program participants, staff, applicants, and beneficiaries of:

    (1) Their rights under applicable federal nondiscrimination laws, including relevant provisions of the national service legislation and implementing regulations; and

    (2) The procedure for filing a discrimination complaint. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of race, color, national origin, gender, age, religion, or political affiliation. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of disability, if the VISTA is a qualified individual with a disability.

    § 2556.175 What limitations are VISTA sponsors subject to regarding religious activities?

    (a) A VISTA shall not give religious instruction, conduct worship services or engage in any form of proselytizing as part of his or her duties.

    (b) A sponsor or subrecipient may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use any CNCS assistance, including the services of any VISTA or VISTA assistance, to support any inherently religious activities, such as worship, religious instruction, or proselytizing, as part of the programs or services assisted by the VISTA program. If a VISTA sponsor or subrecipient conducts such inherently religious activities, the activities must be offered separately, in time or location, from the programs or services assisted under this Part by the VISTA program.

    Subpart C—VISTA Members Authority:

    42 U.S.C. 4953(b)(3), (f), 4954(a)-(c), 5044(e).

    § 2556.200 Who may apply to serve as a VISTA?

    An individual may apply to serve as a VISTA if all the following requirements are met:

    (a) The individual is at least eighteen years of age upon taking an oath or affirmation, as appropriate, to enter VISTA service. There is no upper age limit.

    (b) The individual is a United States citizen or national, or is legally residing within a state. For eligibility purposes, a lawful permanent resident alien is considered to be an individual who is legally residing within a state.

    § 2556.205 What commitments and agreements must an individual make to serve in the VISTA program?

    (a) To the maximum extent practicable, the individual must make a full-time commitment to remain available for service without regard to regular working hours, at all times during his or her period of service, except for authorized periods of leave.

    (b) To the maximum extent practicable, the individual must make a full-time personal commitment to alleviate poverty and poverty-related problems, and to live among and at the economic level of the low-income people served by the project.

    (c) The individual's service cannot be used to satisfy service requirements of parole, probation, or community service prescribed by the criminal justice system.

    (d) A VISTA candidate or member agrees to undergo an investigation into his or her criminal history or background as a condition of enrollment, or continued enrollment, in the VISTA program.

    § 2556.210 Who reviews and approves an application for VISTA service?

    CNCS has the final authority to approve or deny VISTA applications for VISTA service.

    Subpart D—Terms, Protections, and Benefits of VISTA Members Authority:

    42 U.S.C. 4954(a), (b), (d), 4955, 5044(e), 5055, and 5059; 42 U.S.C. 12602(c).

    § 2556.300 Is a VISTA considered a Federal employee and is a VISTA considered an employee of the sponsor?

    (a) Except for the purposes listed here, a VISTA is not considered an employee of the Federal Government. A VISTA is considered a Federal employee only for the following purposes:

    (1) Federal Tort Claims Act—28 U.S.C. 1346(b); 28 U.S.C. 2671-2680;

    (2) Federal Employees' Compensation Act—5 U.S.C. chapter 81, subchapter 1;

    (3) Hatch Act—5 U.S.C. chapter 73, subchapter III;

    (4) Internal Revenue Service Code—26 U.S.C. 1 et seq.; and

    (5) Title II of the Social Security Act—42 U.S.C. 401 et seq.

    (b) A VISTA is not considered a federal employee for any purposes other than those set forth in paragraph (a) of this section.

    (c) A VISTA is not covered by Federal or state unemployment compensation related to their enrollment or service in the VISTA program. A VISTA's service is not considered employment for purposes of eligibility for, or receipt of, federal, state, or any other unemployment compensation.

    (d) Monetary allowances, such as living allowances that VISTAs receive during VISTA service are not considered wages. Monetary allowances, such as living allowances, that VISTAs receive during VISTA service are considered income for such purposes as Federal income tax and Social Security.

    (e) A VISTA is not, under any circumstances, considered an employee of the sponsor or subrecipient to which he or she is assigned to serve. No VISTA is in an employment relationship with the sponsor or subrecipient to which he or she is assigned. The sponsor is not authorized to make contributions to any state unemployment compensation fund on a VISTA's behalf.

    § 2556.305 What is the duration and scope of service for a VISTA?

    (a) To serve as a VISTA, an individual makes a full-time commitment for a minimum of one year, without regard to regular working hours.

    (b) A VISTA carries out activities in accordance with the purpose of the VISTA program, as described in § 2556.1.

    (c) To the maximum extent practicable, the VISTA shall live among and at the economic level of the low-income community served by the project, and actively seek opportunities to engage with that low-income community without regard to regular work hours.

    (d) A VISTA carries out service activities in conformance with the sponsor's approved project application, including any description of a VISTA assignment as contained in the project application; and, in conformance with the purpose of title I of the DVSA. In any case where there is a conflict between the project application and the DVSA, the DVSA takes precedence.

    (e) Under no circumstances may an individual be enrolled to serve as a VISTA beyond five years.

    § 2556.310 What are the lines of supervision or oversight of a VISTA, a VISTA sponsor, and CNCS during a VISTA's term of service?

    (a) The VISTA sponsor is responsible for the day-to-day supervision and oversight of the VISTA.

    (b) CNCS is responsible for ongoing monitoring and oversight of the VISTA sponsor's project where the VISTA is assigned. CNCS is responsible for selecting the VISTA, assigning the VISTA to a project, removal of a VISTA from a project, and VISTA separation actions such as termination from the VISTA program.

    § 2556.315 What are terms and conditions for official travel for a VISTA?

    (a) CNCS may provide official travel for a VISTA candidate or a VISTA, as appropriate, to attend CNCS-directed activities, such as pre-service training, placement at the project site, in-service training events, and return from the project site to home of record.

    (b) CNCS must approve all official travel of a VISTA candidate or a VISTA, including the mode of travel.

    (c) CNCS may provide for official emergency travel for a VISTA in case of a natural disaster or the critical illness or death of an immediate family member.

    § 2556.320 What benefits may a VISTA receive during VISTA service?

    (a) A VISTA receives a living allowance computed on a daily rate. Living allowances vary according to the local cost-of-living in the project area where the VISTA is assigned.

    (b) Subject to a maximum amount, and at the discretion and upon approval of CNCS, a VISTA may receive payment for settling-in expenses, as determined by CNCS.

    (c) Subject to a maximum amount, and at the discretion of CNCS, in the event of an emergency (such as theft, fire loss, or special clothing necessitated by severe climate), a VISTA may receive an emergency expense payment in order to resume VISTA service activities, as determined and approved by CNCS.

    (d) Subject to a maximum amount, and at the discretion of CNCS, a VISTA may receive a baggage allowance for the actual costs of transporting personal effects to the project site to which the VISTA is assigned to serve, as determined by CNCS.

    (e) To the extent eligible, a VISTA may receive health care through a health benefits program provided by CNCS.

    (f) To the extent eligible, a VISTA may receive child care support through a child care program provided by CNCS.

    (g) To the extent eligible, a VISTA may elect to receive a Segal AmeriCorps Education Award, and upon successful completion of service, receive that award in an amount prescribed by CNCS, in accordance with the applicable provisions of 45 CFR parts 2526, 2527, and 2528.

    (1) A VISTA is eligible to elect to receive a Segal AmeriCorps Education Award if he or she is a citizen, national, or lawful permanent resident alien of the United States.

    (2) A VISTA who elects a Segal AmeriCorps Education Award is eligible to request forbearance of a student loan from his or her loan-holder. A VISTA who elects a Segal AmeriCorps Education Award may, upon successful completion of service, be eligible to receive up to 100 percent of the interest accrued on a qualified student loan, consistent with the applicable provisions of 45 CFR part 2529.

    (3) A VISTA is not eligible to receive more than an amount equal to the aggregate value of two full-time Segal AmeriCorps Education Awards in his or her lifetime.

    (4) Other than for a summer associate, the amount of a Segal AmeriCorps Education Award for the successful completion of a VISTA term of service is equal to the maximum amount of a Federal Pell Grant under Section 401 of the Higher Education Act of 1965 (20 U.S.C. 1070a) that a student eligible for such grant may receive in the aggregate for the fiscal year in which the VISTA has enrolled in the VISTA program.

    (h) A VISTA who does not elect to receive a Segal AmeriCorps Education Award, upon successful completion of service, receives an end-of-service stipend in an amount prescribed by CNCS.

    (i) In the event that a VISTA does not successfully complete a full term of service, a VISTA shall not receive a pro-rated Segal AmeriCorps Education Award or a pro-rated end-of-service stipend, except in cases where the appropriate State Program Director determines the VISTA did not successfully complete a full term of service because of a compelling, personal circumstance. Examples of a compelling, personal circumstance are: Serious medical condition or disability of a VISTA during VISTA service; critical illness or disability of a VISTA's immediate family member (spouse, domestic partner, parent, sibling, child, or guardian) if this event makes completing a term of service unreasonably difficult; or unusual conditions not attributable to the VISTA, such as natural disaster, strike, or premature closing of a project, that make completing a term unreasonably difficult or infeasible.

    (j) In the event of a VISTA's death during service, his or her family or others that he or she named as beneficiary in accordance with section 5582 of title 5, United States Code, shall be paid a pro-rated end-of-service stipend for the period during which the VISTA served. If the VISTA had elected to receive the Segal AmeriCorps Education Award for successful completion of a full term of VISTA service, prior to payment to the named beneficiary, CNCS shall convert that election to an end-of-service stipend and pay the VISTA's family, or others that he or she named as beneficiary, a pro-rated end-of-service stipend accordingly.

    § 2556.325 May a VISTA be provided coverage for legal defense expenses related to VISTA service?

    Under certain circumstances, as set forth in §§ 2556.330 through 2556.335, CNCS may pay reasonable legal defense expenses incurred in judicial or administrative proceedings for the defense of a VISTA serving in the VISTA program. Such covered legal expenses consist of counsel fees, court costs, bail, and other expenses incidental to a VISTA's legal defense.

    § 2556.330 When may a VISTA be provided coverage for legal defense expenses related to criminal proceedings?

    (a) For the legal defense of a VISTA member who is charged with a criminal offense related to the VISTA member's service, up to and including arraignment in Federal, state, and local criminal proceedings, CNCS may pay actual and reasonable legal expenses. CNCS is not required to pay any expenses for the legal defense of a VISTA member where he or she is charged with a criminal offense arising from alleged activity or action that is unrelated to that VISTA's service.

    (b) A VISTA member's service is clearly unrelated to a charged offense:

    (1) When the activity or action is alleged to have occurred prior to the VISTA member's VISTA service.

    (2) When the VISTA member is not at his or her assigned project location, such as during periods of approved leave, medical leave, emergency leave, or in administrative hold status in the VISTA program.

    (3) When the activity or action is alleged to have occurred at or near his or her assigned project, but is clearly not part of, or required by, the VISTA member's service assignment.

    (c) For the legal defense, beyond arraignment in Federal, state, and local criminal proceedings, of a VISTA member who is charged with a criminal offense, CNCS may also pay actual and reasonable legal expenses:

    (1) When the charged offense against the VISTA member relates exclusively to his or her VISTA assignment or status as a VISTA member;

    (2) When the charge offense against the VISTA member arises from an alleged activity or action that is a part of, or required by, the VISTA member's VISTA assignment;

    (3) When the VISTA member has not admitted a willful or knowing violation of law; or

    (4) When the charged offense against the VISTA member is not a minor offense or misdemeanor, such as a minor vehicle violation.

    (d) Notwithstanding paragraphs (a) through (c) of this section, there may be situations in which the criminal proceedings at issue arise from a matter that also gives rise to a civil claim under the Federal Tort Claims Act. In such a situation, the U.S. Department of Justice may, on behalf of the United States, agree to defend the VISTA. If the U.S. Department of Justice agrees to defend the VISTA member, unless there is a conflict between the VISTA member's interest and that of the United States, CNCS will not pay for expenses associated with any additional legal representation (such as counsel fees for private counsel) for the VISTA member.

    § 2556.335 When may a VISTA be provided coverage for legal defense expenses related to civil or administrative proceedings?

    For the legal defense in Federal, state, and local civil judicial and administrative proceedings of a VISTA member, CNCS may also pay actual and reasonable legal expenses, where:

    (a) The complaint or charge is against the VISTA, and is directly related to his or her VISTA service and not to his or her personal activities or obligations;

    (b) The VISTA has not admitted to willfully or knowingly pursuing a course of conduct that would result in the plaintiff or complainant initiating such a proceeding; and

    (c) The judgment sought involves a monetary award that exceeds $1,000.

    § 2556.340 What is non-competitive eligibility and who is eligible for it?

    (a) Non-competitive eligibility is a status attained by an individual such that the individual is eligible for appointment by a Federal agency in the Executive branch, into a civil service position in the federal competitive service, in accordance with 5 CFR 315.605.

    (b) An individual who successfully completes at least a year-long term of service as a VISTA, and who has not been terminated for cause from the VISTA program at any time, retains non-competitive eligibility status for one year following the end of the term of service as a VISTA.

    (c) In addition to the retention of the one year of non-competitive eligibility status as provided in paragraph (b) of this section, an individual's non-competitive eligibility status may extend for two more years to a total of three years if the individual is:

    (1) In the military service;

    (2) Studying at a recognized institution of higher learning; or

    (3) In another activity which, in the view of the federal agency referenced in paragraph (a) of this section, warrants extension.

    § 2556.345 Who may present a grievance?

    (a) Under the VISTA program grievance procedure, a grievance may be presented by any individual who is currently enrolled as a VISTA in the VISTA program or who was enrolled as a VISTA in the VISTA program within the past 30 calendar days.

    (b) A VISTA's grievance shall not be construed as reflecting on the VISTA's standing, performance, or desirability as a VISTA.

    (c) A VISTA who presents a grievance shall not be subjected to restraint, interference, coercion, discrimination, or reprisal because of presentation of views.

    § 2556.350 What matters are considered grievances?

    (a) Under the VISTA program grievance procedure, grievances are matters of concern, brought by a VISTA, that arise out of, and directly affect, the VISTA's service situation or that arise out of a violation of a policy, practice, or regulation governing the terms or conditions of the VISTA's service, such that the violation results in the denial or infringement of a right or benefit to the VISTA member.

    (b) Matters not within the definition of a grievance as defined in paragraph (a) of this section are not grievable, and therefore, are excluded from the VISTA program grievance procedure. Though not exhaustive, examples of matters excluded from the VISTA program grievance procedure are:

    (1) Those matters related to a sponsor's or project's continuance or discontinuance; the number of VISTAs assigned to a VISTA project; the increases or decreases in the level of support provided to a VISTA project; the suspension or termination of a VISTA project; or the selection or retention of VISTA project staff.

    (2) Those matters for which a separate administrative procedure or complaint process is provided, such as early termination for cause, claims of discrimination during service, and federal worker's compensation claims filed for illness or injury sustained in the course of carrying out VISTA activities.

    (3) Those matters related to any law, published rule, regulation, policy, or procedure.

    (4) Those matters related to housing during a VISTA member's service.

    (5) Those matters which are, by law, subject to final administrative review outside CNCS.

    (6) Those matters related to actions taken, or not taken, by a VISTA sponsor or subrecipient, or CNCS, in compliance with or in order to fulfill the terms of a contract, grant, or other agreement related to the VISTA program.

    (7) Those matters related to the internal management of CNCS, unless such matters are shown to specifically and directly affect the VISTA's service situation or terms or conditions of his or her VISTA service.

    § 2556.355 May a VISTA have access to records as part of the VISTA grievance procedure?

    (a) A VISTA is entitled to review any material in his or her official VISTA file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of materials that may be withheld include references obtained under pledge of confidentiality, official VISTA files of other VISTAs, and privileged intra-agency documents.

    (b) A VISTA may review relevant materials in the possession of a sponsor to the extent such materials are disclosable by the sponsor under applicable freedom of information act and privacy laws.

    § 2556.360 How may a VISTA bring a grievance?

    (a) Bringing a grievance—Step 1. (1) While currently enrolled in the VISTA program, or enrolled in the VISTA program within the past 30 calendar days, a VISTA may bring a grievance to the sponsor or subrecipient where he or she is assigned to serve within 15 calendar days that the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event. If the grievance arises out of a continuing condition or practice that individually affects a VISTA, while enrolled the VISTA may bring it at any time while he or she is affected by a continuing condition or practice.

    (2) A VISTA brings a grievance by presenting it in writing to the executive director, or comparable individual, of the sponsoring organization where the VISTA is assigned, or to the sponsor's representative who is designated to receive grievances from a VISTA.

    (3) The sponsor shall review and respond in writing to the VISTA's grievance, within 10 calendar days of receipt of the written grievance. The sponsor may not fail to respond to a complaint raised by a VISTA on the basis that it is not an actual grievance, or that it is excluded from coverage as a grievance, but may, in the written response, dismiss the complaint and refuse to grant the relief requested on either of those grounds.

    (4) If the grievance brought by a VISTA involves a matter over which the sponsor has no substantial control or if the sponsor's representative is the supervisor of the VISTA, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section, and present the grievance in writing directly to the State Program Director, as described in paragraph (b) of this section.

    (b) Bringing a grievance—Step 2. (1) If, after a VISTA brings a grievance as set forth in paragraphs (a)(1) and (2) of this section, the matter is not resolved, he or she may submit the grievance in writing to the appropriate State Program Director. The VISTA must submit the grievance to the State Program Director either:

    (i) Within seven calendar days of receipt of the response of the sponsor; or,

    (ii) In the event the sponsor has not issued a response to the VISTA within 10 calendar days of receipt of the written grievance, within 17 calendar days.

    (2) If the grievance involves a matter over which either the sponsor or subrecipient has no substantial control or if the sponsor's representative is the supervisor of the VISTA, as described in paragraph (a)(4) of this section, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section, and submit the grievance in writing directly to the State Program Director. In such a case, the VISTA must submit the grievance to the State Program Director within 15 calendar days of the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event.

    (3) Within ten working days of receipt of the grievance, the State Program Director shall respond in writing, regardless of whether or not the matter constitutes a grievance as defined under this grievance procedure, and/or is timely submitted. In the response, the State Program Director may determine that the matter submitted as a grievance is not grievable, is not considered a grievance, or fails to meet the time limit for response. If the State Program Director makes any such determination, he or she may dismiss the complaint, setting forth the reason(s) for the dismissal. In such a case, the State Program Director need not address the complaint on the merits, nor make a determination of the complaint on the merits.

    § 2556.365 May a VISTA appeal a grievance?

    (a) The VISTA may appeal in writing to the appropriate Area Manager the response of the State Program Director to the grievance, as set forth in § 2556.360(b)(3). To be eligible to appeal a grievance response to the Area Manager, the VISTA must have exhausted all appropriate actions as set forth in § 2556.360.

    (b) A VISTA's grievance appeal must be in writing and contain sufficient detail to identify the subject matter of the grievance, specify the relief requested, and be signed by the VISTA.

    (c) The VISTA must submit a grievance appeal to the appropriate Area Manager no later than 10 calendar days after the State Program Director issues his or her response to the grievance.

    (d) Certain matters contained in a grievance appeal may be rejected, rather than denied on the merits, by the Area Manager. A grievance appeal may be rejected, in whole or in part, for any of the following reasons:

    (1) The grievance appeal was not submitted to the appropriate Area Manager within the time limit specified in paragraph (c) of this section;

    (2) The grievance appeal consists of matters not contained within the definition of a grievance, as specified in section § 2556.350(a);

    (3) The grievance appeal consists of matters excluded from the VISTA program grievance procedure, as specified in § 2556.350(b); or

    (4) The grievance appeal contains matters that are moot, or for which relief has otherwise been granted.

    (e) Within 14 calendar days of receipt of the grievance, the appropriate Area Manager shall decide the grievance appeal on the merits, or reject the grievance appeal in whole or in part, or both, as appropriate. The Area Manager shall notify the VISTA in writing of the decision and specify the grounds for the appeal decision. The appeal decision shall include a statement of the basis for the decision and is a final decision of CNCS.

    Subpart E—Termination for Cause Procedures Authority:

    42 U.S.C. 4953(b), (c), (f), and 5044(e).

    § 2556.400 What is termination for cause and what are the criteria for termination for cause?

    (a) Termination for cause is discharge of a VISTA from the VISTA program due to a deficiency, or deficiencies, in conduct or performance.

    (b) CNCS may terminate for cause a VISTA for any of the following reasons:

    (1) Conviction of any criminal offense under Federal, State, or local statute or ordinance;

    (2) Violation of any provision of the Domestic Service Volunteer Act of 1973, as amended, or any CNCS or VISTA program policy, regulation, or instruction;

    (3) Failure, refusal, or inability to perform prescribed project duties as outlined in the project plan, assignment description, or as directed by the sponsor to which the VISTA is assigned;

    (4) Involvement in activities which substantially interfere with the VISTA's performance of project duties;

    (5) Intentional false statement, misrepresentation, omission, fraud, or deception in seeking to obtain selection as a VISTA in the VISTA program;

    (6) Any conduct on the part of the VISTA which substantially diminishes his or her effectiveness as a VISTA; or

    (7) Unsatisfactory performance of an assignment.

    § 2556.405 Who has sole authority to remove a VISTA from a VISTA project and who has sole authority to terminate a VISTA from the VISTA program?

    (a) CNCS has the sole authority to remove a VISTA from a project where he or she has been assigned.

    (b) CNCS has the sole authority to terminate for cause, or otherwise terminate, a VISTA from the VISTA program.

    (c) Neither the sponsoring organization nor any of its subrecipients has the authority to remove a VISTA from a project or to terminate a VISTA for cause, or for any other basis, from the VISTA program.

    § 2556.410 May a sponsor request that a VISTA be removed from its project?

    (a) The head of a sponsoring organization, or his or her designee, may request that CNCS remove a VISTA assigned to its project. Any such request must be submitted in writing to the appropriate State Program Director and should state the reasons for the request.

    (b) The State Program Director may, at his or her discretion, attempt to resolve the situation with the sponsor so that an alternative solution other than removal of the VISTA from the project assignment is reached.

    (c) When an alternative solution, as referenced in paragraph (b) of this section, is not sought, or is not reached within a reasonable time period, the State Program Director shall remove the VISTA from the project.

    § 2556.415 May CNCS remove a VISTA from a project without the sponsor's request for removal?

    Of its own accord, CNCS may remove a VISTA from a project assignment without the sponsor's request for removal.

    § 2556.420 What are termination for cause proceedings?

    (a) Termination for cause proceedings are initiated by the State Program Director when CNCS removes a VISTA from a project assignment due to an alleged deficiency, or alleged deficiencies, in conduct or performance.

    (b) The State Program Director or other CNCS State Office staff, to the extent practicable, communicates the matter with the VISTA who is removed from a VISTA project and the administrative procedures as set forth in paragraphs (c) through (e) of this section.

    (c) The State Program Director shall notify VISTA in writing of CNCS's proposal to terminate for cause. The written proposal to terminate him or her for cause must give the VISTA the reason(s) for the proposed termination, and notify him or her that he or she has 10 calendar days within which to answer in writing the proposal to terminate him or her for cause, and to furnish any accompanying statements or written material. The VISTA must submit any answer to the appropriate State Program Director identified in the written proposal to terminate for cause within the deadline specified in the proposal to terminate for cause.

    (d) Within 10 calendar days of the expiration of the VISTA's deadline to answer the proposal to terminate for cause, the appropriate State Program Director shall issue a written decision regarding the proposal to terminate for cause.

    (1) If the decision is to terminate the VISTA for cause, the decision shall set forth the reasons for the determination and the effective date of termination (which may be on or after the date of the decision).

    (2) If the decision is not to terminate the VISTA for cause, the decision shall indicate that the proposal to terminate for cause is rescinded.

    (e) A VISTA who does not submit a timely answer to the appropriate State Program Director, as set forth in paragraph (c) of this section, is not entitled to appeal the decision regarding the proposal to terminate for cause. In such cases, CNCS may terminate the VISTA for cause, on the date identified in the decision, and the termination action is final.

    § 2556.425 May a VISTA appeal his or her termination for cause?

    (a) Within 10 calendar days of the appropriate State Program Director's issuance of the decision to terminate the VISTA for cause, as set forth in § 2556.420(d), the VISTA may appeal the decision to the appropriate Area Manager. The appeal must be in writing and specify the reasons for the VISTA's disagreement with the decision.

    (b) CNCS shall not incur any expenses or travel allowances for the VISTA in connection with the preparation or presentation of the appeal.

    (c) The VISTA may have access to records as follows:

    (1) The VISTA may review any material in the VISTA's official CNCS file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of documents that may be withheld include references obtained under pledge of confidentiality, official files of other program participants, and privileged intra-agency documents.

    (2) The VISTA may review relevant records in the possession of a sponsor to the extent such documents are disclosable by the sponsor under applicable freedom of information act and privacy laws.

    (d) Within 14 calendar days of receipt of any appeal by the VISTA, the Area Manager or equivalent CNCS official shall issue a written appeal determination. The appeal determination shall indicate the reasons for such an appeal determination. The appeal determination shall be final.

    § 2556.430 Is a VISTA who is terminated early from the VISTA program for other than cause entitled to appeal under these procedures?

    (a) Only a VISTA whose early termination from the VISTA program is for cause, and who has answered the proposal to terminate him or her for cause in a timely manner, as set forth in § 2556.420(c), is entitled to appeal the early termination action, as referenced in § 2556.425. A termination for cause is based on a deficiency, or deficiencies, in the performance or conduct of a VISTA.

    (b) The following types of early terminations from the VISTA program are not terminations for cause, and are not entitled to appeal under the early termination appeal procedure set forth in §§ 2556.420 and 2556.425:

    (1) Resignation from the VISTA program prior to the issuance of a decision to terminate for cause, as set forth in § 2556.420(d);

    (2) Early termination from the VISTA program because a VISTA did not secure a suitable reassignment to another project; and

    (3) Medical termination from the VISTA program.

    Subpart F—Summer Associates Authority:

    42 U.S.C. 4954(d), (e).

    § 2556.500 How is a position for a summer associate established in a project?

    (a) From time-to-time, the State Program Director invites sponsors within the state to apply for one or more positions for individuals to serve as summer associates at the sponsor's VISTA project.

    (b) Subject to VISTA assistance availability, CNCS approves the establishment of summer associate positions based on the following factors:

    (1) The need in the community, as demonstrated by the sponsor, for the performance of project activities by a summer associate(s);

    (2) The content and quality of summer associate project plans;

    (3) The capacity of the sponsor to implement the summer associate project activities; and

    (4) The sponsor's compliance with all applicable parts of the DVSA, VISTA program policy, and the sponsor's Memorandum of Agreement, which incorporates their project application.

    § 2556.505 How do summer associates differ from other VISTAs?

    Summer associates differ from other VISTAs in the following ways:

    (a) Summer associates are not eligible to receive:

    (1) Health care through a health benefits program provided by CNCS;

    (2) Child care support through a child care program provided by CNCS;

    (3) Payment for settling-in expenses; or

    (4) Non-competitive eligibility in accordance with 5 CFR 315.605.

    (b) Absent extraordinary circumstances, summer associates are not eligible to receive:

    (1) Payment for travel expenses incurred for travel to or from the project site to which the summer associate is assigned; or

    (2) A baggage allowance for the costs of transporting personal effects to or from the project site to which the summer associate is assigned to serve.

    (c) CNCS may discharge a summer associate due to a deficiency, or deficiencies, in conduct or performance. Summer associates are not subject to subpart E of this part, or to the grievance procedures provided to VISTAs set forth in §§ 2556.345 through 2556.365.

    Subpart G—VISTA Leaders Authority:

    42 U.S.C. 4954(b).

    § 2556.600 How is a position for a leader established in a project, or in multiple projects within a contiguous geographic region?

    (a) At its discretion, CNCS may approve the establishment of a leader position based on the following factors:

    (1) The need for a leader in a project of a substantial size and with multiple VISTAs assigned to serve at that project, or the need for leader for multiple projects located within a contiguous geographic region.

    (2) The need for a leader to assist with the communication of VISTA policies and administrative procedures to VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.

    (3) The need for a leader to assist with the professional development of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.

    (4) The need for a leader to assist with the recruitment and preparation for the arrival of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.

    (5) The capacity of the VISTA supervisor to support and guide the leader.

    (b) A sponsor may request, in its project application, that CNCS establish a leader position in its project.

    § 2556.605 Who is eligible to apply to serve as a leader?

    An individual is eligible to apply to serve as a leader if he or she has successfully completed any of the following:

    (a) At least one year of service as a VISTA;

    (b) At least one full term of service as a full-time AmeriCorps State and National member;

    (c) At least one full term of service as a member of the AmeriCorps National Civilian Community Corps (NCCC); or

    (d) At least one traditional term of service as a Peace Corps Volunteer.

    § 2556.610 What is the application process to apply to become a leader?

    (a) Application package. An eligible individual must apply in writing to CNCS to become a leader. The sponsor's recommendation and related materials, described in paragraph (b) of this section, must be included with the individual's application to become a leader.

    (b) Sponsor recommendation. A sponsor where an individual is seeking to serve as a leader must recommend in writing to CNCS the individual to become a leader. Included with the recommendation must be an evaluation of the individual's performance while in previous service, a description of specific tasks, responsibilities, qualifications, and other relevant information that justifies the placement of the individual in a leader position, and if appropriate, the establishment of a leader position.

    (c) Selection. CNCS shall have sole authority to select a leader. The criteria for selection shall include consideration of the individual's application and the sponsor's recommendation described in paragraph (b) of this section.

    § 2556.615 Who reviews a leader application and who approves or disapproves a leader application?

    CNCS reviews the application package for the leader position, considers the recommendation of the sponsor, and approves or disapproves the individual to serve as a leader.

    § 2556.620 How does a leader differ from other VISTAs?

    The application process to apply to become a leader, as described in § 2556.610, is separate and distinct from the application process to apply to enroll as a VISTA in the VISTA program:

    (a) A leader may receive a living allowance computed at a higher daily rate than other VISTAs, as authorized under section 105(a)(1)(B) of the DVSA.

    (b) A leader is subject to all the terms and conditions of service described in § 2556.625.

    § 2556.625 What are terms and conditions of service for a leader?

    Though not exhaustive, terms and conditions of service as a leader include:

    (a) A leader makes a full-time commitment to serve as a leader, without regard to regular working hours, for a minimum of one year.

    (b) To the maximum extent practicable, a leader shall live among and at the economic level of the low-income community served by the project and actively seek opportunities to engage with that low-income community.

    (c) A leader aids the communication of VISTA policies and administrative procedures to VISTAs.

    (d) A leader assists with the leadership development of VISTAs.

    (e) A leader is a resource in the development and delivery of training for VISTAs.

    (f) A leader may assist the sponsor with recruitment and preparation for the arrival of VISTAs.

    (g) A leader may advise a supervisor on potential problem areas and needs of VISTAs.

    (h) A leader aids VISTAs in the development of effective working relationships and understanding of VISTA program concepts.

    (i) A leader may aid the supervisor and sponsor in directing or focusing the VISTA project to best address the community's needs.

    (j) A leader may serve as a collector of data for performance measures of the project and the VISTAs.

    (k) A leader is prohibited from supervising VISTAs. A leader is also prohibited from handling or managing, on behalf of the project, personnel-related matters affecting VISTAs. Personnel-related matters affecting VISTAs must be managed and handled by the project and in coordination with the appropriate CNCS State Office.

    Subpart H—Restrictions and Prohibitions on Political Activities and Lobbying Authority:

    42 U.S.C. 4954(a), 5043, and 5055(b).

    § 2556.700 Who is covered by this subpart?

    (a) All VISTAs, including leaders and summer associates, are subject to this subpart.

    (b) All employees of VISTA sponsors and subrecipients, whose salaries or other compensation are paid, in whole or in part, with VISTA grant assistance are subject to this subpart.

    (c) All VISTA sponsors and subrecipients are subject to this subpart.

    § 2556.705 What is prohibited political activity?

    For purposes of the regulations in this subpart, “prohibited political activity” means an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.

    § 2556.710 What political activities are VISTAs prohibited from engaging in?

    (a) A VISTA may not use his or her official authority or influence to interfere with or affect the result of an election.

    (b) A VISTA may not use his or her official authority or influence to coerce any individual to participate in political activity.

    (c) A VISTA may not use his or her official VISTA program title while participating in prohibited political activity.

    (d) A VISTA may not participate in prohibited political activities in the following circumstances:

    (1) While he or she is on duty;

    (2) While he or she is wearing an article of clothing, logo, insignia, or other similar item that identifies CNCS, the VISTA program, or one of CNCS's other national service programs;

    (3) While he or she is in any room or building occupied in the discharge of VISTA duties by an individual employed by the sponsor; and

    (4) While using a vehicle owned or leased by a sponsor or subrecipient, or while using a privately-owned vehicle in the discharge of VISTA duties.

    § 2556.715 What political activities may a VISTA participate in?

    (a) Provided that paragraph (b) of this section is fully adhered to, a VISTA may:

    (1) Express his or her opinion privately and publicly on political subjects;

    (2) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any other question or issue of similar character;

    (3) Participate in the nonpartisan activities of a civic, community, social, labor, or professional organization, or of a similar organization; and

    (4) Participate fully in public affairs, except as prohibited by other Federal law, in a manner which does not compromise his or her efficiency or integrity as a VISTA, or compromise the neutrality, efficiency, or integrity of CNCS or the VISTA program.

    (b) A VISTA may participate in political activities set forth in paragraph (a) of this section as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interfere with his or her provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    § 2556.720 May VISTAs participate in political organizations?

    (a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:

    (1) Be a member of a political party or other political group and participate in its activities;

    (2) Serve as an officer of a political party or other political group, a member of a national, State, or local committee of a political party, an officer or member of a committee of a political group, or be a candidate for any of these positions;

    (3) Attend and participate fully in the business of nominating caucuses of political parties;

    (4) Organize or reorganize a political party organization or political group;

    (5) Participate in a political convention, rally, or other political gathering; and

    (6) Serve as a delegate, alternate, or proxy to a political party convention.

    (b) A VISTA may participate in a political organization as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interfere with the provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    § 2556.725 May VISTAs participate in political campaigns?

    (a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:

    (1) Display pictures, signs, stickers, badges, or buttons associated with political parties, candidates for partisan political office, or partisan political groups, as long as these items are displayed in accordance with the prohibitions set forth in § 2556.710;

    (2) Initiate or circulate a nominating petition for a candidate for partisan political office;

    (3) Canvass for votes in support of or in opposition to a partisan political candidate or a candidate for political party office;

    (4) Endorse or oppose a partisan political candidate or a candidate for political party office in a political advertisement, broadcast, campaign literature, or similar material; and

    (5) Address a convention caucus, rally, or similar gathering of a political party or political group in support of or in opposition to a partisan political candidate or a candidate for political party office.

    (b) A VISTA may participate in a political campaign as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interfere with the provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    § 2556.730 May VISTAs participate in elections?

    (a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:

    (1) Register and vote in any election;

    (2) Act as recorder, watcher, challenger, or similar officer at polling places;

    (3) Serve as an election judge or clerk, or in a similar position; and

    (4) Drive voters to polling places for a partisan political candidate, partisan political group, or political party.

    (5) Participate in voter registration activities.

    (b) A VISTA may participate in elections as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interfere with the provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    § 2556.735 May a VISTA be a candidate for public office?

    (a) Except as provided in paragraph (c) of this section, no VISTA may run for the nomination to, or as a candidate for election to, partisan political office.

    (b) In accordance with the prohibitions set forth in § 2556.710, a VISTA may participate in elections as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interference with the provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    (c) Provided that paragraphs (a) and (b) of this section are adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:

    (1) Run as an independent candidate in a partisan election in designated U.S. municipalities and political subdivisions as set forth at 5 CFR part 733; and

    (2) Run as a candidate in a non-partisan election.

    § 2556.740 May VISTAs participate in political fundraising activities?

    (a) Provided that paragraphs (b) through (d) of this section are fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:

    (1) Make a political contribution to a political party, political group, campaign committee of a candidate for public office in a partisan election;

    (2) Attend a political fundraiser; and

    (3) Solicit, accept, or receive uncompensated volunteer services for a political campaign from any individual.

    (b) A VISTA may participate in fundraising activities as long as such participation:

    (1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;

    (2) Does not interfere with the provision of service in the VISTA program;

    (3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;

    (4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;

    (5) Is not conducted during scheduled VISTA service hours; and

    (6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.

    (c) A VISTA may not knowingly:

    (1) Personally solicit, accept, or receive a political contribution from another individual;

    (2) Personally solicit political contributions in a speech or keynote address given at a fundraiser;

    (3) Allow his or her perceived or actual affiliation with the VISTA program, or his or her official title as a VISTA, to be used in connection with fundraising activities; or

    (4) Solicit, accept, or receive uncompensated individual volunteer services from a subordinate, (e.g., a leader may not solicit, accept or receive a political contribution from a VISTA).

    (d) Except for VISTAs who reside in municipalities or political subdivisions designated under 5 CFR part 733, no VISTA may accept or receive a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party.

    § 2556.745 Are VISTAs prohibited from soliciting or discouraging the political participation of certain individuals?

    (a) A VISTA may not knowingly solicit or discourage the participation in any political activity of any individual who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before CNCS or the VISTA program.

    (b) A VISTA may not knowingly solicit or discourage the participation of any political activity of any individual who is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by or through CNCS or the VISTA program.

    § 2556.750 What restrictions and prohibitions are VISTAs subject to who campaign for a spouse or family member?

    A VISTA who is the spouse or family member of either a candidate for partisan political office, candidate for political party office, or candidate for public office in a nonpartisan election, is subject to the same restrictions and prohibitions as other VISTAs, as set forth in § 2556.725.

    § 2556.755 May VISTAs participate in lawful demonstrations?

    In accordance with the prohibitions set forth in § 2556.710, VISTAs may participate in lawful demonstrations, political rallies, and other political meetings, so long as such participation is in conformance with all of the following:

    (a) Occurs only while on authorized leave or while otherwise off duty;

    (b) Does not include attempting to represent, or representing the views of VISTAs or the VISTA program on any public issue;

    (c) Could not be reasonably understood by the community as being identified with the VISTA program, the project, or other elements of VISTA service; and

    (d) Does not interfere with the discharge of VISTA duties.

    § 2556.760 May a sponsor and subrecipient approve the participation of a VISTA in a demonstration or other political meeting?

    (a) No VISTA sponsor or subrecipient shall approve a VISTA to be involved in planning, initiating, participating in, or otherwise aiding or assisting in any demonstration or other political meeting.

    (b) If a VISTA sponsor or subrecipient which, subsequent to the receipt of any CNCS financial assistance, including the assignment of VISTAs, approves the participation of a VISTA in a demonstration or other political meeting, shall be subject to procedures related to the suspension or termination of such assistance, as provided in subpart B of this part, §§ 2556.135 through 2556.140.

    § 2556.765 What disciplinary actions are VISTAs subject to for violating restrictions or prohibitions on political activities?

    Violations by a VISTA of any of the prohibitions or restrictions set forth in this subpart may warrant termination for cause, in accordance with proceedings set forth at §§ 2556.420, 2556.425, and 2556.430.

    § 2556.770 What are the requirements of VISTA sponsors and subrecipients regarding political activities?

    (a) All sponsors and subrecipients are required to:

    (1) Understand the restrictions and prohibitions on the political activities of VISTAs, as set forth in this subpart;

    (2) Provide training to VISTAs on all applicable restrictions and prohibitions on political activities, as set forth in this subpart, and use training materials that are consistent with these restrictions and prohibitions;

    (3) Monitor on a continuing basis the activity of VISTAs for compliance with this subpart; and

    (4) Report all violations, or questionable situations, immediately to the appropriate CNCS State Office.

    (b) Failure of a sponsor to comply with the requirements of this subpart, or a violation of the requirements contained in this subpart by the sponsor or subrecipient, sponsor or subrecipient's covered employees, agents, or VISTAs, may be deemed to be a material failure to comply with terms or conditions of the VISTA program. In such a case, the sponsor shall be subject to procedures related to the denial or reduction, or suspension or termination, of such assistance, as provided in §§ 2556.125, 2556.130, and 2556.140.

    § 2556.775 What prohibitions and restrictions on political activity apply to employees of VISTA sponsors and subrecipients?

    All employees of VISTA sponsors and subrecipients, whose salaries or other compensation are paid, in whole or in part, with VISTA funds are subject to all applicable prohibitions and restrictions described in this subpart in the following circumstances:

    (a) Whenever they are engaged in an activity that is supported by CNCS or VISTA funds or assistance; and

    (b) Whenever they identify themselves as acting in their capacity as an official of a VISTA project that receives CNCS or VISTA funds or assistance, or could reasonably be perceived by others as acting in such a capacity.

    § 2556.780 What prohibitions on lobbying activities apply to VISTA sponsors and subrecipients?

    (a) No VISTA sponsor or subrecipient shall assign a VISTA to perform service or engage in activities related to influencing the passage or defeat of legislation or proposals by initiative petition.

    (b) No VISTA sponsor or subrecipient shall use any CNCS financial assistance, such as VISTA funds or the services of a VISTA, for any activity related to influencing the passage or defeat of legislation or proposals by initiative petition.

    Dated: October 6, 2015. Jeremy Joseph, General Counsel.
    [FR Doc. 2015-25790 Filed 10-19-15; 8:45 am] BILLING CODE 6050-28-P
    80 202 Tuesday, October 20, 2015 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3835; Airspace Docket No. 14-ASW-13] RIN 2120-AA66 Proposed Amendment of Air Traffic Service (ATS) Routes; Southwest Oklahoma AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify 3 VHF Omnidirectional Range (VOR) Federal airways (V-140, V-272, and V-440) in the vicinity of Sayre, OK. The FAA is proposing this action due to the scheduled decommissioning of the Sayre, OK (SYO), VOR/Tactical Air Navigation (VORTAC) facility that provides navigation guidance for a portion of the airways listed. This action would enhance the route structure within the National Airspace System.

    DATES:

    Comments must be received on or before December 4, 2015.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2015-3835 and Airspace Docket No. 14-ASW-13 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

    This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the route structure as required to preserve the safe and efficient flow of air traffic in the vicinity of Sayre, OK.

    Comments Invited

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

    Communications should identify both docket numbers (FAA Docket No. FAA-2015-3835 and Airspace Docket No. 14-ASW-13) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-3835 and Airspace Docket No. 14-ASW-13.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRM's

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

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, Operations Support Group, Federal Aviation Administration, 2601 Meacham Blvd., Fort Worth, TX 76137.

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

    Availability and Summary of Documents for Incorporation by Reference

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

    Background

    The SYO VORTAC facility is scheduled to be decommissioned. With the decommissioning of the SYO VORTAC, the remaining ground-based navigation aid (NAVAID) coverage is insufficient to enable the continuity of the affected airways. The proposed modifications to VOR Federal airways V-140, V-272, and V-440 would result in slightly realigned routes through the Sayre, OK, area by using the Burns Flat, OK (BFV), VORTAC located approximately 22 nautical miles southeast of the SYO VORTAC to replace it. Route segments supported by other NAVAIDs would remain unchanged.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airways V-140, V-272, and V-440 in the vicinity of Sayre, OK. These proposed modifications are necessary due to the scheduled decommissioning of the SYO VORTAC. The proposed route modifications are outlined below.

    V-140: V-140 extends from the Panhandle, TX (PNH), VORTAC to the Casanova, VA (CSN), VORTAC. The route segment between the PNH VORTAC and Kingfisher, OK (IFI), VORTAC would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.

    V-272: V-272 extends from the Dalhart, TX (DHT), VORTAC to the Fort Smith, AR (FSM), VORTAC. The route segment between the Borger, TX (BGD), VORTAC and Will Rogers, OK (IRW), VORTAC would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.

    V-440: V-440 extends from the PNH VORTAC to the IRW VORTAC. The intersecting NAVAID radial information used to describe the BRISC and CARFF fixes would be updated using BFV VORTAC radials instead of SYO VORTAC radials, and the route segment between the BRISC and CARFF fixes would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.

    All radials in the route descriptions below that do not reflect True (T)/Magnetic (M) degree radial information are unchanged and stated in True degrees.

    VOR Federal airways are published in paragraph 6010 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6010(a) Domestic VOR Federal Airways. V-140 [Amended]

    From Panhandle, TX; Burns Flat, OK; Kingfisher, OK; INT Kingfisher 072° and Tulsa, OK, 261° radials; Tulsa; Razorback, AR; Harrison, AR; Walnut Ridge, AR; Dyersburg, TN; Nashville, TN; Livingston, TN; London, KY; Hazard, KY; Bluefield, WV; INT Bluefield 071° and Montebello, VA, 250° radials; Montebello; to Casanova, VA.

    V-272 [Amended]

    From Dalhart, TX; Borger, TX; Burns Flat, OK; Will Rogers, OK; INT Will Rogers 113° and McAlester, OK, 286° radials; McAlester; to Fort Smith, AR.

    V-440 [Amended]

    From Panhandle, TX; INT Panhandle 070°(T)/062°(M) and Burns Flat, OK, 288°(T)/280°(M) radials; Burns Flat; INT Burns Flat 103°(T)/095°(M) and Will Rogers, OK, 248°(T)/241°(M) radials; to Will Rogers.

    Issued in Washington, DC, on October 8, 2015. Gary A. Norek, Manager, Airspace Policy Group.
    [FR Doc. 2015-26498 Filed 10-19-15; 8:45 am] BILLING CODE 4910-13-P
    NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 14 CFR Part 1214 [Docket No: NASA-2015-0010] RIN 2700-AD98 Space Flight AGENCY:

    National Aeronautics and Space Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The National Aeronautics and Space Administration (NASA) is proposing to amend its regulations that govern International Space Station crewmembers, mementos aboard Orion and Space Launch System (SLS) missions, the authority of the NASA Commander, and removes the Agency's policy on space flight participation and other policies that were relevant to the Space Shuttle. The revisions to this rule are part of NASA's retrospective plan under Executive Order (E.O.) 13563 completed in August 2011. NASA's full plan can be accessed on the Agency's open Government Web site at http://www.nasa.gov/open/.

    DATES:

    Submit comments on or before November 19, 2015.

    ADDRESSES:

    Comments must be identified with RIN 2700-AD98 and may be sent to NASA via the Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Please note that NASA will post all comments on the Internet without change, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    Craig Salvas at (202)-358-2330, [email protected].

    SUPPLEMENTARY INFORMATION: Background

    The Space Shuttle Program formally commenced in 1972. After a total of 135 flights, the last of which occurred in July 2011, the Space Shuttle was officially retired after 30 years of operation. During this period, the fleet and its crews carried out a large and varied number of tasks to meet the goals and objectives of the Nation's space program. These included the launch of large interplanetary probes, the performance of scientific experiments under microgravity conditions, the on-orbit servicing of the Hubble Space Telescope, and the assembly and resupply of the International Space Station. Functions previously performed by the Space Shuttle will now be done by many different spacecraft currently flying or in development, including vehicles owned by both the Government and the private sector.

    NASA is currently developing a new human-rated spacecraft, the Orion, and launch system, the Space Launch System (SLS). With the end of the Space Shuttle Program, many sections of this rule are no longer relevant and will be deleted. However, sections which have current or future application will be maintained and updated or amended as required.

    Significant elements of Part 1214, in its current form, govern the use and operation of the Space Shuttle and cover a diverse number of areas including requirements for reimbursement for Space Shuttle services to civil U.S. Government and foreign users, the flight of Payload Specialists and Space Flight Participants on Space Shuttle missions, reimbursement terms, and conditions for use of the Spacelab Module. Also covered in Part 1214 are the rules for the NASA Astronaut Candidate Recruitment and Selection Program, the Code of Conduct for the International Space Station Crew, and the Authority of the Space Shuttle Commander.

    The intent of these proposed amendments is to repeal those portions of the regulation that, with the ending of the Space Shuttle Program, are no longer relevant. Sections that remain in effect will be amended because they are outdated. Other sections that are applicable to the Orion and SLS will also be amended.

    Statutory Authority

    Section 1214 is established under the National Aeronautics and Space Act (Space Act) (51 U.S.C. 20101, et seq.).

    Regulatory Analysis Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulation 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, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated as “not significant” under section 3(f) of Executive Order 12866.

    Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to prepare an initial regulatory flexibility analysis to be published at the time the proposed rule is published. This requirement does not apply if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 603). This rule updates these sections of the CFR to align with Federal guidelines and does not have a significant economic impact on a substantial number of small entities.

    Review Under the Paperwork Reduction Act

    This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    Review Under Executive Order of 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any substantial direct effects on state and local governments within the meaning of the Executive Order. Therefore, no Federalism assessment is required.

    List of Subjects in 14 CFR Part 1214

    Government employees, Government procurement, Security measures, Space transportation and exploration.

    For the reason stated in the preamble, NASA is proposing to amend 14 CFR part 1214 as follows:

    PART 1214—SPACE FLIGHT 1. The authority citation for part 1214 is revised to read as follows: Authority:

    Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101, et seq.).

    Subpart 1214.1—[Removed and Reserved] 2. Remove and reserve subpart 1214.1, consisting of §§ 1214.100 through 1214.119. Subpart 1214.2—[Removed and Reserved] 3. Remove and reserve subpart 1214.2, consisting of §§ 1214.200 through 1214.207 and Appendices A and B. Subpart 1214.3—[Removed and Reserved] 4. Remove and reserve subpart 1214.3, consisting of §§ 1214.300 through 1214.306. Subpart 1214.4—International Space Station Crew 5. The authority citation for subpart 1214.4 is revised to read as follows: Authority:

    Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101, et seq.).

    6. Revise Subpart 1214.6 to read as as follows: Subpart 1214.6 Mementos aboard NASA missions Sec. 1214.600 Scope. 1214.601 Definitions. 1214.602 Policy. 1214.603 Official Flight Kit. 1214.604 Personal Preference Kit. 1214.605 Reserved. 1214.606 Reserved. 1214.607 Media and public inquiries. 1214.608 Reserved. 1214.609 Loss or theft. 1214.610 Violations. Authority:

    Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101, et seq.).

    § 1214.600 Scope.

    This subpart establishes policy and procedures for carrying mementos on the NASA missions, with the exception of mementos and personal effects carried onboard the International Space Station (ISS).

    § 1214.601 Definitions.

    Mementos. Flags, patches, insignia, minor graphics, and similar items of little commercial value, especially suited for display by the individuals or groups to whom they have been presented.

    § 1214.602 Policy.

    Premise. Mementos are welcome aboard NASA missions. However, they are flown as a courtesy—not as an entitlement. The NASA Administrator, or his/her designee, will approve all requests for flying mementos.

    § 1214.603 Official Flight Kit.

    (a) Purpose. The Official Flight Kit (OFK) on a particular mission allows NASA, and other domestic and friendly foreign countries organizations with NASA approval, to utilize mementos as awards and commendations or preserve them in museums or archives. No personal items will be carried in the OFK.

    (b) Approval of Contents. At least 120 days prior to the scheduled launch of a particular mission, an authorized representative of each organization desiring mementos to be carried on a flight in the OFK must submit a letter or request describing the item(s) to be flown and the intended purpose or distribution. Letters should be directed to the Associate Administrator for Human Exploration and Operations, NASA Headquarters, Washington, DC 20546.

    § 1214.604 Personal Preference Kit.

    (a) Purpose. The Personal Preference Kit (PPK) enables persons on a particular mission to carry personal items for use as mementos. Only those individuals actually accompanying such flights may request authorization to carry personal items as mementos.

    (b) Approval of Content. At least 60 days prior to the scheduled launch of a particular mission, each person assigned to the flight who desires to carry items in a PPK must submit a proposed list of items and their recipients to the Associate Director, NASA Johnson Space Center. The Associate Director will review the proposed list of items and, if approved, submit the crew members' PPK lists through supervisory channels to the Associate Administrator for Human Exploration and Operations for approval. A signed copy of approval from the Associate Administrator for Human Exploration and Operations will be returned to the Director, NASA Johnson Space Center, for distribution.

    § § 1214.605, 1214.606 [Reserved]
    § 1214.607 Media and public inquiries.

    Information on mementos flown on a particular mission will be routinely released by the Associate Administrator of the Office of Communications to the media and to the public upon their request, but only after they have been approved for flight.

    § 1214.608 [Reserved]
    § 1214.609 Loss or Theft.

    (a) Liability. Neither NASA nor the U.S. Government will be liable for the loss or theft of, or damage to, items carried in OFKs or PPKs.

    (b) Report of Loss or Theft. Any person who learns that an item contained in an OFK or a PPK is missing shall immediately report the loss to the Johnson Space Center Security Office and the NASA Inspector General.

    § 1214.610 Violations.

    Any items carried in violation of the requirements of this subpart shall become property of the U.S. Government, subject to applicable Federal laws and regulations, and the violator may be subject to disciplinary action, including being permanently prohibited from use of, or if an individual, from flying aboard a NASA mission.

    Subpart 1214.7—The Authority of the NASA Commander 7. The authority citation for subpart 7 is revised to read as follows: Authority:

    Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101, et seq.)

    8. Revise the heading of subpart 1214.7 to read as set forth above. 9. Revise sections §§ 1214.700, 1214.701, and 1214.702 to read as follows:
    § 1214.700 Scope.

    This subpart establishes the authority of the NASA Commander of a NASA mission, excluding missions related to the ISS and activities licensed under Title 51 U.S.C. Chapter 509, to enforce order and discipline during a mission and to take whatever action in his/her judgment is reasonable and necessary for the protection, safety, and well-being of all personnel and on-board equipment, including the spacecraft and payloads. During the final launch countdown, following crew ingress, the NASA Commander has the authority to enforce order and discipline among all on-board personnel. During emergency situations prior to liftoff, the NASA Commander has the authority to take whatever action in his/her judgment is necessary for the protection or security, safety, and well-being of all personnel on board.

    § 1214.701 Definitions.

    (a) The flight crew consists of the NASA Commander, astronaut crew members, and [any] other persons aboard the spacecraft.

    (b) A mission is the period including the flight-phases from launch to landing on the surface of the Earth—a single round trip. (In the case of a forced landing, the NASA Commander's authority continues until a competent authority takes over the responsibility for the persons and property aboard).

    (c) The flight-phases consist of launch, in orbit/transit, extraterrestrial mission, deorbit, entry, and landing, and post-landing back on Earth.

    (d) A payload is a specific complement of instruments, space equipment, and support hardware/software carried into space to accomplish a scientific mission or discrete activity.

    § 1214.702 Authority and responsibility of the NASA Commander.

    (a) During all flight phases, the NASA Commander shall have the absolute authority to take whatever action is in his/her discretion necessary to:

    (1) Enhance order and discipline.

    (2) Provide for the safety and well-being of all personnel on board.

    (3) Provide for the protection of the spacecraft and payloads.

    The NASA Commander shall have authority, throughout the mission, to use any reasonable and necessary means, including the use of physical force, to achieve this end.

    (b) The authority of the NASA Commander extends to any and all personnel on board the spacecraft including Federal officers and employees and all other persons whether or not they are U.S. nationals.

    (c) The authority of the NASA Commander extends to all spaceflight elements, payloads, and activities originating with or defined to be a part of the NASA mission.

    (d) The NASA Commander may, when he/she deems such action to be necessary for the safety of the spacecraft and personnel on board, subject any of the personnel on board to such restraint as the circumstances require until such time as delivery of such individual or individuals to the proper authorities is possible.

    10. Amend paragraphs (a), (c) and (d) in § 1214.703 to read as follows:
    § 1214.703 Chain of command.

    (a) The NASA Commander is a trained NASA astronaut who has been designated to serve as commander on a NASA mission and who shall have the authority described in § 1214.702 of this part. Under normal flight conditions (other than emergencies or when otherwise designated) the NASA Commander is responsible to the Mission Flight Director.

    (c) Before each flight, the other flight crewmembers will be designated in the order in which they will assume the authority of the NASA Commander under this subpart in the event that the NASA Commander is not able to carry out his/her duties.

    (d) The determinations, if any, that a crewmember in the chain of command is not able to carry out his or her command duties and is, therefore, to be relieved of command, and that another crewmember in the chain of command is to succeed to the authority of the NASA Commander, will be made by the NASA Administrator or his/her designee.

    11. Revise § 1214.704 to read as follows:
    § 1214.704 Violations.

    (a) All personnel on board the NASA mission are subject to the authority of the NASA Commander and shall conform to his/her orders and direction as authorized by this subpart.

    (b) This regulation is a regulation within the meaning of 18 U.S.C. 799, and whoever willfully violates, attempts to violate, or conspires to violate any provision of this subpart or any order or direction issued under this subpart shall be subject to fines and imprisonment, as specified by law.

    Subpart 1214.8—[Removed and Reserved] 12. Remove and reserve subpart 1214.8, consisting §§ 1214.800 through 1214.813. Subpart 1214.17—[Removed and Reserved] 13. Remove and reserve subpart 1214.17, consisting of §§ 1214.1700 through 1214.1707. Nanette Jennings, Federal Register Liaison Officer.
    [FR Doc. 2015-26475 Filed 10-19-15; 8:45 am] BILLING CODE 7510-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket No. FDA-2012-N-1210] RIN 0910-AF22 Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Reopening of the Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Proposed rule; reopening of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing the reopening of the comment period for certain documents associated with the proposed rule to amend FDA's labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the Nutrition Facts and Supplement Facts labels to assist consumers in maintaining healthy dietary practices. We also are reopening the comment period for a supplemental proposed rule to revise the Nutrition Facts and Supplement Facts labels. We are taking this action due to technical difficulties at the Federal eRulemaking Portal.

    DATES:

    Submit either electronic or written comments on the supplemental proposed rule and related documents by October 23, 2015.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

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

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2012-N-1210 for this rulemaking. Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

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

    FOR FURTHER INFORMATION CONTACT:

    Philip L. Chao, Center for Food Safety and Applied Nutrition (HFS-24), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2112, email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

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

    More recently, in the Federal Register of September 10, 2015 (80 FR 54446), we issued a notice clarifying: (1) The consumer studies on the added sugars declaration and the alternative footnote statements in the supplemental proposal relate to topics on which we sought comment and (2) the consumer studies on the format published in a separate notice in July 2015 were included for comment, and were placed in the docket at that time. We also stated that, in response to requests for the raw data for each of these consumer studies that are relevant to the summary memoranda for the studies, we were making the raw data available for comment. We extended the comment period for the two consumer studies pertaining to the proposed changes to the Nutrition Facts label formats (originally scheduled to close on September 25, 2015) to October 13, 2015, to coincide with the end of the comment period for the supplemental proposed rule.

    However, on October 13 and 14, 2015, the Federal eRulemaking Portal, http://www.regulations.gov, experienced technical difficulties which sometimes prevented the electronic submission of comments. Therefore, we are reopening the comment period for the consumer studies and the supplemental proposal; the reopened comment period will close on October 23, 2015.

    Dated: October 15, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-26636 Filed 10-19-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter VI [Docket ID ED-2015-OPE-0103] Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings—Borrower Defenses AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Intent to establish negotiated rulemaking committee.

    SUMMARY:

    We announce our intention to establish a negotiated rulemaking committee to prepare proposed regulations for the Federal Student Aid programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA). The committee will include representatives of organizations or groups with interests that are significantly affected by the topics proposed for negotiations. We request nominations for individual negotiators who represent key stakeholder constituencies for the issues to be negotiated to serve on the committee, and we set a schedule for committee meetings.

    DATES:

    We must receive your nominations for negotiators to serve on the committee on or before November 19, 2015. The dates, times, and locations of the committee meetings are set out in the Schedule for Negotiations section in the SUPPLEMENTARY INFORMATION section.

    ADDRESSES:

    Please send your nominations for negotiators to Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8013, Washington, DC 20006. Telephone: (202) 502-7526 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For information about the content of this notice, including information about the negotiated rulemaking process or the nomination submission process, contact: Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8013, Washington, DC 20006. Telephone: (202) 502-7526 or by email: [email protected]

    For information about negotiated rulemaking in general, see The Negotiated Rulemaking Process for Title IV Regulations, Frequently Asked Questions at www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html.

    If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS) toll free at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    On August 20, 2015, we published a notice in the Federal Register (80 FR 50588) announcing our intent to establish a negotiated rulemaking committee under section 492 of the HEA to develop proposed regulations for determining which acts or omissions of an institution of higher education (“institution”) a borrower may assert as a defense to repayment of a loan made under the William D. Ford Federal Direct Loan (Federal Direct Loan) Program (“borrower defenses”) and the consequences of such borrower defenses for borrowers, institutions, and the Secretary. We also announced two public hearings at which interested parties could comment on the topic suggested by the U.S. Department of Education (Department) and suggest additional topics for consideration for action by the negotiated rulemaking committee. Those hearings were held on September 10, 2015, in Washington, DC, and on September 16, 2015, in San Francisco, California. We invited parties to comment and submit topics for consideration in writing as well. Transcripts from the public hearings are available at www2.ed.gov/policy/highered/reg/hearulemaking/2016/index.html. Written comments submitted in response to the August 20, 2015 notice may be viewed through the Federal eRulemaking Portal at www.regulations.gov. Instructions for finding comments are available on the site under “How to Use Regulations.gov” in the Help section. Individuals can enter docket ID ED-2015-OPE-0103 in the search box to locate the appropriate docket.

    Regulatory Issues

    After considering the information received at the regional hearings and the written comments, we have decided to establish a negotiating committee to address for loans made under the William D. Ford Federal Direct Loan (Federal Direct Loan) Program: (1) The procedures to be used for a borrower to establish a defense to repayment; (2) the criteria that the Department will use to identify acts or omissions of an institution that constitute defenses to repayment of Federal Direct Loans, including the creation of a Federal standard; (3) the standards and procedures that the Department will use to determine the liability of the institution for amounts based on borrower defenses; (4) the effect of borrower defenses on institutional capability assessments, and (5) other loan discharges. In addition, the committee may also consider if and how these issues will affect the Federal Family Education Loan (FFEL) Program.

    These topics are tentative. Topics may be added or removed as the process continues.

    We intend to select negotiators for the committee who represent the interests significantly affected by the topics proposed for negotiations. In so doing, we will follow the requirement in section 492(b)(1) of the HEA that the individuals selected must have demonstrated expertise or experience in the relevant topics proposed for negotiations. We will also select individual negotiators who reflect the diversity among program participants, in accordance with section 492(b)(1) of the HEA. Our goal is to establish a committee that will allow significantly affected parties to be represented while keeping the committee size manageable.

    We generally select a primary and alternate negotiator for each constituency represented on the committee. The primary negotiator participates for the purpose of determining consensus. The alternate participates for the purpose of determining consensus in the absence of the primary. Either the primary or the alternate may speak during the negotiations.

    The committee may create subgroups on particular topics that may involve individuals who are not members of the committee. Individuals who are not selected as members of the committee will be able to observe the committee meetings, will have access to the individuals representing their constituencies, and may be able to participate in informal working groups on various issues between the meetings.

    Constituencies: We have identified the following constituencies as having interests that are significantly affected by the topics proposed for negotiations. The Department plans to seat as negotiators individuals from organizations or groups representing these constituencies:

    • Students/borrowers.

    • Legal assistance organizations that represent students/borrowers.

    • Consumer advocacy organizations.

    • Groups representing U.S. military servicemember or veteran Federal loan borrowers.

    • Financial aid administrators at postsecondary institutions.

    • State attorneys general and other appropriate State officials.

    • State higher education executive officers.

    • Institutions of higher education eligible to receive Federal assistance under title III, parts A, B, and F, and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, Predominantly Black Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA.

    • Two-year public institutions of higher education.

    • Four-year public institutions of higher education.

    • Private, nonprofit institutions of higher education.

    • Private, for-profit institutions of higher education.

    • FFEL Program lenders and loan servicers.

    • FFEL Program guaranty agencies and guaranty agency servicers (including collection agencies).

    The goal of the committee is to develop proposed regulations that reflect a final consensus of the committee. Consensus means that there is no dissent by any member of the negotiating committee, including the committee member representing the Department. An individual selected as a negotiator will be expected to represent the interests of his or her organization or group and participate in the negotiations in a manner consistent with the goal of developing proposed regulations on which the committee will reach consensus. If consensus is reached, all members of the organization or group represented by a negotiator are bound by the consensus and are prohibited from commenting negatively on the resulting proposed regulations. The Department will not consider any such negative comments on the proposed regulations that are submitted by members of such an organization or group.

    Nominations: Nominations should include:

    • The name of the nominee, the organization or group the nominee represents, and a description of the interests that the nominee represents.

    • Evidence of the nominee's expertise or experience in the topics proposed for negotiations.

    • Evidence of support from individuals or groups within the constituency that the nominee will represent.

    • The nominee's commitment that he or she will actively participate in good faith in the development of the proposed regulations.

    • The nominee's contact information, including address, phone number, and email address.

    For a better understanding of the negotiated rulemaking process, nominees should review The Negotiated Rulemaking Process for Title IV Regulations, Frequently Asked Questions at www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html prior to committing to serve as a negotiator.

    Nominees will be notified whether or not they have been selected as negotiators as soon as the Department's review process is completed.

    Schedule for Negotiations

    The committee will meet for three sessions on the following dates:

    Session 1: January 12-14, 2016 Session 2: February 17-19, 2016 Session 3: March 16-18, 2016

    Sessions will run from 9 a.m. to 5 p.m.

    The January and February committee meetings will be held at the U.S. Department of Education at: 1990 K Street NW., Eighth Floor Conference Center, Washington, DC 20006.

    The March committee meetings will be held at: Union Center Plaza (UCP) Learning Center, 830 First Street NE., Lobby Level, Washington, DC 20002.

    The meetings are open to the public.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8013, Washington, DC 20006. Telephone: (202) 502-7526 or by email: [email protected]

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Delegation of Authority: The Secretary of Education has delegated authority to Jamienne S. Studley, Deputy Under Secretary, to perform the functions and duties of the Assistant Secretary for Postsecondary Education.

    Program Authority:

    20 U.S.C. 1098a.

    Dated: October 15, 2015. Jamienne S. Studley, Deputy Under Secretary.
    [FR Doc. 2015-26626 Filed 10-19-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AP37 Removing Net Worth Requirement From Health Care Enrollment AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    This rulemaking proposes to remove the regulatory provision regarding consideration by the Department of Veterans Affairs (VA) of the net worth of a veteran's assets as a factor in determining the veteran's eligibility for lower-cost VA health care. Prior to January 1, 2015, VA considered both the net worth of a veteran's assets and the veteran's annual income when determining a veteran's eligibility. Because of that, certain veterans who would have been eligible for VA health care based on their annual income alone were ineligible for care because the net value of their assets was too high, or they were placed in a less favorable eligibility category. Reporting asset information imposed a significant paperwork burden on veterans, and VA dedicated significant administrative resources to verifying reported information. VA changed its policy to improve access to health care to lower-income veterans and remove the reporting burden from veterans by discontinuing collection of asset information. This rulemaking would amend the regulation to remove the reference to VA's discretionary statutory authority to consider net worth.

    DATES:

    Comment Date: Comments must be received on or before December 21, 2015.

    ADDRESSES:

    Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP37—Removing Net Worth Requirement from Health Care Enrollment.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Kristin J. Cunningham, Director, Business Policy, Chief Business Office, (10NB6), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 382-2508. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    This rulemaking proposes to amend VA's regulations governing enrollment in the VA health care system by removing the regulatory provision restating VA's discretionary authority to consider the net worth of a veteran's assets when determining eligibility for lower-cost health care.

    Pursuant to 38 U.S.C. 1705, VA has established a health care enrollment system with implementing regulations at 38 CFR 17.36. When veterans apply for health care benefits, VA assigns a priority category that reflects the basis for that veteran's eligibility, such as whether the veteran has been rated as having a service-connected disability or would be unable to defray the costs of necessary expenses because of low income. The veteran is placed in the highest priority category possible. These categories are described in § 17.36(b). Priority categories are used by VA to determine which veterans are eligible to enroll in the VA health care system, which VA does on an annual basis, in accordance with § 17.36(c). The priority category is also used to determine the amount of copayments veterans must pay to receive VA medical benefits. Veterans who are not eligible for enrollment in priority categories 1 through 4 but who are unable to defray the expenses of necessary care under 38 U.S.C. 1722(a) are placed in priority category 5. 38 CFR 17.36(b)(5). This rulemaking would affect a regulatory provision related to that category. Veterans are considered to be unable to defray the costs of necessary care if they have a low annual income, qualify for VA pension benefits, or meet other criteria under 38 U.S.C. 1722(a) and 38 CFR 17.47(d). VA has the authority to use net worth asset values to determine whether a veteran is unable to defray the cost of care at 38 U.S.C. 1722(d)(1), but this authority is not mandatory; i.e., VA is not required to consider the value of the estate of a veteran for this purpose. 38 U.S.C. 1722(d)(1) (“Notwithstanding the attributable income of a veteran,” VA may determine that such veteran is not eligible “if the corpus of the estate of the veteran is such that under all the circumstances it is reasonable that some part of the corpus of the estate of the veteran be consumed for the veteran's maintenance”).

    In 2013, VA informed the public of its intent to discontinue annual financial assessment reporting by veterans. 78 FR 64065 (Oct. 25, 2013), 78 FR 79564 (Dec. 30, 2013). VA notified the public that it would no longer request annual financial assessments from veterans enrolled in income-based priority categories, and would only request financial assessments for the initial health care enrollment process. Because we received no adverse responses to those notices and for the reasons that follow, as VA announced in March 2015, VA used its discretion under 38 U.S.C. 1722(d)(1) to cease consideration of the net worth of veterans' assets to determine whether they are able to defray the expenses of necessary care and qualify for inclusion in priority category 5, effective January 1, 2015. To avoid potential confusion, this rulemaking would remove the regulatory provision referencing VA's discretionary authority to consider net worth for purposes of priority category 5.

    By eliminating consideration of the net worth of a veteran's assets for purposes of health care enrollment, more veterans would qualify for VA health care in a higher priority category, improving access and affordability of health care for many lower-income veterans. VA estimates that in the first year of implementation of this policy, 53,000 veterans would be moved to category 5 from a lower priority category and would be able to make lower copayments for VA care. Over five years, VA expects that 135,000 veterans who previously were ineligible would be able to enroll in the VA health care system because of this change. This change also reduces administrative burdens for veterans and VA. The burden on veterans to supply asset information to VA on an annual basis was considerable. In contrast, the burden is much lower for veterans to provide only an initial report of annual income during the enrollment process and future verification only in those cases where VA identifies a change to the veteran's income that would result in a change to the veteran's priority group status. In past years, VA had expended significant resources on verifying the reported figures because asset values are subjective and difficult to verify. Through established practices with the Internal Revenue Service and Social Security Administration, VA can verify veterans' reported annual income far more efficiently than reported assets. Therefore, this policy has eliminated the significant burden on veterans to report the worth of their assets, and also eliminated the need for VA to use resources to verify that information.

    In light of the preceding discussion, we propose to remove § 17.47(d)(5) in its entirety and renumber current § 17.47(d)(6) as § 17.47(d)(5). Current paragraph (d)(5) restates VA's discretionary statutory authority to use the value of a veteran's estate to determine whether he is able to defray the costs of care. By removing the regulatory restatement of VA's discretionary statutory authority to consider a veteran's net worth, VA removes language in the regulation that could be perceived as inconsistent with the policy change, which is favorable to veterans.

    Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this proposed rulemaking, represents the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with this rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.

    Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

    Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 9. 2015, for publication.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.

    Dated: October 15, 2015, William F. Russo, Director, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as follows:

    PART 17—MEDICAL 1. The authority citation for part 17 continues to read as follows: Authority:

    38 U.S.C. 501, and as noted in specific sections.

    § 17.47 [Amended]
    2. Amend § 17.47 by removing paragraph (d)(5) and redesignating paragraph (d)(6) as new paragraph (d)(5).
    [FR Doc. 2015-26606 Filed 10-19-15; 8:45 am] BILLING CODE 8320-01-P
    POSTAL REGULATORY COMMISSION 39 CFR Part 3050 [Docket No. RM2016-1; Order No. 2752] Periodic Reporting AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Commission is noticing a recent Postal Service filing requesting that the Commission initiate an informal rulemaking proceeding to consider a proposed change to analytical principles relating to periodic reports (Proposal Eleven). This notice informs the public of the filing, invites public comment, and takes other administrative steps.

    DATES:

    Comments are due: November 24, 2015. Reply Comments are due: December 7, 2015.

    ADDRESSES:

    Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6820.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. Summary of Proposal III. Initial Commission Action IV. Ordering Paragraphs I. Introduction

    On October 7, 2015, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate an informal rulemaking proceeding to consider a proposed change in analytical principles relating to periodic reports.1 A description of Proposal Eleven is attached to the Petition. Id. at 1. The Petition seeks a change in the statistical point and variance estimation methodology for the Origin-Destination Information System—revenue, pieces, and weight (ODIS-RPW) system 2 estimates used in the “Revenue, Pieces and Weight By Class and Special Services (RPW) report relating to letter and card mailpieces that will be sampled digitally.” Petition at 3.

    1 Petition of the United States Postal Service Requesting Initiation of a Proceeding to Consider a Proposed Change in Analytical Principles (Proposal Eleven), October 7, 2015 (Petition).

    2 “The ODIS-RPW system is a probability-based destinating mail sampling system used to support the Postal Service's many and varied business needs for mail revenue and volume information. ODIS-RPW primarily supplies official RPW estimates of revenue, volume and weight for single-piece stamped and metered indicia mail.” Petition at 4.

    II. Summary of Proposal

    Under Proposal Eleven, beginning Q2 FY2016 (January 1, 2016), the Postal Service seeks to replace the direct expansion estimator for the population of digitally sampled First-Class letter and card mail,3 within ODIS-RPW, with a ratio estimator that utilizes national End-of-Run machine counts. Petition at 1-2. “The digital letter mail estimates utilizing the ratio estimator applied to the digital letter mail sampling frame would be combined with direct expansion estimates from the non-digital sampling frame.” Id. at 2. The Postal Service contends the proposed ratio estimator for the letter mail digital sampling frame mathematically outperforms the direct expansion estimator for First-Class Mail single-piece volume and revenue. Id.

    3 Docket No. RM2015-11, Order on Analytical Principles Used in Periodic Reporting (Proposal Three) September 30, 2015 (Order No. 2739).

    The Postal Service plans to implement the change described in Proposal Eleven on January 1, 2016. Id. at 3. The Postal Service asserts that the proposed estimation methodology of the ratio estimator is an improvement over the direct expansion estimator and will improve the product estimates used for RPW by reducing bias and significantly lowering the calculated coefficient of variation for the same sample size. Id. The Postal Service states that “[t]he only significant category affected is First-Class Mail single piece letters and cards.” Id. at 4.

    III. Initial Commission Action

    The Commission establishes Docket No. RM2016-1 for consideration of matters raised by the Petition. Additional information concerning the Petition may be accessed via the Commission's Web site at http://www.prc.gov. Interested persons may submit comments on the Petition and Proposal Eleven no later than November 24, 2015. Reply comments are due no later than December 7, 2015. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is designated as an officer of the Commission to represent the interests of the general public (Public Representative) in this proceeding.

    IV. Ordering Paragraphs

    It is ordered:

    1. The Commission establishes Docket No. RM2016-1 for consideration of the matters raised by the Petition of the United States Postal Service Requesting Initiation of a Proceeding to Consider a Proposed Change in Analytical Principles (Proposal Eleven), filed October 7, 2015.

    2. Comments are due no later than November 24, 2015. Reply comments are due no later than December 7, 2015.

    3. Pursuant to 39 U.S.C. 505, the Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.

    4. The Secretary shall arrange for publication of this order in the Federal Register.

    By the Commission.

    Ruth Ann Abrams, Acting Secretary.
    [FR Doc. 2015-26549 Filed 10-19-15; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2014-0657; FRL-9935-62-Region 5] Air Plan Approval; Michigan; 2006 PM2.5 and 2008 Lead NAAQS State Board Infrastructure SIP Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of state implementation plan submissions from Michigan regarding state board requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM2.5) and 2008 lead National Ambient Air Quality Standards. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    Comments must be received on or before November 19, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2014-0657, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (312) 408-2279.

    4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, we will withdraw the direct final rule and will address all public comments received in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

    Dated: October 5, 2015. Susan Hedman, Regional Administrator, Region 5.
    [FR Doc. 2015-26310 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2013-0614; FRL-9935-52-Region 6] Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the Albuquerque/Bernalillo County, New Mexico State Implementation Plan for state board composition and conflict of interest provisions. These revisions add administrative updates and clarifying changes to the state board and conflict of interest provisions in the city and county ordinances for the Albuquerque/Bernalillo County Air Quality Control Board. The EPA is proposing to approve these revisions pursuant to sections 110 and 128 of the Clean Air Act (CAA).

    DATES:

    Written comments should be received on or before November 18, 2015.

    ADDRESSES:

    Comments may be mailed to Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Walser, (214) 665-7128, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    We are also proposing to approve a ministerial change to the Code of Federal Regulations (CFR) at 40 CFR 52.1620(e). The entry titled “City of Albuquerque request for redesignation” was mistakenly placed in the first table of 40 CFR 52.1620(e) under the heading “EPA Approved city of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions” and belongs in the second table of 40 CFR 52.1620(e) under the heading “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP.”

    For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    Dated: September 30, 2015. Ron Curry, Regional Administrator, Region 6.
    [FR Doc. 2015-26303 Filed 10-19-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 414 [CMS-3321-NC2] Medicare Program; Request for Information Regarding Implementation of the Merit Based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Request for information; extension of comment period.

    SUMMARY:

    This document extends the comment period for the October 1, 2015 document entitled “Request for Information Regarding Implementation of the Merit-based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models” (80 FR 59102, referred to in this document as “the October 1 RFI”). The comment period for the October 1 RFI, which would have ended on November 2, 2015, is extended for an additional 15 days. This document also advises the public and stakeholders of CMS priorities for the information sought in the October 1 RFI, and suggests that commenters may choose to focus their attention and comments accordingly.

    DATES:

    The comment period for the October 1, 2015 RFI (80 FR 59102) is extended to November 17, 2015. To be assured consideration, written or electronic comments on the October 1, 2015 RFI must be received at one of the addresses provided below no later than November 17, 2015.

    ADDRESSES:

    In commenting on the October 1, 2015 RFI, please refer either to file code CMS-3321-NC and comment as indicated in that document (80 FR 59102) or refer to file code CMS-3321-NC2 and comment as provided here. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    You may submit comments in one of four ways (please choose only one of the ways listed):

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3321-NC2, P.O. Box 8016, Baltimore, MD 21244-8016.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3321-NC2, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses prior to the close of the comment period:

    a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.

    (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

    b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.

    Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

    FOR FURTHER INFORMATION CONTACT:

    Molly MacHarris, (410) 786-4461.

    Alison Falb, (410) 786-1169.

    SUPPLEMENTARY INFORMATION:

    On October 1, 2015, we published a request for information in the Federal Register (80 FR 59102) entitled, “Request for Information Regarding Implementation of the Merit-based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models” (referred to in this document as “the October 1 RFI”). Section 101 of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) repeals the Medicare sustainable growth rate (SGR) methodology for updates to the physician fee schedule (PFS) and replaces it with a new Merit-based Incentive Payment System (MIPS) for MIPS eligible professionals (MIPS EPs) under the PFS. Section 101 of the MACRA (Pub. L. 114-10, enacted April 16, 2015) sunsets payment adjustments under the current Physician Quality Reporting System (PQRS), the Value-Based Payment Modifier (VM), and the Electronic Health Records (EHR) Incentive Program. It also consolidates aspects of the PQRS, VM, and EHR Incentive Program into the new MIPS. Additionally, section 101 of the MACRA promotes the development of Alternative Payment Models (APMs) by providing incentive payments for certain eligible professionals (EPs) who participate in APMs, by exempting EPs from the MIPS if they are qualifying APM participants, and by encouraging the creation of physician-focused payment models (PFPMs). In the request for information, we seek public and stakeholder input to inform the implementation of these provisions.

    We have received inquiries from national organizations regarding the 30-day comment period we provided for the October 1 RFI. The organizations stated that they need additional time to respond as a result of the number and depth of questions posed in the October 1 RFI. Since we requested the public to comment on various aspects of MIPS and APMs, we believe that it is important to allow ample time for the public to prepare comments regarding the October 1 RFI. Therefore, we have decided to extend the comment period for an additional 15 days. This document announces the extension of the public comment period to November 17, 2015.

    While we continue to welcome comments on all questions asked in the October 1 RFI, we suggest that the public and stakeholders may choose to focus their attention on issues that are a higher priority for CMS. To assist commenters in considering and formulating their comments on the October 1 RFI, we identify the following sections and questions, which we have categorized in descending order of priority for CMS.

    • For Section II, Subsection A (The Merit-Based Incentive Program System (MIPS)) of the request for information, each component (sub-subsection) under Subsection A has been prioritized by the following categories, in which all questions listed in the October 1 RFI that are within each component correspond to the specified priority category.

    ○ Priority Category One:

    —Sub-Subsection 1 (MIPS EP Identifier and Exclusions) —Sub-Subsection 3 (Quality Performance Category) —Sub-Subsection 4 (Resource Use Performance Category) —Sub-Subsection 5 (Clinical Practice Improvement Activities Performance Category) —Sub-Subsection 6 (Meaningful Use of Certified EHR Technology Performance Category)

    ○ Priority Category Two:

    —Sub-Subsection 2 (Virtual Groups) —Sub-Subsection 8 (Development of Performance Standards) —Sub-Subsection 12 (Feedback Reports)

    ○ Priority Category Three:

    —Sub-Subsection 7 (Other Measures) —Sub-Subsection 9 (Flexibility in Weighting Performance Categories) —Sub-Subsection 10 (MIPS Composite Performance Score and Performance Threshold) —Sub-Subsection 11 (Public Reporting)

    • For Section II, Subsection B (Alternative Payment Models) of the October 1 RFI, the following questions have been prioritized.

    ○ Priority Category:

    —How should CMS define “services furnished under this part through an EAPM entity”? —What types of data and information can EPs submit to CMS for purposes of determining whether they meet the non-Medicare share of the Combination All-Payer and Medicare Payment Threshold, and how can they be securely shared with the federal government? —What criteria could the Secretary consider for determining comparability of state Medicaid medical home models to medical home models expanded under section 1115A(c) of the Act? —Which states' Medicaid medical home models might meet criteria comparable to medical homes expanded under section 1115A(c) of the Act? —How should CMS define “use” of certified EHR technology as defined in section 1848(o)(4) of the Act by participants in an APM? For example, should the APM require participants to report quality measures to all payers using certified EHR technology or only payers who require EHR reported measures? Should all professionals in the APM in which an EAPM entity participates be required to use certified EHR technology or a particular subset? —What criteria should be used by the Physician-focused Payment Model Technical Advisory Committee for assessing PFPM proposals submitted by stakeholders? We are interested in hearing suggestions related to the criteria discussed in this RFI as well as other criteria. —What are examples of methodologies for attributing and counting patients in lieu of using payments to determine whether an EP is a qualifying APM participant (QP) or partial QP? —What is the appropriate type or types of “financial risk” under section 1833(z)(3)(D)(ii)(I) of the Act to be considered an eligible APM (EAPM) entity? —What is the appropriate level of financial risk “in excess of a nominal amount” under section 1833(z)(3)(D)(ii)(I) of the Act to be considered an EAPM entity? —What criteria could be considered when determining “comparability” to MIPS of quality measures used to identify an EAPM entity? Please provide specific examples for measures, measure types (for example, structure, process, outcome, and other types), data source for measures (for example, patients/caregivers, medical records, billing claims, etc.), measure domains, standards, and comparable methodology. Dated: October 14, 2015. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services.
    [FR Doc. 2015-26568 Filed 10-15-15; 4:15 pm] BILLING CODE 4120-01-P
    GENERAL SERVICES ADMINISTRATION DEPARTMENT OF DEFENSE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 53 [FAR Case 2015-025; Docket No. 2015-0025; Sequence No. 1] RIN 9000-AN11 Federal Acquisition Regulation: Revision to Standard Forms for Bonds AGENCY:

    Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD, GSA, and NASA are proposing to revise Standard Forms prescribed by the Federal Acquisition Regulation (FAR) for contracts involving bonds and other financial protections. The revisions are aimed at clarifying liability limitations and expanding the options for organization types.

    DATES:

    Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before December 21, 2015 to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments in response to FAR Case 2015-025 by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2015-025”. Select the link “Comment Now” that corresponds with “FAR Case 2015-025”. Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2015-025” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001.

    Instructions: Please submit comments only and cite FAR Case 2015-025, Revision to Standard Forms for Bonds in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kathlyn J. Hopkins, Procurement Analyst, at 202-969-7226 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAR Case 2015-025.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to clarify liability limitations and to expand the options for organization types on Standard Forms (SFs) 24, 25, 25A, 34, and 35. This case addresses concerns of surety bond producers that may be adversely affected by differing Federal Agency views on the proper type of organization to indicate on these Standard Forms when a business is a limited liability company (LLC), which is an increasingly prevalent form of business in the construction industry. In some cases, companies are being told to leave the “Type of Organization” block blank because there is no good fit; in other cases, they select the closest fit and are challenged on that selection. To address these concerns, this rule proposes to add a box labelled “Other: (Specify)” to the “Type of Organization” block on each of the five forms (SFs 24, 25, 25A, 34, and 35) in order to expand the range of business types to include LLCs and others, as they evolve.

    In addition, there have been questions about the appropriate value to report in the “Liability Limit” block on these standard forms (i.e., whether to cite the Surety Company's T-limit, as established by the Treasury Department, or the penalty limit for a given bond (its face value)); this has caused processing delays and even some rejections of bids. To address this concern, this rule proposes to add clarifying instructions to each of the forms (SFs 24, 25, 25A, 34, and 35) that amplify the fact that the typical value put into the “Liability Limit” block is the face value of the bond, unless a co-surety arrangement is proposed. These instructions are inserted into item (4) of the SF 24 and into item (3) of SFs 25, 25A, 34, and 35, along with some editorial corrections to the existing instructions.

    II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq., because the rule simply provides additional choices for offerors in characterizing their organization types on SFs 24, 25, 25A, 34, and 35, as well as clarifying what offerors should specify in terms of liability limits. However, an initial regulatory flexibility analysis (IRFA) has been prepared consistent with 5 U.S.C. 603. The analysis is summarized as follows:

    The reason for this action is to provide more choices for organization types on five Standard Forms and to clarify instructions; the action's objective is to make the forms more reflective of current forms of business in the construction industry. The proposed rule would apply to all entities, both small and other than small, performing as contractors or subcontractors on U.S. Government contracts that require bonds and other financial protections. The Federal Procurement Data System-Next Generation (FPDS-NG) indicates that the U.S. Government awarded 3,495 new construction contracts that required bonds and other financial protections from October 1, 2014 through August 4, 2015. Approximately 78 percent (2,711) of the total awards (3,495) were awarded to small entities (comprised of 1,687 unique small entities). However, the small entities will not be materially affected by this rule, as it simply allows all businesses to choose from a broader array of organization types.

    There are no reporting or recordkeeping requirements associated with this rule.

    The rule does not duplicate, overlap, or conflict with any other Federal rules.

    There were no significant alternatives identified that would meet the objective of the rule.

    The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-025), in correspondence.

    IV. Paperwork Reduction Act

    This rule affects the information collection requirements in the provisions at FAR 28.1 and 28.2; 52.228-1; 52.228-2; 52.228-13, 52.228-15; and 52.228-16, currently approved under OMB Control Number 9000-0045, titled: Bid Guarantees, Performance, and Payments Bonds, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because this rule simply provides additional choices for offerors in characterizing their organization types on SFs 24, 25, 25A, 34, and 35, as well as clarifying what offerors should specify in terms of liability limits.

    List of Subjects in 48 CFR Part 53

    Government procurement.

    William F. Clark, Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

    Therefore, DoD, GSA, and NASA proposes to amend 48 CFR part 53 as set forth below:

    PART 53—FORMS 1. The authority citation for 48 CFR part 53 continues to read as follows: Authority:

    40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

    2. Amend section 53.228 by revising the introductory text and paragraphs (a) through (g) to read as follows:
    53.228 Bonds and insurance.

    The following standard forms are prescribed for use for bond and insurance requirements, as specified in part 28 of this chapter:

    (a) SF 24 (Rev. (Date)) Bid Bond. (See 28.106-1.) SF 24 is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    (b) SF 25 (Rev. (Date)) Performance Bond. (See 28.106-1(b).) SF 25 is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    (c) SF 25-A (Rev. (Date)) Payment Bond. (See 28.106-1(c).) SF 25-A is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    (d) SF 25-B (Rev. 10/83), Continuation Sheet (For Standard Forms 24, 25, and 25-A). (See 28.106-1(d).) This form can be found in the GSA Forms Library at gsa.gov/forms.

    (e) SF 28 (Rev. 6/03) Affidavit of Individual Surety. (See 28.106-1(e) and 28.203(b).) SF 28 is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    (f) SF 34 (Rev. (Date)), Annual Bid Bond. (See 28.106-1(f).) SF 34 is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    (g) SF 35 (Rev. (Date)), Annual Performance Bond. (See 28.106-1.) SF 35 is authorized for local reproduction and can be found in the GSA Forms Library at gsa.gov/forms.

    3. Revise section 53.301-24 to read as follows:
    53.301-24 Bid Bond. BILLING CODE 6820-EP-P EP20OC15.000 EP20OC15.001
    4. Revise section 53.301-25 to read as follows:
    53.301-25 Performance Bond. EP20OC15.002 EP20OC15.003
    5. Revise section 53.301-25A to read as follows:
    53.301-25A Payment Bond. EP20OC15.004 EP20OC15.005
    6. Revise section 53.301-34 to read as follows:
    53.301-34 Annual Bid Bond. EP20OC15.006 EP20OC15.007
    7. Revise section 53.301-35 to read as follows:
    53.301-35 Annual Performance Bond. EP20OC15.008 EP20OC15.009
    [FR Doc. 2015-26581 Filed 10-19-15; 8:45 am] BILLING CODE 6820-EP-C
    80 202 Tuesday, October 20, 2015 Notices DEPARTMENT OF AGRICULTURE Economic Research Service Submission for OMB Review; Comment Request October 14, 2015.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Economic Research Service

    Title: Food Security Supplement to the Current Population Survey.

    OMB Control Number: 0536-0043.

    Summary of Collection: The Food Security Supplement is sponsored by USDA as research and evaluation activity authorized under 7 U.S.C. 2004(a). This outlines duties of the Secretary of Agriculture related to research and development including authorizing the collection of statistics. The data to be collected will be used to address multiple programmatic and policy development needs of the Food and Nutrition Service (FNS) and other Federal agencies. The U.S. Census Bureau has the right to conduct the data collection on USDA's behalf under Title 13, Section 8(b).

    Need and Use of the Information: The data collected by the food security supplement will be used to obtain reliable data from a large, representative national sample as a basis for monitoring the prevalence of food security, food insecurity, and very low food security within the U.S. population as a whole and in selected population subgroups; conducting research on causes of food insecurity and the role of Federal food and nutrition programs in ameliorating food insecurity; and continuing development and improvement of methods for measuring these conditions. Information will be collected on food spending, use of Federal and community food and nutrition assistance programs, difficulties in obtaining adequate food during the previous 12 months and 30 days due to constrained resources, and conditions that result from inadequate access to food.

    Description of Respondents: Individuals or Households.

    Number of Respondents: 53,657.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 6,450.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2015-26510 Filed 10-19-15; 8:45 am] BILLING CODE 3410-18-P
    DEPARTMENT OF AGRICULTURE Forest Service Request for Proposals: 2016 Wood Innovations Funding Opportunity AGENCY:

    Forest Service.

    ACTION:

    Request for proposals.

    SUMMARY:

    The U.S. Forest Service (Forest Service) requests proposals to substantially expand and accelerate wood energy and wood products markets throughout the United States to support forest management needs on National Forest System and other forest lands. The grants and cooperative agreements awarded under this announcement will support the Agricultural Act of 2014 (Pub. L. 113-79), Rural Revitalization Technologies (7 U.S.C. 6601), and the nationwide challenge of disposing of hazardous fuels and other wood residues from the National Forest System and other forest lands in a manner that supports wood energy and wood products markets.

    DATES:

    The application deadline is Wednesday, January 13, 2016 at 5:00 p.m. Eastern Time. The Forest Service will hold an informational Pre-Application Webinar on November 10, 2015 at 1:00 p.m. Eastern Standard Time to present this funding opportunity and answer questions. The link is: https://www.livemeeting.com/cc/usda/join?id=TC9SFQ&role=attend&pw=tK-%287%26Dwt.

    FOR FURTHER INFORMATION CONTACT:

    Information on application requirements, eligibility, and prerequisites are available at www.na.fs.fed.us/werc (see “Wood Innovations”) and www.grants.gov. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 800-877-8339 24 hours a day, every day of the year, including holidays.

    Please direct questions regarding this announcement to the appropriate Forest Service Regional Biomass Coordinator listed in the table below. If you have questions that a Coordinator is unable to assist you with, please contact Ed Cesa ([email protected] or (304) 285-1530) at the Wood Education and Resource Center in Princeton, WV.

    Table 1—Forest Service Regional Biomass Coordinators Forest Service Region 1 (MT, ND, Northern ID, & Northwestern SD), ATTN: Mike Dudley, Forest Service, Northern Region (R1), 324 25th St., Ogden, UT 84401, [email protected], (801) 625-5253 Forest Service Region 2 (CO, KS, NE, SD, & WY), ATTN: Mike Eckhoff, Forest Service, Rocky Mountain Region (R2), 740 Simms St, Golden, CO 80401-4702, [email protected], (970) 219-2140. Forest Service Region 3 (AZ & NM), ATTN: Buck Sanchez, Forest Service, Southwestern Region (R3), 333 Broadway Blvd, SE, Albuquerque, NM 87102, [email protected], (505) 842-3498 Forest Service Region 4 (Southern ID, NV, UT, & Western WY), ATTN: Mike Dudley, Forest Service, Intermountain Region (R4), 324 25th St., Ogden, UT 84401, [email protected], (801) 625-5253. Forest Service Region 5 (CA, HI, Guam, and Trust Territories of the Pacific Islands), ATTN: Larry Swan, Forest Service, Pacific Southwest Region (R5), 1323 Club Drive, Vallejo, CA 94592, [email protected], (707) 562-8917 Forest Service Region 6 (OR & WA), ATTN: Ron Saranich, Forest Service, Pacific Northwest Region (R6), 1220 SW 3rd Ave., Portland, OR 97204, [email protected], (503) 808-2346. Forest Service Region 8 (AL, AR, FL, GA, KY, LA, MS, NC, OK, SC, TN, TX, VA, Virgin Islands, & Puerto Rico), ATTN: Dan Len, Forest Service, Southern Region (R8), 1720 Peachtree Rd NW, Atlanta, GA 30309, [email protected], (404) 347-4034 Forest Service Region 9/Northeastern Area (CT, DL, IL, IN, IA, ME, MD, MA, MI, MN, MO, NH, NJ, NY, OH, PA, RI, VT, WV, WI), ATTN: Lew McCreery, Forest Service, Northeastern Area—S&PF, 180 Canfield St, Morgantown, WV 26505, [email protected], (304) 285-1538. Forest Service Region 10 (Alaska), ATTN: Daniel Parrent, Forest Service, Alaska Region (R10), 161 East 1st Avenue, Door 8, Anchorage, AK 99501, [email protected], (907) 743-9467 Grant Program Overview

    Available Funding: The Forest Service plans to award approximately $5 million under this announcement. The maximum for each award is generally $250,000; however, the Forest Service may consider awarding more than $250,000 to a proposal that shows far reaching or significant impact. All awards are based on availability of funding.

    Eligible Applicants: Eligible applicants are for-profit entities; State, local, and Tribal governments; school districts; communities; not-for-profit organizations; or special purpose districts (e.g., public utilities districts, fire districts, conservation districts, or ports).

    Matching Requirements: A minimum 35:65 match is required. That is, an applicant must contribute at least 35 percent of the total project cost. The Forest Service's share of the project will be no more than 65 percent of the total. The applicant's match or contribution must come from non-Federal source funds. The match may include cash or in-kind contributions. All matching funds must be directly related to the proposed project. All organizations that provide matching funds (other than the applicant) must submit letters of support specifying the amount of cash or in-kind services to be provided.

    Deadline: Wednesday, January 13, 2016 at 5:00 p.m. Eastern Standard Time.

    Award Information: Grants and Cooperative Agreements awarded under this announcement are typically awarded for two to three years. Projects of greater complexity may be awarded for up to five years. The Forest Service will notify a recipient if their proposal is selected for an award and indicate whether any additional forms or information is required and an estimate of when they may proceed. The Federal government will incur no legal obligation until appropriated funds are available and a Forest Service Grant Officer returns a fully executed award letter to a successful applicant.

    Note:

    An award to a for-profit entity will generate an Internal Revenue Service (IRS) Form 1099 Miscellaneous Income that will be filed with the IRS and provided to the awardee. The Forest Service expresses no opinion on the taxability, if any, of the awarded grant funds.

    Reporting Requirements: A Federal Financial Report (SF-425) and progress report are required on an annual calendar year basis and must be submitted to the appropriate Grant Officer. A detailed final report is required and should include: (1) Final Summary Report (brief overview of accomplishments of the goals and objectives described in the approved award); and (2) Final Accomplishment Report (includes assessments, reports, case studies, and related documents that resulted from project activities). Ten percent of awarded funds will be withheld until an acceptable final report is approved by the Forest Service. Forest Service will post final reports on the Wood Education and Resource Center Web site.

    Wood Innovations Grant Categories

    The Forest Service seeks proposals that significantly stimulate or expand wood energy and wood products markets that support the long-term management of National Forest System and other forest lands.

    This Request for Proposals focuses on the following priorities to:

    • Reduce hazardous fuels and improve forest health on National Forest System and other forest lands;

    • Reduce costs of forest management on all land types; and

    • Promote economic and environmental health of communities.

    Equipment purchases, basic research, and construction will not be funded under this funding opportunity. Funding will be awarded in two separate categories.

    Grant Category 1: Expansion of Wood Energy Markets

    The intent of this category is to stimulate, expand, or support wood energy markets that depend on forest residues or forest byproducts generated from all land types. Preference will be given to projects that make use of wood generated from National Forest System and other forest lands with high wildfire risk.

    The most competitive proposals will generate immediate and measurable on-the-ground results or substantially stimulate immediate adoption of wood energy. Proposals incorporating technologies that are not commercially proven will not be competitive under this category.

    Grant Category 1 is separated into two main project types:

    1. Wood Energy Markets

    Expand or support wood energy markets that use wood residues for heating, cooling, or electricity production. Projects can include, but are not limited to the following:

    a. Develop a cluster of wood energy projects in a geographic area or specific sector (e.g., prisons, hospitals, universities, manufacturing sector, or industrial sector).

    b. Evaluate and recommend a commercial, institutional, or industrial sector most suitable for wood energy that has not traditionally used wood for heating, cooling, or electricity.

    c. Conduct a feasibility assessment of several municipalities that would be ideal candidates to construct a district wood energy system for heating, cooling, and electricity.

    d. Develop innovative financing or new funding opportunities for wood energy development.

    e. Overcome market barriers and stimulate expansion of wood energy in the commercial sector.

    f. Establish a Statewide Wood Energy Team that provides technical, financial, and outreach assistance for wood energy projects. Note: Proposals to establish a Statewide Wood Energy Team in the following States will not be considered because a team is already in place: AK, AZ, CA, CO, ID, KY, MA, MI, MN, MT, NH, NM, NY, OR, PA, VA, VT, WA, WI, and WV.

    The above list of examples is not exhaustive and merely illustrates the types of projects that can be considered.

    2. Wood Energy Projects

    Complete engineering designs, cost analyses, permitting, or other requirements that are necessary in the later stages of wood energy project development to secure financing.

    Note:

    Preference will be given to proposals that bundle or address multiple wood energy projects. Projects in early project scoping or planning that need preliminary analyses, pre-feasibility assessments, or other assistance that is typical in the early phases of project development will not be competitive.

    Grant Category 2: Expansion of Wood Products Markets

    The intent of this category is to promote markets that create or expand the demand for non-energy based wood products. Preference will be given to projects that support commercial building markets or other markets that use innovative wood products. Wood energy projects will not be considered under this category because those projects can apply for funding under Grant Category 1. Demonstration projects and applied research will be considered but applicants are strongly encouraged to first consult with their designated Forest Service Regional Biomass Coordinator to determine whether such projects will be competitive.

    Projects can include, but are not limited to the following:

    a. Develop training or perform outreach about innovative wood construction materials or building designs that incorporate wood into commercial construction (e.g., structural round wood or cross-laminated timbers).

    b. Develop a regional or national strategy to stimulate market demand for wood technology in targeted sectors, especially commercial construction.

    c. Establish statewide wood action teams that focus on using wood in support of Forest Service Regional/Area priorities and State Forest Action Plans.

    d. Facilitate establishment of new building codes to support expanded use of wood materials.

    e. Showcase the quantified environmental and economic benefits of using wood as a green building material in an actual commercial building and the projected benefits achieved if replicated across the United States based on commercial construction market trends.

    f. Develop a carbon trading market protocol for wood building materials that accounts for the fossil carbon offset from using wood.

    g. Develop manufacturing capacity and markets for wood products that support forest ecosystem restoration.

    h. Complete engineering designs, cost analyses, permitting, or other requirements for the final stages of commercial construction projects that use wood as a primary building material.

    The above list of examples is not exhaustive and merely illustrates the types of projects that can be considered.

    Application Process

    Application information is available at the following two Web sites:

    http://www.na.fs.fed.us/werc/ (on right side of Web page under “Wood Innovations”)

    www.grants.gov (Search: Opportunity: USDA-FS-WERC-2016 or CFDA 10.674 Wood Utilization Assistance, Agency Forest Service);

    Applicants should consult with the appropriate Forest Service Regional Biomass Coordinator to develop proposals (see Table 1 of Contacts section). Proposals should align with Forest Service Regional/Area priorities and State Forest Action Plans.

    Application Submission: Applications must be submitted by email to the respective Forest Service Regional Biomass Coordinator listed in the Contacts section of this announcement by 5:00 p.m. Eastern Time on January 13, 2016. No Exceptions. Paper submittals will not be accepted.

    Note:

    Your Forest Service Region is generally determined by the State where the majority of the proposed work will be conducted. Two Forest Service regions may exist in one State. You can locate your Forest Service region at: http://www.fs.fed.us/maps/products/guide-national-forests09.pdf. Consult with a Forest Service Regional Biomass Coordinator if you are not certain which Region applies.

    Application Format and Content: Each submittal must consist of two separate PDF files, preferably in a searchable format, as follows:

    PDF file #1: Application Part 1 (Cooperator Contact Information) and Application Part 2 (Proposal and Appendices).

    PDF file #2: Application Part 3 (Required Financial Forms, which must include SF-424, SF-424A, SF-424B, AD-1047, AD-1049 (or AD-1052 for States and State agencies), AD-3030, FS-1500-35 (certificate regarding lobbying activities), and Financial Capability Questionnaire FS-1500-22).

    Note:

    The applicant must include a DUNS number and register at www.sam.gov to receive a federal award.

    Application Parts 1, 2, and 3 can be found at http://www.na.fs.fed.us/werc on right side of Web page under “Wood Innovations.” Submit all application information at the same time.

    The Proposal in Application Part 2 must be presented on 8.5 × 11 single-spaced and numbered pages with 1-inch margins using 12-point Times New Roman font. The Proposal cannot exceed 11 pages and must include items #1 through #5 as listed below:

    1. Project Narrative (4 Pages)

    • The project narrative should provide a clear description and anticipated impact of the project, including the following where appropriate: (1) Magnitude of the impact on markets generating renewable energy or creating non-energy wood products; (2) Benefits to National Forest System lands (e.g., tons of biomass removed in fire-prone areas, air quality improvements, acres treated, cost savings for forest management, or carbon offsets); (3) Source of biomass removed from forested areas broken out by land ownership; and (4) Job creation and retention.

    • Describe methods and reasoning for selecting areas of focus (e.g., geographic clusters, sector-based clusters, or larger projects to be targeted).

    • Specify the number of years requested for the award.

    2. Program of Work (3 Pages)

    • Describe statement of need, goals, and objectives.

    • Describe methods to accomplish goals and objectives.

    • Specify projected accomplishments, timeline, and deliverables.

    • Discuss communication and outreach activities that create social acceptance in communities or markets where projects are targeted.

    • Describe monitoring plan, which must include annual and final reports.

    • Discuss all relevant aspects of the project, such as preliminary assessments, resource inventories, and success stories.

    • Describe projected impact on wood energy or wood products markets.

    3. Budget Summary and Justification in Support of SF-424A (2 Pages)

    • Address proposed expenditures for each key activity or category within the proposed program of work.

    • Specify cash and in-kind match, other Federal funds, and staff time that will help accomplish the program of work.

    • Describe the fee structure if fee-for-services is planned.

    4. Qualifications of Staff, Organization, and Partners (1.5 Pages)

    • Include key personnel qualifications, certifications, and relevant experience.

    • Describe experience and success of any prior funded Forest Service projects.

    5. Project Outcomes, Annual Progress Reports, and Final Reports (0.5 Pages)

    • List anticipated project outcomes and accomplishments.

    • Describe types of reports, documents, and success stories that will be provided at the end of the project for posting on the Wood Education and Resource Center Web site in addition to mandatory reporting.

    Documentation exceeding the designated page limit requirements for any given section will not be considered.

    Appendices should be well organized with an index so that a reviewer can readily find information of interest. Include only relevant information in the Appendices that will help a review panel better understand and evaluate your project. Below are examples of information to include in the Appendices:

    • Feasibility Assessments.

    • Woody Biomass Resource Supply Assessment.

    • If appropriate, quotes for Professional Engineering Services and rationale for selection of contractor, if already selected.

    • Letters of Support from Partners, Individuals, or Organizations, especially those playing a key role or providing matching funds. These letters should display the degree of collaboration occurring between the different entities engaged on the project.

    • Miscellaneous, such as schematics, engineering designs, or executive summaries of reports.

    • List of all other Federal funds received for this project within the last 3 years (include agency, program name, and dollar amount).

    Letters of Support to include in Appendix: Applicants are strongly encouraged to include letters of support from partners closely engaged on the project, especially Forest Service units if National Forest System Lands will directly benefit from the project. All organizations that provide matching funds (other than the applicant) must submit letters of support specifying the amount of cash or in-kind services to be provided. These letters of support must be included in the application package.

    Proposal Evaluation

    All applications will be screened to ensure basic compliance with the directions in this announcement. Applications not following the directions will be disqualified without appeal. A panel of Federal experts and their designees will perform a thorough technical review of eligible proposals and evaluate the proposals according to the criteria outlined in this announcement. Regional Foresters and the Northeastern Area Director will rank proposals according to regional and area priorities. The panel, Regional Foresters, and Northeastern Area Director will submit their recommendations to the Forest Service national leadership for a final decision.

    Evaluation Criteria and Point System: Reviewers will assign points to each proposal based on its ability to meet the following criteria. A maximum of 100 points can be earned per proposal.

    • Alignment with goals and objectives of this Request for Proposals. (20 points)

    • Technical approach, deliverables, and timetable. (30 points)

    • Impact on forest management, wood energy markets, or wood products markets. (20 points)

    • Qualifications, relevant experience, and roles of team members. (20 points)

    • Leveraging of federal funds. (10 points)

    Dated: October 2, 2015. Patricia F. Hirami, Associate Deputy Chief, State and Private Forestry.
    [FR Doc. 2015-26533 Filed 10-19-15; 8:45 a.m.] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Submission for OMB Review; Comment Request October 14, 2015.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by November 19, 2015 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8681.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    National Agricultural Statistics Service

    Title: Cost of Pollination Survey.

    OMB Control Number: 0535-NEW.

    Summary of Collection: The primary objectives of the National Agricultural Statistics Service (NASS) are to prepare and issue official State and national estimates of crop and livestock production, disposition and prices, economic statistics, and environmental statistics related to agriculture and to conduct the Census of Agriculture and its follow-on surveys. As pollinators (honeybees) are vital to the agricultural industry for producing food for the world's population. NASS' primary focus will center on costs associated with honey bee pollination, but will also collect some basic information relating to other forms of pollination. General authority for these data collection activities is granted under U.S.C. Title 7, Section 2204.

    Need and Use of the Information: NASS plans to collect economic data under this new collection using the “Cost of Pollination Inquiry” survey. Data relating to the targeted crops (fruits, nuts, vegetable and specialty crops) will be collected for the total number of acres that rely on honey bee pollination, the number of honey bee colonies that were used on those acres, and any cash fees associated with honey bee pollination. By publishing both regional and crop specific pollination costs, both, crop farmers and beekeepers will be able to benefit from this additional data.

    Description of Respondents: Farmers.

    Number of Respondents: 50,000.

    Frequency of Responses: Reporting: Once a year.

    Total Burden Hours: 14,987.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2015-26529 Filed 10-19-15; 8:45 am] BILLING CODE 3410-20-P
    DEPARTMENT OF AGRICULTURE Rural Business Cooperative Service Submission for OMB Review; Comment Request October 14, 2015.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received by November 19, 2015. Copies of the submission(s) may be obtained by calling (202) 720-8681.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Rural Business-Cooperative Service

    Title: Strategic Economic and Community Development.

    OMB Control Number: 0570-0068.

    Summary of Collection: As authorized under the Agricultural Act of 2014 (2014 Farm Bill), Section 6025, Strategic Economic and Community Development enables the Secretary of Agriculture to provide priority to projects that support Strategic Economic and Community Development plans. The Agency will reserve up to 10 percent of the funds appropriated to the following seven Rural Development programs (which are referred to as the “underlying programs”): Community Facility Grants; Community Facility Guaranteed Loans; Community Facility Direct Loans; Water and Waste Disposal Loans and Grants; Water and Waste Disposal Guaranteed Loans; Business and Industry Guaranteed Loans and Rural Business Development Grants each fiscal year.

    Need and use of the Information: To be eligible for the reserved funds a project must meet three criteria: Projects must first be eligible for funding under the underlying program from which funds are reserved; carried out solely in rural areas and that the project support the implementation of a strategic economic development or community development plan on a multi-jurisdictional basis as defined in 7 CFR 1980.1005. Applicants will submit information on the Application Form 1980-88, the Plan that the project supports, and the project's measures, metrics and outcome. The collection of information is necessary for the Agency to identify projects eligible for the reserved funding under the Section 6025 program and to prioritize eligible applications.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 374.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 3,348.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2015-26528 Filed 10-19-15; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF COMMERCE Bureau of the Census Census Scientific Advisory Committee AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice of Public Virtual Meeting.

    SUMMARY:

    The Bureau of the Census (Census Bureau) is giving notice of a virtual meeting of the Census Scientific Advisory Committee (C-SAC). The Committee will address policy, research, and technical issues relating to the 2020 Census Operational Plan. The C-SAC will meet via teleconference on November 2, 2015. Last-minute changes to the schedule are possible, which could prevent us from giving advance public notice of schedule adjustments. Please visit the Census Advisory Committees Web site for the most current meeting agenda at: http://www.census.gov/cac/.

    DATES:

    November 2, 2015. The virtual meeting will begin at approximately 1:00 p.m. and end at approximately 3:00 p.m.

    ADDRESSES:

    The meeting will be held via teleconference. To attend, participants should call the following phone number: 1-877-973-5204. When prompted, please use the following password: 1733620.

    FOR FURTHER INFORMATION CONTACT:

    Kim Collier, Assistant Division Chief for Stakeholders, Customer Liaison and Marketing Services Office, [email protected], Department of Commerce, U.S. Census Bureau, Room 8H185, 4600 Silver Hill Road, Washington, DC 20233, telephone 301-763-6590. For TTY callers, please use the Federal Relay Service 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    The members of the C-SAC are appointed by the Census Bureau's Director. The Committee provides scientific and technical expertise, as appropriate, to address Census Bureau program needs and objectives. The Committee has been established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10).

    All meetings are open to the public. A brief period will be set aside at the meeting for public comment on November 2. However, individuals with extensive questions or statements must submit them in writing to: [email protected] (subject line “November 2015 C-SAC Virtual Meeting Public Comment”), or by letter submission to the Committee Liaison Officer, Department of Commerce, U.S. Census Bureau, Room 8H185, 4600 Silver Hill Road, Washington, DC 20233.

    Dated: October 15, 2015. John H. Thompson, Director, Bureau of the Census .
    [FR Doc. 2015-26605 Filed 10-19-15; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: Bureau of Economic Analysis (BEA), Department of Commerce.

    Title: Quarterly Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons.

    OMB Control Number: 0608-0065.

    Form Number: BE-185.

    Type of Request: Regular submission.

    Number of Responses: 2,700 annually (675 filed each quarter; 550 reporting mandatory data, and 125 that would file other responses).

    Average Hours per Response: 10 hours is the average for those reporting data and 1 hour is the average for those not reporting data or providing voluntary responses, but hours may vary considerably among respondents because of differences in company size and complexity.

    Estimated Total Annual Burden Hours: 22,500.

    Needs and Uses: The Quarterly Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons (BE-185) is a survey that collects data from U.S. financial services providers that engage in covered transactions with foreign persons in financial services. A U.S. person must report if it had sales of covered services to foreign persons that exceeded $20 million for the previous fiscal year, or are expected to exceed that amount during the current fiscal year, or if it had purchases of covered services from foreign persons that exceeded $15 million for the previous fiscal year, or are expected to exceed that amount during the current fiscal year.

    The data collected on the survey are needed to monitor U.S. trade in services, to analyze the impact of U.S. trade on the U.S. and foreign economies, to compile and improve the U.S. economic accounts, to support U.S. commercial policy on trade in services, to conduct trade promotion, and to improve the ability of U.S. businesses to identify and evaluate market opportunities. The data are used in estimating the financial services component of the U.S. international transactions accounts and national income and product accounts.

    The Bureau of Economic Analysis (BEA) is proposing no additions and modifications to the current BE-185 survey. The effort to keep current reporting requirements unchanged is intended to minimize respondent burden while considering the needs of data users. Existing language in the instructions and definitions will be reviewed and adjusted as necessary to clarify survey requirements.

    Affected Public: Businesses or other for-profit organizations.

    Frequency: Quarterly.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view the Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA [email protected] or faxed to (202) 395-5806.

    Dated: October 14, 2015. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2015-26495 Filed 10-19-15; 8:45 am] BILLING CODE 3510-06-P
    DEPARTMENT OF COMMERCE Economic Development Administration Membership of the Economic Development Administration Performance Review Board AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice of Membership on the Economic Development Administration's Performance Review Board.

    SUMMARY:

    In accordance with 5 U.S.C. § 4314(c)(4), the Economic Development Administration (EDA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of EDA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for EDA's Performance Review Board begins on October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S.C. 4314(c)(4), the Economic Development Administration (EDA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of EDA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for EDA's Performance Review Board begins on October 20, 2015. The name, position title, and type of appointment of each member of EDA's Performance Review Board are set forth below by organization:

    1. Department of Commerce, Office of the Secretary, Office of the General Counsel (OS/OGC) Stephen D. Kong, Chief Counsel for Economic Development, Career SES, Chairperson 2. Department of Commerce, Minority Business Development Agency (MBDA) Edith J. McCloud, Associate Director for Management, Career SES 3. Department of Commerce, Office of the Secretary (OS), Office of the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA) Renee A. Macklin, Director for Program Evaluation and Risk Management, Career SES (New Member) 4. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) Russell F. Smith, III, Deputy Assistant Secretary for International Fisheries, Non-Career SES Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2015-26582 Filed 10-19-15; 8:45 am] BILLING CODE 3510-25-P
    DEPARTMENT OF COMMERCE Economics and Statistics Administration Performance Review Board Membership AGENCY:

    Economics and Statistics Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    Below is a listing of individuals who are eligible to serve on the Performance Review Board (PRB) in accordance with the Economics and Statistics Administration's (ESA) Senior Executive Service and Senior Professional performance management systems:

    Kenneth A. Arnold, Deputy Under Secretary for Economic Affairs, ESA Lisa M. Blumerman, Associate Director for Decennial Census Programs, Census Bureau William G. Bostic, Jr., Associate Director for Economic Programs, Census Bureau Stephen B. Burke, Chief Financial Officer and Director for Administration, ESA Joanne Buenzli Crane, Associate Director for Administration and Chief Financial Officer, Census Bureau Austin J. Durrer, Chief of Staff, ESA Susan Helper, Special Advisor, ESA Ron S. Jarmin, Assistant Director for Research and Methodology, Census Bureau Enrique Lamas, Associate Director for Demographic Programs, Census Bureau Harry Lee, Assistant Director for Information Technology and Deputy Chief Information Officer, Census Bureau Thomas A. Louis, Associate Director for Research and Methodology, Census Bureau Jennifer Madans, Associate Director for Science, Center for Disease Control and Prevention Brent R. Moulton, Associate Director for National Economics, Bureau of Economic Analysis Brian C. Moyer, Director, Bureau of Economic Analysis Joel D. Platt, Associate Director for Regional Economics, Bureau of Economic Analysis Nancy A. Potok, Deputy Director, Census Bureau Pravina A. Raghavan, Senior Advisor for Policy and Program Integration, Office of the Deputy Secretary Angela Simpson, Deputy Assistant Secretary for Communications and Information, National Telecommunications and Information Administration Jeannie L. Shiffer, Associate Director for Communications, Census Bureau Sarahelen Thompson, Associate Director for International Economics, Bureau of Economic Analysis Katherine K. Wallman, Chief Statistician, Office of Management and Budget

    The purpose of a PRB is to provide fair and impartial review of recommended SES/ST performance ratings, bonuses, and pay adjustments and Presidential Rank Award nominations. The term of each PRB member will expire on December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Latasha Ellis, Executive Resources Office, 301-763-3727.

    Dated: October 12, 2015. Stephen B. Burke, Chief Financial Officer and Director for Administration, Chair, ESA Performance Review Board.
    [FR Doc. 2015-26586 Filed 10-19-15; 8:45 am] BILLING CODE 3510-BS-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration First Responder Network Authority [Docket Number: 140821696-5909-05] RIN 0660-XC012 Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 AGENCY:

    First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice; final interpretations.

    SUMMARY:

    The First Responder Network Authority (“FirstNet”) publishes this Notice to issue final interpretations of its enabling legislation that will inform, among other things, forthcoming requests for proposals, interpretive rules, and network policies. The purpose of this Notice is to provide stakeholders FirstNet's interpretations on many of the key preliminary interpretations presented in the proposed interpretations published on March 13, 2015.

    DATES:

    Effective October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected]

    SUPPLEMENTARY INFORMATION: I. Introduction and Background

    The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (the “Act”) established the First Responder Network Authority (“FirstNet”) as an independent authority within the National Telecommunications and Information Administration (“NTIA”). The Act establishes FirstNet's duty and responsibility to take all actions necessary to ensure the building, deployment, and operation of a nationwide public safety broadband network (“NPSBN”).1

    1 47 U.S.C. 1426(b).

    One of FirstNet's initial steps in carrying out this responsibility pursuant to the Act is the issuance of open, transparent, and competitive requests for proposals (“RFPs”) for the purposes of building, operating, and maintaining the network. We have sought, and may continue to seek, public comments on many technical and economic aspects of these RFPs through traditional procurement processes, including requests for information (“RFIs”) and potential draft RFPs and Special Notices, prior to issuance of RFPs.2

    2 The pronouns “we” or “our” throughout this Notice refer to “FirstNet” alone and not FirstNet, NTIA, and the U.S. Department of Commerce as a collective group.

    As a newly created entity, however, we are also confronted with many complex legal issues of first impression pursuant to the Act that will have a material impact on the RFPs, responsive proposals, and our operations going forward. Generally, the Administrative Procedure Act (“APA”) 3 provides the basic framework of administrative law governing agency action, including the procedural steps that must precede the effective promulgation, amendment, or repeal of a rule by a federal agency.4 However, section 1426(d)(2) of the Act provides that any action taken or decision made by FirstNet is exempt from the requirements of the APA.5

    3See 5 U.S.C. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521.

    4See 5 U.S.C. 551-559. The APA defines a “rule” as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.” 5 U.S.C. 551(4).

    5 47 U.S.C. 1426(d)(2).

    Nevertheless, although excluded from these procedural requirements, on March 13, 2015, FirstNet published a public notice entitled “Further Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012” (hereinafter “the Second Notice”),6 seeking public comments on preliminary interpretations on certain foundational legal issues, as well as technical and economic issues, to help guide FirstNet's efforts in achieving its mission.

    6 80 FR 13336 (Mar. 13, 2015).

    The purpose of this Notice is to provide stakeholders notice of the final legal interpretations on many of the key preliminary interpretations presented in the Second Notice. Additional background, rationale for this action, and explanations of FirstNet's interpretations were included in the Second Notice and are not repeated herein. The section immediately below labeled “Final Interpretations” summarizes FirstNet's final interpretations with respect to the Second Notice. Thereafter, the section labeled “Response to Comments” summarizes the comments received on the preliminary interpretations contained in the Second Notice and provides FirstNet's responses to such comments, including further explanations to FirstNet's interpretations.

    II. Final Interpretations

    In sum, FirstNet makes the following final interpretations related to topics in the Second Notice:

    A. Technical Requirements Relating to Equipment for Use on the NPSBN Promoting Competition in the Equipment Market Place

    1. FirstNet interprets 47 U.S.C. 1426(b)(2)(B) as applying to any equipment, including end user devices, used “on” (i.e., to use or access) the network, but does not include any equipment that is used to constitute the network (i.e., the core network or radio access network (“RAN”)).

    2. FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying the requirements listed in 47 U.S.C. 1426(b)(2)(B)(i) to only those parameters necessary to maintain interoperability (i.e., “connectivity”) with the NPSBN, which are included in the Interoperability Board Report or otherwise in FirstNet network policies.

    3. FirstNet concludes that 47 U.S.C. 1426(b)(2)(B) applies regardless of whether the equipment will access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN.

    B. FirstNet Network Policies Network Policies

    4. FirstNet concludes that the items listed in 47 U.S.C. 1426(c)(1)(A) relating to RFPs are “policies” for purposes of 47 U.S.C. 1426(c)(2) and as the term is generally used in 47 U.S.C. 1426(c).

    5. FirstNet concludes that the network policies developed pursuant to 47 U.S.C. 1426(c)(1) apply to all elements of the network, including RANs deployed by individual States pursuant to 47 U.S.C. 1442(e)(3).

    6. FirstNet concludes that a required aspect of a State's demonstrations of interoperability to both the Federal Communications Commission (“FCC”) and NTIA under 47 U.S.C. 1442(e)(3), is a commitment to adhering to FirstNet's network policies implemented under 47 U.S.C. 1426(c).

    7. FirstNet concludes that it could require compliance with network policies essential to the deployment and interoperable operation of the network for public safety in all States as a condition of entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II).

    C. A State's Opportunity To Assume Responsibility for RAN Deployment and Operation Final Interpretations Regarding the Presentation of a State Plan and the Completion of Request for Proposal Process

    8. FirstNet interprets 47 U.S.C. 1442(e) to merely require completion of the request for proposal process for the State in question, rather than the nation as a whole, prior to presentation of the plan to the State, assuming that FirstNet can at that stage otherwise meet the requirements for presenting a plan (and its contents) to such State.

    9. FirstNet concludes that “completion” of the request for proposal process occurs when FirstNet has obtained sufficient information to present the State plan with the details required pursuant to the Act for such plan, but not necessarily at any final award stage of such a process.

    Final Interpretations Regarding the Content of a State Plan

    10. FirstNet concludes that the details of the proposed State plan pursuant to 47 U.S.C. 1442(e)(1)(B) should include at least certain outcomes of the RFP process.

    11. FirstNet concludes that the FirstNet plan must contain sufficient information to enable NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service.

    Governor's Role in the State Plan Process

    12. FirstNet concludes that the decision of the Governor pursuant to 47 U.S.C. 1442(e)(2), for purposes of the Act, is binding on all jurisdictions within such State, and that such a decision must be made for the entire State, and not simply a subset of individual jurisdictions within such State.

    13. FirstNet concludes that FirstNet and a State could agree that FirstNet and the State (or sub-State jurisdictions) work together to permit implementation of added RAN coverage, capacity, or other network components beyond the State plan to the extent the interoperability, quality of service, and other goals of the Act are met.

    Final Interpretations Regarding the Timing and Nature of a State's Decision

    14. FirstNet concludes that the Governor must await notice and presentation of the FirstNet plan prior to making the decision pursuant to 47 U.S.C. 1442(e)(2).

    15. FirstNet concludes that a State decision to participate in the FirstNet proposed deployment of the network in such State may be manifested by a State providing either (1) actual notice in writing to FirstNet within the 90-day decision period or (2) no notice within the 90-day period established pursuant to 47 U.S.C. 1442(e)(2).

    16. FirstNet interprets the requirement within 47 U.S.C. 1442(e)(3) stating that the notice is to be provided to FirstNet, NTIA, and the FCC as being a contemporaneous (i.e., same day) requirement.

    The Nature of FirstNet's Proposed State Plan

    17. FirstNet concludes that the presentation of a plan to a Governor and his/her decision to either participate in FirstNet's deployment or follow the necessary steps to build a State RAN does not create a contractual relationship between FirstNet and the State.

    Final Interpretations Regarding the State's Development of an Alternative Plan

    18. FirstNet concludes that the phrase “complete requests for proposals” means that a State has progressed in such a process to the extent necessary to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN, that demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).

    19. FirstNet concludes that where a State fails to “complete” its request for proposal within the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan pursuant to 47 U.S.C. 1442(e)(3)(C), and the construction, maintenance, operations, and improvements of the RAN within the State shall proceed in accordance with the FirstNet proposed plan for such State.

    Final Interpretations Regarding the Responsibilities of FirstNet and a State Upon a State Decision To Assume Responsibility for the Construction and Operation of Its Own RAN

    20. FirstNet concludes that once a plan has been disapproved by the FCC, subject only to the additional review described in 47 U.S.C. 1442(h), the opportunity for a State to conduct its own RAN deployment pursuant to 47 U.S.C. 1442(e)(3) will be forfeited, and FirstNet shall proceed in accordance with its proposed plan for that State.

    21. FirstNet concludes, following an FCC-approved alternative State RAN plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State.

    22. FirstNet concludes that if a State, following FCC approval of its alternative plan, is unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, RAN responsibilities in the State.

    D. Customer, Operational and Funding Considerations Regarding State Assumption of RAN Construction and Operation Customer Relationships in States Assuming RAN Construction and Operation

    23. FirstNet concludes that the Act provides sufficient flexibility to accommodate many types of customer relationships with public safety entities for States assuming RAN responsibility so long as the relationships meet the interoperability and self-sustainment goals of the Act.

    24. FirstNet concludes that the Act does not require that States assuming RAN deployment responsibilities be the customer-facing entity entering into agreements with and charging fees to public safety entities in such States.

    25. FirstNet concludes that the Act does not preclude States assuming RAN deployment responsibilities from charging subscription fees to public safety entities if FirstNet and such States agree to such an arrangement in the spectrum capacity lease.

    26. FirstNet concludes that the Act provides sufficient flexibility to allow the determination of whether FirstNet or a State plays a customer-facing role to public safety entities in a State assuming RAN responsibilities to be the subject of operational discussions between FirstNet and the State in negotiating the terms of the spectrum capacity lease.

    27. FirstNet concludes that it will maintain a flexible approach to such functions and interactions in order to provide the best solutions to each State so long as the agreed upon approach meets the interoperability and self-sustainment goals of the Act.

    Final Interpretation of FirstNet Analyzing Funding Considerations as Part of Its Determination To Enter Into a Spectrum Capacity Lease

    28. FirstNet concludes, in fulfilling its duties and responsibilities pursuant to the Act, it can and must take into account funding considerations, including the “cost-effectiveness” of an alternative state plan as it may impact the national deployment of the NPSBN, in determining whether and under what terms to enter into a spectrum capacity lease with a State.7

    7See 47 U.S.C. 1442(e)(3)(D).

    29. FirstNet concludes as part of its cost-effectiveness analysis in determining whether and under what terms to enter into a spectrum capacity lease, it (i) must consider the impact of cost-inefficient alternative RAN plans, including inefficient use of scarce spectrum resources, on the NPSBN, and (ii) may require that amounts generated within a State in excess of those required to reasonably sustain the State RAN, be utilized to support the Act's requirement to deploy the NPSBN on a nationwide basis.

    30. FirstNet concludes as part of its cost-effectiveness analysis, it must consider State reinvestment and distribution of any user fees assessed to public safety entities or spectrum capacity revenues in determining whether and under what terms to enter into a spectrum capacity lease.

    Reinvestment of User or Subscriber Fees

    31. FirstNet concludes that the Act requires that States assuming RAN deployment responsibilities and charging user or subscription fees to public safety entities must reinvest such fees into the network.

    32. FirstNet concludes it could impose a reinvestment restriction within the terms of a spectrum capacity lease with a State.

    Reinvestment of Revenues From State Covered Leasing Agreements/Public-Private Partnerships

    33. FirstNet concludes that, in practical effect, the literal statutory differences between a covered leasing agreement and public-private partnership as used in the Act result in no substantive difference between the Act's treatment of FirstNet and States that assume RAN responsibility.

    34. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment provision of 47 U.S.C. 1442(g) should be interpreted to require such reinvestment.

    III. Response to Comments

    FirstNet received 70 written comments in response to the Second Notice from various stakeholders, including States, tribes, public safety organizations, commercial carriers, equipment vendors, utilities, and various associations. Comments included the submission of a large number of identical or similar comments as well as oral statements made during meetings with FirstNet. FirstNet has carefully considered each of the comments submitted. FirstNet has grouped and summarized the comments according to common themes and has responded accordingly. All written comments can be found at www.regulations.gov.

    A. Final Interpretations of Technical Requirements Relating to Equipment for Use on the NSPBN Promoting Competition in the Equipment Market Place

    The Act requires FirstNet to “promote competition in the equipment market, including devices for public safety communications, by requiring that equipment for use on the network be: (i) Built to open, non-proprietary, commercially available standards; (ii) capable of being used by any public safety entity and by multiple vendors across all public safety broadband networks operating in the 700 MHz band; and (iii) backward-compatible with existing commercial networks to the extent that such capabilities are necessary and technically and economically reasonable.” 8 Given the interoperability goals of the Act, and the fact that end user devices will need to operate seamlessly across the network regardless of State decisions to assume RAN responsibilities, FirstNet makes the following final interpretations related to this provision:

    8 47 U.S.C. 1426(b)(2)(B)(i).

    1. FirstNet interprets 47 U.S.C. 1426(b)(2)(B) as applying to any equipment, including end user devices, used “on” (i.e., to use or access) the network, but does not include any equipment that is used to constitute the network (i.e., the core network or RAN).

    2. FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying the requirements listed in 47 U.S.C. 1426(b)(2)(B)(i) to only those parameters necessary to maintain interoperability (i.e., “connectivity”) with the NPSBN, which are included in the Interoperability Board Report or otherwise in FirstNet network policies.

    3. FirstNet concludes that 47 U.S.C. 1426(b)(2)(B) applies whether or not the equipment is to access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN.

    Analysis of and Responses to Comments on Technical Requirements Relating to Equipment for Use on the NPSBN

    Summary: The majority of commenters supported FirstNet's proposed interpretations regarding technical requirements relating to equipment for use on the NPSBN, emphasizing, for example, that a contrary interpretation could lead to incompatible equipment, thereby limiting interoperability and resulting in higher-priced end user equipment. In particular, all commenters agreed that 47 U.S.C. 1426(b)(2)(B) applies regardless of whether the equipment will access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN. Interoperability of end-user devices across the entire network was the primary basis for this perspective. As documented below, however, certain commenters disagreed or provided general comments on these interpretations.

    Comment #1: Several commenters stated the FirstNet proposed interpretation limiting the applicability of 47 U.S.C. 1426(b)(2)(B) to subscriber equipment (i.e., end-user devices) only and not system infrastructure (i.e., the core network and RAN) is not supported by the plain language of the Act and should be interpreted to apply more broadly to all network equipment and infrastructure.

    Response: FirstNet disagrees that its interpretation is not supported by the plain language of the Act or should be applied more broadly to include network components or equipment (i.e., the core network and RAN). First, there is nothing in 47 U.S.C. 1426(b)(2)(B) that directly indicates or references equipment or components constituting the core network or RAN. Rather, the Act expressly states that 47 U.S.C. 1426(b)(2)(B) applies only to equipment “for use on” the NPSBN, rather than, for example, “equipment of” or “equipment constituting” the NPSBN. More specifically, the Act states that the range of equipment implicated in this provision must at least include “devices,” which, in the telecommunications market, is often a reference to end user devices, rather than equipment used inside the network to provide service to such devices.9

    9See 47 U.S.C. 1426(b)(2)(B).

    Second, the Act provides a separate standard when discussing equipment constituting the NPSBN versus equipment for use on the network. In particular, the network components of the NPSBN itself initially consists of a core network and RAN, both of which are required to be based on “commercial standards.” 10 Conversely, when describing equipment, the Act requires that such equipment must be built not only to commercial standards, but also to “open, non-proprietary” standards.11 Consequently, a plain reading of the Act indicates that Congress intended for different standards to apply to the network components (i.e., core network and RAN) and equipment for use on the network described in 47 U.S.C. 1426(b)(2)(B).

    10See 47 U.S.C. 1422(b).

    11See 47 U.S.C. 1426(b).

    Finally, this interpretation is supported by the other two elements appearing in 47 U.S.C. 1426(b)(2)(B). For example, 47 U.S.C. 1426(b)(2)(B)(ii) requires that such equipment be “capable of being used by any public safety entity,” which would seem inconsistent with a requirement applicable to complex network routing and other equipment used inside the network. Similarly, 47 U.S.C. 1426(b)(2)(B)(iii) requires such equipment to be “backward-compatible with existing commercial networks” in certain circumstances, which would again make sense in the context of end user devices, but not equipment being used to construct the network. Thus, based on the analysis in the Second Notice and supporting comments, FirstNet interprets the plain language of the Act describing equipment in 47 U.S.C. 1426(b)(2)(B) as referring to equipment using the services of the network, rather than equipment forming elements of the NPSBN (i.e., core network or the RAN).

    Comment #2: One commenter stated that it is critical for FirstNet to understand that a paramount concern of the Act is to avoid a replication of the underlying conditions that led to limited participants in the public safety ecosystem, including the use of equipment that is not based on generally accepted commercial standards, but were in fact proprietary technologies that were, in most cases by design, not interoperable with other commercially available alternatives, resulting in limited competition and increased costs.

    Response: FirstNet acknowledges the comment and understands the importance of promoting competition in the equipment marketplace as described in 47 U.S.C. 1426(b)(2)(B), while at the same time allowing for the development of innovative technologies that will interoperate with the NPSBN and provide the best solutions for public safety.

    Comment #3: A few commenters disagreed with the interpretation and suggested further clarity was required around the specific elements that constitute the FirstNet core network and RAN in order to better understand the scope of the proposed interpretation.

    Response: FirstNet refers the commenters to the final interpretations to the First Notice, 12 which discuss in detail the specific elements that constitute the FirstNet core network and RAN.

    12Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012, 79 FR 57058 (September 24, 2014) (herein “First Notice”).

    Comment #4: One commenter encouraged FirstNet to focus on optimizing options, rather than defining network openness proscriptively. The commenter reasoned that FirstNet should take into consideration the fact that maximizing customer choice and vendor competition on handsets will also require an eye towards RAN equipment open standards to maximize the use of commercially available handsets already in development for commercial cellular networks, and also to ensure maximum interoperability and roaming on commercial cellular networks.

    Response: See the response to Comment #2 above.

    Comment #5: A few commenters recommended that the application of this provision be performed in full conformance with the recommendation and guidelines on open, non-proprietary, commercially available standards found in the Section 4.1.8 of the Interoperability Board Report.

    Response: FirstNet acknowledges the comment and believes its interpretations of 47 U.S.C. 1426(b)(2)(B) are consistent with the relevant Sections of the Interoperability Board Report.13

    13See Interoperability Board, Recommended Minimum Technical Requirements to Ensure Nationwide Interoperability for the Nationwide Public Safety Broadband Network (“Interoperability Board Report”) (May 22, 2012), available at http://apps.fcc.gov/ecfs/document/view?id=7021919873.

    Comment #6: One commenter suggested that characterizing satellite connectivity as equipment “for use on” the network could result in requirements that constrict use of satellite connectivity as a network element, as opposed to an end-user device.

    Response: FirstNet acknowledges the comment and will take the suggestion into consideration as it further delineates which specific equipment falls within the network components constituting the core network and RAN.

    Comment #7: One commenter recommended that FirstNet should more clearly articulate what it means by “connectivity” so that interested parties can meaningfully evaluate whether the proposed scope of the requirement is reasonable and consistent with the Act's requirements.

    Response: FirstNet, as stated in the Second Notice, interprets “connectivity” for the purposes of this provision as being satisfied by applying the requirements of 47 U.S.C. 1426(b)(2)(B) to only those parameters necessary to maintain interoperability and operational capability (i.e., “connectivity”) with the NPSBN as detailed in the Interoperability Board Report or otherwise in FirstNet network policies.

    Comment #8: One commenter suggested that FirstNet, the National Institute of Standards and Technology (“NIST”), and the FCC should work to ensure that conformity with open, non-proprietary, commercially available standards—such as those developed by the 3rd Generation Partnership Project—is a prerequisite to appearing on the list of certified equipment that the Act instructs to be developed by NIST. The commenter also stated that NIST, FirstNet, and the FCC should work together to ensure rigorous interoperability verification when developing the list.

    Response: FirstNet acknowledges the comment and intends to coordinate with NIST and the FCC as required by the Act.

    Comment #9: Several commenters stated that the definition of equipment, or its interoperability requirements, should not preclude commercially developed and potentially legally protected materials, such as existing operating systems, from being acceptable platforms for accessing applications and connecting to the NPSBN, but rather, innovation and existing capabilities should be encouraged among the vendor community to reduce device costs and speed to deployment, so long as interoperability among various devices remains.

    Response: FirstNet believes its interpretations do not preclude or hinder existing operating systems from being acceptable platforms for accessing applications and connecting to the NPSBN so long as these systems meet the relevant requirements of 47 U.S.C. 1426(b)(2)(B). Specifically, FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying these requirements to only those parameters necessary to maintain interoperability (i.e., “connectivity”) with the NPSBN, which are included in the Interoperability Board Report or otherwise in FirstNet network policies. In reaching this conclusion, we recognized that in order for innovation to bring forth improved products for the NPSBN, and for FirstNet and public safety entities to benefit from competition, product differentiation must be allowed to thrive. However, such differentiation must be balanced with the interoperability goals of the Act. Thus, certain technical attributes of the network must be met by the equipment described pursuant to 47 U.S.C. 1426(b)(2)(B), but other equipment attributes may be left to individual vendors to develop.

    Comment #10: One commenter stated that attributes and features of a particular product should, to the maximum extent possible, be traceable to a set of standard specifications.

    Response: See the response to Comment #8 above.

    B. FirstNet Network Policies Network Policies

    Under the Act, FirstNet is tasked with developing “network policies” in carrying out various obligations related to its mission to ensure the establishment of the NPSBN.14 In particular, FirstNet must develop RFPs that appropriately address certain specified matters regarding building, operating, and maintaining the NPSBN, along with four other sets of policies covering technical and operational areas.15 In addition to items related to the RFPs, FirstNet must develop policies regarding the technical and operational requirements of the network; practices, procedures, and standards for the management and operation of the network; terms of service for the use of the network, including billing practices; and ongoing compliance reviews and monitoring.16 Taken as a whole, these policies, including the elements of the RFPs, form operating parameters for the NPSBN, addressing, for example, how the FirstNet core network will connect and operate with the RANs to ensure interoperability.

    14See 47 U.S.C. 1426(c)(1).

    15See id.

    16 47 U.S.C. 1426(c)(1).

    The Act does not expressly state whether only FirstNet, or both FirstNet and a State assuming RAN responsibilities, must follow the network policies required pursuant to 47 U.S.C. 1426(c)(1). Rather, the Act only refers to the “nationwide public safety broadband network” or the “network,” without expressly indicating whether such State RANs are included in the term. Thus, given the provisions of the Act, the Interoperability Board Report, the overall interoperability goals of the Act, and the effect on interoperability of not having the network policies apply to States assuming RAN responsibilities, FirstNet makes the following conclusions relating to the nature and application of the network policies developed pursuant to 47 U.S.C. 1426(c)(1) to both FirstNet and States assuming RAN responsibilities:

    1. FirstNet concludes that the items listed in 47 U.S.C. 1426(c)(1)(A) relating to RFPs are “policies” for purposes of 47 U.S.C. 1426(c)(2) and as the term is generally used in 47 U.S.C. 1426(c).

    2. FirstNet concludes that the network policies developed pursuant to 47 U.S.C. 1426(c)(1) apply to all elements of the network, including RANs deployed by individual States pursuant to 47 U.S.C. 1442(e)(3).

    3. FirstNet concludes that a required aspect of a State's demonstrations of interoperability to both the FCC and NTIA under 47 U.S.C. 1442(e)(3), is a commitment to adhering to FirstNet's network policies implemented under 47 U.S.C. 1426(c).

    4. FirstNet concludes that it could require compliance with network policies essential to the deployment and interoperable operation of the network for public safety in all States as a condition of entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II).

    Analysis of and Responses to Comments on Network Policies RFPs Items as Network Policies

    Summary: The majority of commenters agreed with FirstNet's interpretation that the topics listed in 47 U.S.C. 1426(c)(1) pertaining to RFPs, while not typically thought of as policies, nonetheless are ” network policies” for purposes of 47 U.S.C. 1426(c)(1).

    Comment #11: One commenter disagreed that the RFP-related items should be considered policies, but acknowledged that they would qualify as such pursuant to the Act as written.

    Response: FirstNet acknowledges the comment, but believes its interpretation of this provision as recognized by the commenter, is correct pursuant to the Act.

    Applicability of Network Policies to States Assuming RAN Responsibilities

    Summary: The vast majority of commenters also agreed with FirstNet's interpretation that the network policies pursuant to 47 U.S.C. 1426(c) apply regardless of whether FirstNet deploys the RAN or the State takes on that responsibility. These commenters agreed with FirstNet's assessment that universal application of network policies, irrespective of who deploys the RAN, is critical to maintaining interoperability throughout the NPSBN.

    Comment #12: A few commenters disagreed with FirstNet's interpretation that all States must comply with FirstNet's network policies, generally arguing that States assuming responsibilities for deploying the RAN are not compelled pursuant to the Act to comply with FirstNet's network policies and thus should have the authority to develop their own policies.

    Response: FirstNet disagrees and believes the network policies required to be developed pursuant to 47 U.S.C. 1426(c)(1) to be applicable to the entire NPSBN, including a RAN whether such RAN is deployed by FirstNet or a State.

    First, the plain language of the Act suggests that network policies developed pursuant to 47 U.S.C. 1426(c)(1) are intended to apply to all elements of the NPSBN. The Act defines the term “nationwide public safety broadband network” to mean the nationwide, interoperable public safety network described in 47 U.S.C. 1422.17 Accordingly, the Act, in 47 U.S.C. 1422(b), expressly defines the NPSBN as initially consisting of two primary components: The core network and the RAN. Although generally describing the elements and scope of these network components, the Act does not exclude or otherwise indicate that a State-deployed RAN is not part of the NPSBN. Thus, the plain language of the Act appears to indicate that a RAN, regardless of what entity actually deploys it, is a component of the overall NPSBN. Consequently, it is reasonable to interpret that a RAN, as a component of the network, would be subject to all network requirements, regardless of what entity is responsible for deploying the RAN, including policies that apply to the network as a whole.

    17 47 U.S.C. 1401(21).

    Second, the Act mandates that FirstNet, in carrying out the requirements of the Act, must establish network policies, but does not authorize any other entity to establish such policies.18 Specifically, FirstNet must develop the following policies: Those related to technical and operational requirements of the network; practices, procedures, and standards for the management and operation of such network; terms of service for the use of such network, including billing practices; and ongoing compliance reviews and monitoring of the management and operation of the network and practices and procedures of entities operating on the network and the personnel using the network. 19 This list of network policies described in 47 U.S.C. 1426(c)(1) does not expressly contemplate that a separate set of network policies would be developed or apply to a RAN deployed by a State. In fact, the Act, by requiring FirstNet to consult with States on various matters, including network policies, suggests that the opposite conclusion is likely the case. For example, as stated in the Second Notice, the Act did not differentiate between States accepting the FirstNet RAN plan and States assuming RAN responsibility in the provisions of 47 U.S.C. 1426(c)(2) requiring consultation with States on the network policies of 47 U.S.C. 1426(c)(1). Consequently, such consultations presumably would not be required for States assuming RAN responsibility if the policies in question did not apply to the RAN in that State.

    18See 47 U.S.C. 1426(c)(1).

    19See id.

    Third, among other network considerations, the Act describes the process a State seeking to conduct it own RAN deployment must follow in order to receive approval of an alternative RAN plan, a grant for RAN construction, and authority to seek a spectrum capacity lease with FirstNet. These considerations include, among other things, a demonstration of initial and ongoing interoperability with the NPSBN.20 From a practical perspective, such interoperability will largely depend, as is the case with FirstNet's deployed core network and RANs, on compliance with the network policies developed pursuant to 47 U.S.C. 1426(c)(1). Thus, a necessary aspect of a State's demonstration of interoperability to both the FCC and NTIA is a commitment to adhering to FirstNet's network policies. This could be particularly important because such policies will likely evolve over time as the technology, capabilities, and operations of the network evolve, and an alternative interpretation could frustrate the interoperability goals of the Act.

    20 47 U.S.C. 1422(e)(3).

    In addition, States assuming RAN responsibilities must demonstrate “comparable security, coverage, and quality of service to that of the [NPSBN].” 21 FirstNet's policies will establish requirements for security, coverage, and quality of service standards for the NPSBN, and thus States seeking to assume State RAN responsibilities would need to demonstrate “comparable” capabilities to those specified in these policies. As stated above, however, the Act requires FirstNet to engage in consultation with States regarding the network policies pursuant to 47 U.S.C. 1426(c)(1), so while FirstNet will establish such policies, States will have meaningful opportunities to help inform the establishment of such policies.

    21 47 U.S.C. 1442(e)(3)(D)(iii).

    Comment #13: A few commenters recognized the importance of interoperability, but suggested that States taking on RAN responsibilities should have the flexibility to tailor their policies to their unique circumstances unless it affected interoperability.

    Response: FirstNet understands the unique needs of the States and believes the Act, through its extensive consultation requirements and processes regarding network policies developed pursuant to 47 U.S.C. 1426(c)(1), provides a vehicle for States to have substantial opportunities to inform such policies and, as is discussed in the Second Notice, FirstNet will continue to work cooperatively with States in their establishment.

    Comment #14: One commenter advocated that, in order to avoid imposing unnecessary burdens, States assuming RAN responsibilities should be required to comply with only those policies necessary to maintain interoperability.

    Response: FirstNet agrees that the primary goal of the Act is to ensure the interoperability of the NPSBN, and, accordingly, paramount among network policies are those that assist in meeting this requirement. However, the Act requires FirstNet to establish policies for other elements critical to establishing the NPSBN, such as those that govern the technical and operational requirements of the network.22 For example, such policies, as contemplated in the Act, will likely provide the criteria and processes for the implementation and monitoring of vital network features, including those related to priority and preemption or network security, both of which are essential to public safety. To that end, it is critical that public safety be afforded the same features, functionality, and level of service from State to State, particularly when there is a need to cross State boundaries in the case of an incident, to ensure no impact to vital communications. The Act's requirement pursuant to 47 U.S.C. 1426(c)(1) for the implementation of network policies, we believe, was reasonably intended to apply to States assuming RAN responsibilities to ensure neither the public's safety nor the network are put at risk. Accordingly, FirstNet disagrees that States assuming RAN responsibilities should be required to comply with only those network policies necessary to maintain interoperability.

    22See 47 U.S.C. 1426(c)(1).

    Compliance With FirstNet Network Policies as an Element To Demonstrating Interoperability

    Summary: A majority of commenters agreed with FirstNet's related interpretation that adherence to FirstNet's network policies would be an important factor in demonstrating interoperability pursuant to 47 U.S.C. 1442(e)(3) by a State that is seeking to assume RAN responsibilities. Several of these commenters focused on the need for uniformity and consistency in policies to ensure interoperability throughout the lifetime of the network. A few commenters disagreed with this approach, however, suggesting that the interpretation was not supported by the Act.

    Comment #15: One commenter contended that the Act neither expressly nor implicitly makes such a pronouncement regarding a State's interoperability demonstration, expressed concern that the interpretation could compromise a State's ability to have control over deployment of its RAN, and proposed instead that a State seeking to assume responsibility for deploying the RAN be required to demonstrate both current and future interoperability capability, but not necessarily be subject to FirstNet's network policies.

    Response: See the responses to Comment #1 and Comment #2 above.

    Compliance With FirstNet Network Policies as a Condition To Obtaining a Spectrum Capacity Lease

    Summary: Commenters largely agreed with FirstNet's conclusion that it could require compliance with certain network policies essential to the deployment and interoperable operation of the NPSBN as a condition to entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II). One commenter, for instance, encouraged FirstNet to use all the tools at its disposal to require compliance with network policies to ensure the central goal of the Act of creating a sustainable, interoperable, nationwide network. Another commenter noted that, as the license holder of the spectrum, FirstNet has the right to take measures that ensure the nationwide interoperability of the network. A few commenters disagreed with FirstNet's interpretation that compliance with FirstNet's network policies could be a condition within a State's eventual spectrum capacity lease with FirstNet, challenging FirstNet's authority pursuant to the Act to impose such a condition.

    Comment #16: One commenter argued that the only limitations allowed to be placed on access to a spectrum capacity lease are those expressly enumerated in 47 U.S.C. 1442(e)(3)(D), indicating that compliance with FirstNet's network policies are not explicitly included in those requirements.

    Response: FirstNet disagrees and notes that as the licensee of the spectrum it must ultimately determine the terms and conditions of a spectrum capacity lease entered into with a State assuming responsibility for RAN deployment.

    Comment #17: One commenter contended that requiring compliance with network policies as a condition to obtaining a spectrum capacity lease was a way for FirstNet to gain concessions not required pursuant to the Act from a State seeking to take on responsibilities for deploying the RAN.

    Response: FirstNet recognizes the Act strikes a balance between establishing a nationwide network and providing States an opportunity, under certain conditions, to deploy a RAN within their respective State boundaries. One of those conditions explicitly stated within the Act is for the State to obtain a spectrum capacity lease from FirstNet.23 Accordingly, FirstNet intends to act in good faith with each of the States to explore “win-win” solutions with States desiring to assume RAN responsibilities consistent with all requirements in the Act mandating the deployment of an interoperable nationwide broadband network for public safety.

    23See 47 U.S.C. 1442(e)(3)(C)(iii)(II).

    Comment #18: A few commenters did not disagree with FirstNet's interpretation, but noted the importance of providing clarity and transparency to the spectrum capacity leasing process.

    Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any processes or requirements related to a spectrum capacity lease.

    C. A State's Opportunity To Assume Responsibility for RAN Deployment and Operations Final Interpretations Regarding the Presentation of a State Plan and the Completion of Request for Proposal Process

    The Act requires FirstNet to present its plan for a State to the Governor “[u]pon the completion of the request for proposal process conducted by FirstNet for the construction, operation, maintenance, and improvement of the [NPSBN] . . . .” 24 The Act does not further define the specific stage in the RFP process that would constitute being “complete.”

    24 47 U.S.C. 1442(e).

    FirstNet, in accordance with its analysis in the Second Notice, makes the following conclusions regarding the completion of the RFP process and the definition of completion:

    1. FirstNet interprets 47 U.S.C. 1442(e) to merely require completion of the RFP process for a particular State, rather than the nation as a whole, prior to presentation of the plan to such State, assuming that FirstNet can at that stage otherwise meet the requirements for presenting a plan (and its contents) to such State.

    2. FirstNet concludes that “completion” of the RFP process occurs at such time that FirstNet has obtained sufficient information to present the State plan with the details required pursuant to the Act for such plan, but not necessarily at any final award stage of such a process.

    Analysis of and Responses to Comments on the Completion of the Request for Proposal Process

    The majority of respondents agreed with FirstNet's interpretation that, so long as FirstNet is able to provide the contents of, and meet the Act's requirements for presenting, a plan to the State, FirstNet need only complete the RFP process for the specific State rather than the nation as a whole.25 In addition, most commenters agreed that “completion” was not necessarily a final award stage of any RFP process, but simply the stage at which FirstNet has obtained sufficient information to present the State plan and its required details to the Governor. Commenters generally understood the complex economies of scale determinations that must be undertaken by potential offerors and agreed that, depending on final determinations by the States regarding their decision to assume responsibility to deploy their own RAN, such final award stages may come after the State plan presentation.

    25 We note that that the FCC may provide further guidance with respect to the approval process for an alternative plan pursuant to 47 U.S.C. 1242(e)(3).

    Several respondents disagreed, however, arguing that the RFP process must be completed nationwide prior to any State plan being presented to the Governor or his designee, while other commenters provided recommendations for implementing these interpretations.

    Comment #19: Two commenters were concerned that FirstNet intended to issue individual RFPs for each State, and that such an approach would deprive FirstNet and NTIA of critical information and prevent States from making informed decisions. One commenter stated that whether FirstNet chooses to conduct a single nationwide RFP for the entire network, discrete nationwide RFPs for categories of network procurements, or multiple State or regional RFPs, FirstNet should complete all of its planned RFP processes across the nation before presenting individualized State plans.

    Response: FirstNet disagrees that all RFP processes across the nation must be completed prior to presenting a single State plan, and believes that requiring such a process would have the potential to restrict the number and kind of RFPs that FirstNet issues, and could unduly delay the deployment of the NPSBN to the injury of public safety stakeholders and potential partner(s).

    The Act provides FirstNet with flexibility in deciding how many and what type of RFPs to develop and issue by not specifying any such required number or type.26 As discussed in the Second Notice, if 47 U.S.C. 1426 is read to require all States to await the completion of all such RFP processes, FirstNet would likely constrain the range of RFPs it might otherwise conduct to avoid substantial delays nationwide, and in doing so constrain its ability to reflect the input from consultative parties as required by the Act.27

    26See generally 47 U.S.C. 1426(b).

    27See 47 U.S.C. 1426(c)(2)(A).

    Additionally, by requiring FirstNet to wait until all RFP processes are fully complete across the nation prior to issuing a State plan, a single protest regarding a single State or region could substantially delay implementation of the network in many or most States contrary to the Act's emphasis on “speed[ing] deployment of the network.” 28

    28See 47 U.S.C. 1426(b)(1)(C).

    Comment #20: Another commenter focused on the potential for diminished spectrum value were FirstNet to issue individual State RFPs and was particularly concerned that there may be a lack of respondents to the RFPs in rural States with less overall spectrum value than those States that have larger, metropolitan areas within their respective borders. This commenter asserted that the only way to meet the Act's requirements to “build out the NPSBN to cover rural America” was to either partner with a large number of rural providers or to have a nationwide partner.

    Response: FirstNet acknowledges the comment and will consider it, as appropriate, in the development of any processes or requirements related to RFP(s) regarding the build out of the NPSBN.

    Comment #21: An additional commenter was concerned that if complete nationwide data from the RFP process is not available to a State when FirstNet presents the State plan, any alternative plan developed by the State could not be fairly evaluated for its “ `cost-effectiveness' based on a nationwide analysis.”

    Response: FirstNet disagrees that full nationwide data is necessary for a State to develop an alternative plan. FirstNet interprets that, in order to present a State plan, FirstNet must have obtained sufficient information to present the State plan with the details required pursuant to the Act for such a plan. The details of the State plan, as discussed in the Second Notice, must include sufficient information to enable NTIA to undertake comparisons of cost-effectiveness, security, coverage, and quality of service—exactly the type of cost-effectiveness comparisons about which the commenter is concerned. Therefore, FirstNet believes its final interpretation regarding what constitutes completion of the RFP process necessarily encapsulates and allays the commenter's concerns.

    Comment #22: Several commenters, while agreeing with FirstNet's legal interpretations that the RFP process is considered complete when FirstNet has enough information to present a State plan for the specific State in question, also suggested that FirstNet try to at least provide State plans at a similar time to members of the surrounding FEMA region due to the close coordination that must take place within FEMA region States.

    Response: FirstNet acknowledges this comment and will consider it, as appropriate, as it develops the process for the presentation of State plans.

    Final Interpretations Regarding the Content of a State Plan

    47 U.S.C. 1442(e)(1) requires that FirstNet provide to the Governor of each State, or a Governor's designee, “details of the proposed plan for build out of the [NPSBN] in such State.” Section 1442 does not include any express guidance as to the “details of the proposed plan” that must be provided.

    Other provisions of the Act, however, provide some guidance in this regard and include provisions relating to the outcomes of the RFP process as well as the ability for NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service. In accordance with the structure and purposes of the Act, FirstNet makes the following interpretations regarding the content of a State plan:

    1. FirstNet concludes that the details of the proposed State plan pursuant to 47 U.S.C. 1442(e)(1)(B) should include at least certain outcomes of the RFP process.

    2. FirstNet concludes that the FirstNet plan must contain sufficient information to enable NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service.

    Analysis of and Responses to Comments on the Content of a State Plan

    The majority of commenters agreed with FirstNet's interpretations regarding the content of a State plan. Many agreed with FirstNet that its interpretations regarding the content of a State plan constituted only the minimum details that FirstNet should provide and that FirstNet may decide to provide more specifics as it deems necessary. A few commenters, while generally agreeing with FirstNet's conclusions, suggested additional details that FirstNet should take into consideration and provide upon the presentation of a State plan.

    Comment #23: One commenter suggested that any State plan must also contain information and assumptions regarding the core network, including capacity, accessibility, and interoperability, for a Governor to truly have enough information at hand to make an informed decision.

    Response: FirstNet agrees that certain information, as determined by FirstNet, regarding the core network should be included in the State plan in order to enable the FCC and NTIA to effectively evaluate and compare the State's alternative RAN plan should the State decide to deploy its own RAN and not participate in the FirstNet-proposed State plan pursuant to 47 U.S.C. 1442(e)(2).

    Comment #24: Several commenters stated that any and all information, data, and analysis that FirstNet uses to develop the State plan must be fully and completely available for a State to completely understand all decisions that went into the State plan and make an informed decision.

    Response: FirstNet disagrees and notes that the Act does not require that such information be provided in a State plan.29

    29See 47 U.S.C. 1442(e)(1).

    Governor's Role in the State Plan Process

    47 U.S.C. 1442(e)(2), entitled “State decision,” establishes the Governor's role in choosing how the State will proceed regarding FirstNet deployment. FirstNet makes the following interpretations regarding the Governor's role in the State plan process and the ability of FirstNet and the States to implement additional State RAN deployment:

    1. FirstNet concludes that the decision of the Governor pursuant to 47 U.S.C. 1442(e)(2), for purposes of the Act, is binding on all jurisdictions within such State, and that such a decision must be made for the entire State in question and not simply a subset of individual jurisdictions.

    2. FirstNet concludes that FirstNet and a State could agree that FirstNet and the State (or sub-State jurisdictions) work together to permit implementation of added RAN coverage, capacity, or other network components beyond the State plan to the extent the interoperability, quality of service, and other goals of the Act are met.

    Analysis of and Responses to Comments on the Governor's Role in the State Plan Process

    Summary: The majority of commenters agreed that the Act specifies the Governor as the State official who makes a final determination regarding FirstNet deployment in the State and agreed that the Governor's decision should be binding on all jurisdictions within the State. Commenters also generally agreed with FirstNet's interpretation that FirstNet and States could work together to potentially expand RAN coverage, capacity, or other network components so long as the goals of the Act were met. A few commenters, as described below, expressed some general concerns about a Governor's authority to make a decision related to RAN deployment within the State.

    Comment #25: Several commenters detailed, while agreeing with FirstNet's interpretation that the ultimate decision regarding FirstNet deployment in the State was that of the Governor, that many States may require legislative approval or coordination between political subdivisions or counties and the State before the Governor is able to make such decisions for the State.

    Response: FirstNet acknowledges the comment and believes regardless of whether a Governor may need to seek certain approvals prior to making a decision for the State, pursuant to the Act, the final State decision regarding a FirstNet-proposed State plan continues to ultimately rest with the Governor.30

    30See 47 U.S.C. 1442(e)(2).

    Comment #26: One commenter suggested that plans for each State should be developed after appropriate consultation with tribal jurisdictions in order for the plan to be binding on tribal jurisdictions. The commenter stated that in the event of a tribal/State dispute, approval for the State plan should not be delayed for the rest of the State and coverage or level of service for the tribal jurisdiction could be “amended to the FirstNet or Commission approved plan.”

    Response: Tribal jurisdictions are expressly included as part of the statutorily mandated consultation process.31 The Act specifies that such consultation regarding the development of State plans must occur between FirstNet and the State single point of contact (“SPOC”).32 FirstNet has endeavored, and will continue, to seek input in accordance with the Act from tribal jurisdictions in an effort to ensure that their needs are reflected in the State plan ultimately delivered to a Governor. While it is not entirely clear what the commenter means by having tribal coverage levels be “amended to the FirstNet or Commission approved plan,” FirstNet does agree that there may be opportunities for the State and FirstNet to agree to have FirstNet and the tribal jurisdictions work directly with one another to provide added RAN coverage, capacity, or other network components as necessary beyond the State plan so long as the interoperability, quality of service, and other goals of the Act are met.

    31See 47 U.S.C. 1426(c)(2).

    32See id.

    Comment #27: One commenter stated that FirstNet wrongly concludes that a Governor's decision would prevent a city or county within the State from deploying its own RAN. The commenter asserts that if a jurisdiction chooses to fund and build its own RAN, it should be allowed to do so and mentions that, regardless, “the jurisdiction would be within its rights to seek licensure and operate a network within its jurisdiction.”

    Response: FirstNet disagrees with the commenter's assertions. 47 U.S.C. 1442(e)(2) clearly states that “the Governor shall choose whether to participate in the deployment of the [NPSBN] as proposed by [FirstNet] or conduct its own deployment of a [RAN] in such State.” 33 As discussed in the Second Notice, such sub-State level decisions, if permitted, could create potential islands of RANs which do not meet the interoperability and other goals of the Act regarding a NSPBN.34 The Act does not authorize anyone other than the Governor to make a respective State's decision regarding the FirstNet-proposed State plan and, in fact, further supports the conclusion of a single decision point through the creation of a single point of contact for each State, directly appointed by the Governor.35

    33 47 U.S.C. 1442(e)(2)(1).

    34See 47 U.S.C. 1422(a).

    35See 47 U.S.C. 1442(d).

    In addition, the Act grants FirstNet the nationwide license for the 700 MHz D block spectrum and existing public safety broadband spectrum 36 and requires a “State” (not individual sub-State jurisdictions) that seeks to assume RAN responsibilities to “submit an alternative plan” to the FCC and apply to NTIA to lease spectrum capacity from FirstNet.37 Nowhere does the Act contemplate sub-State jurisdictions operating their own RANs using FirstNet's licensed spectrum—it is only a State that may develop an alternative plan for submission through the section 1442(e)(3)(C) approval process for eventual negotiation of a spectrum capacity lease with FirstNet.

    36See 47 U.S.C. 1421(a).

    37See 47 U.S.C. 1442(e)(3).

    Comment #28: One commenter suggested that, while agreeing with FirstNet's conclusion that it could work with the State to permit State or sub-State implementation of added RAN coverage, capacity, or other network components beyond the FirstNet plan, FirstNet should not enter any agreement on a Statewide or sub-State basis without the concurrence of the State, or otherwise in a manner that would limit or restrict the Governor's discretion and rights with regard to the State decision process pursuant to the Act.

    Response: FirstNet agrees with this comment and, as indicated in the Second Notice, would work with the State prior to any such agreements.

    Final Interpretations Regarding the Timing and Nature of a State's Decision

    The Act provides that the Governor must make a decision “[n]ot later than 90 days after the date on which the Governor of a State receives notice pursuant to [section 1442(e)(1)].” 38 As noted in the Second Notice, such phraseology raises the question as to whether a Governor could make such a decision prior to receiving the notice contemplated pursuant to section 1442(e)(1). Additionally, if the Governor decides to participate in the State plan, the Act does not specifically require the Governor to provide notice of the State's decision to participate in the FirstNet-proposed network to FirstNet, or any other parties.39

    38See 47 U.S.C. 1442(e)(1).

    39See 47 U.S.C. 1442(e)(3)(A).

    Finally, if the Governor decides to assume RAN responsibilities on behalf of the State and create an alternative plan for deployment of the RAN within its borders, the Act provides that “[u]pon making a decision . . . the Governor shall notify [FirstNet], the NTIA, and the [FCC] of such decision.” 40

    40Id.

    After taking into consideration the analysis contained in the Second Notice and its associated comments, FirstNet makes the following interpretations regarding the timing and nature of a State's decision:

    1. FirstNet concludes that the Governor must await notice and presentation of the FirstNet plan prior to making the decision pursuant to 47 U.S.C. 1442(e)(2).

    2. FirstNet concludes that a State decision to participate in the FirstNet-proposed deployment of the network in such State may be manifested by a State providing either (1) actual notice in writing to FirstNet within the 90-day decision period or (2) no notice within the 90-day period established pursuant to 47 U.S.C. 1442(e)(2).

    3. FirstNet interprets the requirement within 47 U.S.C. 1442(e)(3) stating that the notice is to be provided to FirstNet, NTIA, and the FCC as being an immediate (i.e., same day) requirement.

    Analysis of and Responses to Comments Regarding the Timing and Nature of a State's Decision

    The majority of commenters agreed with FirstNet's interpretations regarding the timing and nature of a State's decision. Several commenters affirmed that the Act requires certain findings and comparisons to be made during the process under which a State assumes RAN responsibility and that such a comparison cannot be conducted until the FirstNet plan has been presented.

    Some commenters, however, disagreed with FirstNet, stating that a Governor is free to make a decision at any time and should be allowed to make the decision to assume responsibility for the RAN early if the State so chooses, as well as be allowed the full 90 days to inform FirstNet, NTIA, and the FCC of the State's decision regardless of when a decision is actually made within a State. Additionally, some commenters asked that the Governor be allowed time beyond the 90-day limit to make such a decision. Others, while agreeing with FirstNet's legal conclusions, suggested that FirstNet try to provide the States with as much information as possible prior to the official 90-day clock to assist the Governors with their decision. Finally, some commenters disagreed with FirstNet's conclusion that only an affirmative opt-out notice would result in a State not accepting the State plan presented by FirstNet.

    Comment #29: Several commenters stated that FirstNet has no authority to instruct a Governor on his or her decision-making process. These commenters stated that FirstNet should not become an obstacle requiring States to wait to make a decision to assume RAN responsibility.

    Response: To clarify, FirstNet acknowledges that it has no authority to instruct a Governor on his or her specific decision-making process, but rather only to interpret the requirements with respect to the process for submitting that ultimate decision as provided in the Act.

    The Act provides that “[n]ot later than 90 days after the date on which the Governor of a State receives notice pursuant to [section 1442(e)(1)], the Governor shall choose whether to (A) participate in the deployment of the [NPSBN] as proposed by [FirstNet] or (B) conduct its own deployment of a [RAN] in such State.” 41 While many commenters seemed to focus on the “not later than 90 days” phrase at the beginning of the sentence and assert this to mean that a Governor may choose to assume RAN responsibility at any time between the present day up to the 90-day time limit, the decision is expressly dependent on FirstNet having first provided the Governor the requisite notice pursuant to section 1442(e)(2).

    41 47 U.S.C. 1442(e)(2) (emphasis added).

    For instance, it is logical to conclude that a Governor could wait the full 90 days after he or she receives notice of the State plan before making the decision to assume RAN responsibility and notify the proper parties. Similarly, a Governor could wait, for example, only 40 days after he or she receives notice, or even make the decision required pursuant to section 1442(e)(2) and notify the proper parties the same day as receiving notice of the State plan. By using the language “after the date on which the Governor of a State receives notice,” Congress indicated its intent that the State decision would occur after receipt of the notice from FirstNet. Thus, for purposes of the formal State decision pursuant to section 1442(e)(2), the Governor must wait until the FirstNet-proposed State plan is presented before he or she notifies FirstNet, NTIA, and the FCC of the State's decision to assume RAN responsibility.

    Furthermore, it would be counterproductive to notify FirstNet, NTIA, and the FCC of the State's decision earlier than presentation by FirstNet of the State plan as that would necessarily start the 180-day clock regarding submission of an alternative plan without there being any FirstNet proposed plan against which the FCC and NTIA could evaluate and compare the State's alternative plan.42 As such, these entities would be unable to fulfill their statutory responsibilities related to approving or rejecting the alternative plan as they would have insufficient information to make the necessary determinations as required under the Act.

    42See 47 U.S.C. 1442(e)(3)(C)-(D).

    Comment #30: Some commenters suggested that FirstNet should work with States where there are opportunities for early deployment and allow the State to amend their alternative plans at a later stage in the process as needed once the State plan is presented by FirstNet, the goal of which would be to allow the States to move forward with deployment as soon as the State was ready.

    Response: The Act explicitly requires a sequential process to be followed prior to any FirstNet network deployment taking place.43 It is not until the State has decided to participate in FirstNet's proposed State plan or has progressed through the entire alternative plan process provided in section 1442(e)(3) that any network deployment may begin. To proceed through the process required under section 1442(e)(3)(C)-(D), the FCC and NTIA must have access to the FirstNet-proposed State plan in order to compare it to the State's alternative plan.44

    43See 47 U.S.C. 1442(e).

    44See 47 U.S.C. 1442(e)(3)(C)-(D).

    The Act does not contemplate any type of retroactive amendment process within section 1442(e)(3) and requires comparisons and evaluations to take place between the FirstNet-proposed State plan and the State's alternative plan that simply cannot occur without the FirstNet proposed State plan first being presented to the Governor as required by the Act. Without a FirstNet plan having been presented, the State's premature decision would not enable the FCC to make the assessments required to approve the State's alternate plan, or if such plan is approved, enable NTIA to review and determine whether to approve an application for grant funds and to seek a spectrum capacity lease from FirstNet.

    Comment #31: One commenter stated that FirstNet should make clear that Governors are not prohibited from beginning to develop alternative plans now and that the development of alternative plans in advance could also assist Governors in making informed choices regarding whether to assume RAN responsibility or participate in the FirstNet State plan.

    Response: There is no statutory provision preventing States from using their own funds to begin developing alternative plans.

    Comment #32: A few commenters asserted that the State must respond in writing with its decision, regardless of the 90-day time limit prior to FirstNet taking any action.

    Response: As stated in the Second Notice, the Act does not require the Governor of a State to provide notice of the State's decision to participate in FirstNet's proposed State plan pursuant to section 1442(e)(2)(A) to FirstNet, or any other parties. Rather, notice is only required should the Governor of a State decide that the State will assume responsibility for the buildout and operation of the RAN in the State.45

    45See 47 U.S.C. 1442(e)(3)(A).

    Taking into consideration the Act's emphasis on the need “to speed deployment” of the network for public safety,46 the requirement for specific required affirmative notice for a decision to assume RAN deployment and operation, and no such explicit affirmative notice required for a decision to accept the proposed FirstNet plan, FirstNet concludes that notice is not required within the 90-day period established pursuant to section 1442(e)(2) in order for a Governor to choose to participate in the FirstNet-proposed State plan.

    46See, e.g., 47 U.S.C. 1426(b)(1)(C); see also, e.g., 47 U.S.C. 1426(b)(3).

    Comment #33: Several commenters asked that States be given longer than the 90-day time limit established by the Act due to the complexity of the decision itself and the decision process that many Governors may have to go through prior to making a final determination regarding whether to choose to participate in the FirstNet-proposed State plan or conduct the deployment of the State's own RAN. In addition, some commenters expressed frustration that FirstNet will have several years to decide its approach with the States, whereas the States must provide written notice of its intentions within 90 days.

    Response: FirstNet was created by Congress and is bound by the statutory language contained within the Act. The Act explicitly provides for a 90-day period following the presentation of the State plan for a Governor to choose to participate in the State plan as presented by FirstNet or choose to conduct its own deployment of a RAN within the State.47 FirstNet has no ability to change the plain language of the Act and therefore has no authority to extend the 90-day time period.

    47See 47 U.S.C. 1442(e)(2).

    Comment #34: Some commenters suggested that, while FirstNet is unable to provide the Governor with more time following the presentation of the FirstNet-proposed State plan, FirstNet should do everything in its power to provide the States with information that may be contained in the State plan as much in advance of the formal 90-day time clock as possible.

    Response: FirstNet acknowledges the comment and plans to continue to coordinate with the States through its ongoing consultation efforts to share details of the proposed State plans as such information comes available as part of the RFP process.

    The Nature of FirstNet's Proposed State Plan

    The Act pursuant to 47 U.S.C. 1442(e)(1) requires FirstNet to present a “plan” to the Governor, or to the Governor's designee, of each State. The Governor then must decide whether to participate in the deployment as proposed by FirstNet or to deploy the State's own RAN that interoperates with the NPSBN.48 While the presentation of such a plan is an important step in the deployment of the NPSBN, it is only one additional milestone within the ongoing relationship between FirstNet and the States, with significant collaboration between the parties still to take place prior to deployment.

    48See 47 U.S.C. 1442(e)(1)(B).

    Using the plain language of the Act, a “plan,” as defined by Oxford Dictionaries, is a “detailed proposal for doing or achieving something.” 49

    49See Oxford Dictionary of English (3 ed. 2014), http://www.oxforddictionaries.com/definition/english/plan (last visited Aug. 30, 2015).

    Nowhere does the Act use contract terminology, such as “offer,” “execute,” or “acceptance,” in relationship to the FirstNet plan. In fact, the Act speaks only to a Governor's decision to “participate” in the deployment as proposed by FirstNet.50 Accordingly, FirstNet makes the following conclusion regarding the nature of FirstNet's proposed State plan:

    50See 47 U.S.C. 1442(e)(2)(A).

    FirstNet concludes that the presentation of a plan to a Governor and his/her decision to either participate in FirstNet's deployment or follow the necessary steps to build a State RAN do not create a contractual relationship between FirstNet and the State.

    Analysis of and Responses to Comments Regarding the Nature of FirstNet's Proposed State Plan

    The majority of commenters agreed with FirstNet's conclusion that the presentation of the State plan and the Governor's decision to (or not to) participate in the plan do not constitute a contractual relationship between the parties. Several commenters expressed their sentiments that any network user fees associated with the network could not be binding on individual public safety entities at the time of the State plan because not all such fees will likely be known at the time a State plan is presented by FirstNet, and therefore a contract could not exist between the parties. Moreover, the vast majority of respondents agreed that it would not be until public safety entities actually subscribe to the NPSBN that contractual relationships would be established between the public safety entities themselves and FirstNet or the State, as applicable.

    Comment #35: Several commenters, while agreeing with FirstNet's interpretation that the plan does not constitute a contract, stated that any material alteration of the State plan by FirstNet, such as priority or timing of build-out, should also allow a State to similarly alter its decision that was based on the previous plan.

    Response: The Act does not provide for any mechanism whereby a Governor that decides to participate in the FirstNet-proposed State plan pursuant to 47 U.S.C. 1442(e)(2) can then reverse his or her decision for the State and choose to assume RAN responsibility at some unspecified point in the future. Once a Governor is presented with the FirstNet-proposed State plan, he or she then has 90 days with which to make the decision to participate in FirstNet's proposed plan or to choose to conduct its own State RAN deployment.51 Congress struck a balance in the Act between a State's right to conduct its own RAN deployment and FirstNet and its potential partner(s)' needs for certainty as network deployment begins nationwide. Both FirstNet and its ultimate network partner(s) must be able to rely on State decisions in order to effectively and efficiently plan the nationwide deployment of the NPSBN.

    51See 47 U.S.C. 1422(e)(2).

    FirstNet recognizes that after a Governor's decision, changes to the FirstNet State plan could arguably occur due to unforeseen circumstances or even based on further agreements between FirstNet and the impacted State. FirstNet intends to continue to coordinate closely with each State as it plans the deployment in accordance with the State plan to help ensure such plans meet the needs of public safety. It is important to note that as there is no mandate in the Act that public safety purchase services from FirstNet, FirstNet must offer an attractive value proposition to incentivize adoption of the NPSBN by its public safety stakeholders.

    Comment #36: One commenter expressed that the Act, specifically 47 U.S.C. 1442(e)(3)(C)-(D), requires that the State demonstrate specific criteria in its alternative plan in order to be approved by the FCC and NTIA and to enter a spectrum capacity lease with FirstNet. Therefore, while the commenter agrees that the FirstNet-proposed State plan does not constitute a contract between the State and FirstNet, the commenter believes that the State should expect certainty regarding these specific criteria for an alternative plan. Without such a guarantee, the commenter asserts that States will not be provided with the information needed to make an appropriate RAN deployment decision.

    Response: FirstNet, as discussed in the Second Notice, intends to include at least certain outcomes of the RFP process as well as sufficient information to enable NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service.

    Comment #38: Several commenters disagreed that FirstNet's State plan does not form a contract between FirstNet and the State. A few commenters argued that FirstNet's presentation of a State plan to a State constituted an “offer” to the Governor, with “acceptance” of such offer occurring when the Governor chooses to participate in the offered plan. One commenter suggested that FirstNet's State plan in essence creates an “unconscionable contract of adhesion” by not containing what the commenter considered to be “material elements of the contract.” Furthermore, these commenters contended that without the State plan presentation and acceptance being considered a binding contact, the State cannot obtain the necessary certainty with which to make an informed decision pursuant to 47 U.S.C. 1442(e)(2).

    Response: FirstNet disagrees with this comment and concludes, as discussed in the Second Notice, that the presentation of a proposed plan to a State from FirstNet does not create any type of contract. First, the applicable provisions of the Act do not use, nor make any reference to, any contract terminology in describing the State plan, thus suggesting that Congress did not intend for such plans to create a contract between FirstNet and the States. Next, as analyzed in the Second Notice, the presentation of the State plan does not constitute the necessary elements of “offer and acceptance” to create a contract. Finally, unlike the plan itself that does not mandate any entity subscribe to any eventual FirstNet service offering, if public safety entities ultimately decide to purchase FirstNet services, at that time a contract will be established between the parties with the typical terms and conditions of a contractual relationship.

    Final Interpretations Regarding the State's Development of an Alternative Plan

    47 U.S.C. 1442(e)(3)(B) requires, not later than 180 days after a Governor provides notice to FirstNet, NTIA, and the FCC pursuant to 47 U.S.C. 1442(e)(3)(A), that the Governor develop and complete RFPs for construction, maintenance, and operation of the RAN within the State. Similar to the requirement that FirstNet must notify the State upon the “completion” of the RFP process,52 section 1442(e)(3)(B) does not further define the phrase “complete requests for proposals” that the State must accomplish within the 180-day timeline.

    52See 47 U.S.C. 1442(e)(1).

    As stated in the Second Notice, FirstNet understands that States, like FirstNet, will potentially have gaps in information at the time of their RFP process, and subsequently at the time of their submission of an alternative plan. For instance, because States will not have negotiated a spectrum capacity lease with FirstNet upon the initial submission of their alternative plan, certain final terms within the States' own covered leasing agreements with their respective partners will likely not have been fully negotiated. FirstNet believes this should not preclude a State from submitting an alternative plan, so long as within the 180-day time period the State has progressed to the extent necessary to submit an alternative plan in accordance with the requirements described in section 1442(e)(3)(C)(i).

    Accordingly, FirstNet makes the following conclusions regarding the State's development of an alternative plan:

    1. FirstNet concludes that the phrase “complete requests for proposals” means that a State has progressed in such a process to the extent necessary to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).

    2. FirstNet concludes that where a State fails to “complete” its RFP within the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan pursuant to 47 U.S.C. 1442(e)(3)(C), and the construction, maintenance, operations, and improvements of the RAN within the State shall proceed in accordance with the FirstNet proposed State plan for such State.

    Analysis of and Responses to Comments Regarding the State's Development of an Alternative Plan

    The majority of respondents agreed with FirstNet's conclusion that, due to the similar nature of the States' responsibility to “complete requests for proposals” and FirstNet's requirement to notify the States upon “completion of the request for proposal process,” States should similarly only need to progress to the point in its RFP process to be able to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that also demonstrates the technical and interoperability requirements described in the FCC's evaluation criteria pursuant to section 1442(e)(3)(C)(i). Similarly, the majority of commenters agreed with FirstNet's conclusion that the Act's interest in timely network deployment compels the State and FirstNet to proceed in accordance with FirstNet's proposed State plan if the State is unable to submit an alternative plan within 180 days as required pursuant to section 1442(e)(3)(C)(i).

    Several commenters, however, maintained that the 180-day timeline is too short of a period for a State to realistically complete its RFP process and that the State should not have to forfeit its ability to submit an alternative plan if it does not complete the RFP process within the 180 days. Several commenters seemed to suggest that States must be “complete” enough in their RFP process to provide information over and above that which FirstNet had concluded was required within the 180-day timeline.

    Comment #39: Numerous commenters expressed their frustration at the short time periods established by the Act, with several suggesting that FirstNet extend the 180-day deadline based on certain factors determined by FirstNet regarding consultation activities.

    Response: FirstNet was created by Congress and is bound by the statutory language contained within the Act. The Act explicitly provides for a 180-day period following the Governor's decision to opt-out to “develop and complete requests for proposals for the construction, maintenance, and operation of the [RAN] within the State.” 53 FirstNet has no ability to change the plain language of the Act and is not authorized to extend the 180-day time period.

    53See 47 U.S.C. 1442(e)(3)(B).

    FirstNet acknowledges the issues regarding timeframes raised in certain of the comments and therefore has concluded that such “completion” required pursuant to section 1442(e)(3)(B) is only required to the extent necessary to be able to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that also demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).

    Comment #40: Numerous respondents asserted that the State should not be required to forfeit its ability to submit an alternative plan if it fails to submit its alternative plan within the 180-day timeline.

    Response: FirstNet disagrees with this statement based on the purpose and language of the Act. Throughout the Act, numerous references express the desire for timely network deployment.54 In addition, the Act explicitly imposes timelines that a State must meet in order to proceed through the alternative plan process.55

    54See, e.g., 47 U.S.C. 1426(b)(1)(C) (describing the need for existing infrastructure to “speed deployment of the network”); see also e.g., 47 U.S.C. 1426(b)(3) (including partnerships to “speed deployment” in rural areas).

    55See 47 U.S.C. 1442(e)(2)-(3).

    The Act weighs a State's right to conduct its own RAN deployment in the State with public safety's need to expeditiously gain the benefit of interoperable communications across State borders. In doing so, it established a clear process relating to State assumption of RAN deployment. FirstNet does not have the authority to alter this statutory process and must adhere to the express language and intent of the Act to speed deployment of a nationwide broadband network for public safety. In keeping with the language and purpose of the Act, FirstNet concludes that where a State fails to “complete” its RFP in the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan in accordance with section 1442(e)(3)(C), which results in the State proceeding in accordance with the FirstNet-proposed State plan.

    Comment #41: One commenter seems to confuse the State's forfeiture of its opportunity to assume RAN responsibilities with the supposition that FirstNet would be, in effect, forcing a State's first responders to subscribe to the NPSBN by proceeding with FirstNet's originally proposed State plan.

    Response: FirstNet reiterates that the Act does not mandate public safety use of the NPSBN. Once FirstNet proceeds with the deployment of its proposed State plan, or a State takes on the RAN deployment and operation responsibility, all public safety entities across the country will have the choice whether to subscribe to the NPSBN.56

    56See generally 47 U.S.C. 1428(a)(1).

    Comment #42: Several commenters maintained that FirstNet must continue to ensure it is providing States with as much information as possible as soon as possible due to the tight timeframes established within the Act.

    Response: FirstNet, as previously stated, is committed to continuing its consultation activities and coordinating with the States as it develops and presents the State plans.

    Comment #43: One commenter suggested that a State should reasonably be required to sufficiently develop and complete the RFPs during the 180-day period and advance in such process to the extent necessary to not only enable the State to meet the requirements of section 1442(e)(3)(C), but also those of section 1442(e)(3)(D).

    Response: FirstNet appreciates the tight timeframes included within the Act and has taken practical steps to help ensure that a State has a reasonable opportunity to proceed with deploying its own RAN in the State. States are not required to know all details of their alternative plan, but instead to have progressed to a point to be able to present an alternative plan for the construction, maintenance, operation, and improvements of the RAN that is also able to demonstrate the technical and interoperability obligations required pursuant to section 1442(e)(3)(C)(i). FirstNet agrees with the respondent that a State must provide information specified in section 1442(e)(3)(D) prior to NTIA being able to complete its section 1442(e)(3)(D) comparisons pursuant to the Act and for the State to seek to enter into a spectrum capacity lease with FirstNet.57 FirstNet concludes, however, that within the 180-day timeframe, the State must only be able to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that also demonstrates the technical and interoperability requirements within section 1442(e)(3)(C)(i).58

    57See 47 U.S.C. 1442(e)(3)(D).

    58See 47 U.S.C. 1442(e)(3)(B), (C)(i).

    Final Interpretations Regarding the Responsibilities of FirstNet and a State Upon a State Decision To Assume Responsibility for the Construction and Operation of Its Own RAN

    Under 47 U.S.C. 1442(e)(3)(C)(iii), the FCC's decision to approve a State's alternative plan triggers the State's obligation to apply to NTIA to seek a spectrum capacity lease from FirstNet (while also allowing the State to apply for a grant to assist in the construction of the State's RAN). Several questions with respect to these provisions of the Act are discussed in the Second Notice regarding the implications and effects on FirstNet and a State of the FCC's decision to approve or disapprove a State's alternative plan.

    Based on its analysis in the Second Notice, FirstNet makes the following conclusions regarding the responsibilities of FirstNet and a State upon a State's decision to assume responsibility for the construction and operation of its own RAN:

    1. FirstNet concludes that once a plan has been disapproved by the FCC, subject only to the additional review described in 47 U.S.C. 1442(h), the opportunity for a State to conduct its own RAN deployment pursuant to 47 U.S.C. 1442(e) will be forfeited, and FirstNet shall proceed in accordance with its proposed plan for that State.

    2. FirstNet concludes, following an FCC-approved alternative State RAN plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State.

    3. FirstNet concludes that if a State, following FCC approval of its alternative plan, is unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, RAN responsibilities in the State.

    Analysis of and Responses to Comments Regarding the Responsibilities of FirstNet and a State Upon a State Decision To Assume Responsibility for the Construction and Operation of Its Own RAN

    Commenters generally agreed with FirstNet's conclusions regarding the responsibilities of a State and FirstNet following the FCC's decision to approve or disapprove a State's alternative plan. Almost all respondents agreed that if the FCC were to disapprove a State's alternative plan, subject to the judicial review allowed in section 1442(h), the State would proceed according to FirstNet's proposed plan.59 Most commenters agreed that once the FCC approves an alternative plan, the State itself must assume the obligation for the construction, operation, maintenance, and improvement of the RAN in such State, and acknowledged FirstNet's rationale for concluding its obligation to deploy a State plan would be extinguished.

    59See 47 U.S.C. 1442(e)(3)(C)(iv).

    Additionally, several commenters stated that it was their belief that FirstNet should provide assurances that it will ensure every State has NPSBN service offerings, whether such State opts-in or fails in its attempt to deploy and operate the RAN. On the other hand, one commenter cautioned FirstNet against adopting interpretations that would allow for the “rescue of opt-out” States without clarifying that such a scenario should not be seen by the States as a “safety net.”

    Comment #44: One respondent maintained that the State should not be required to forfeit its ability to conduct its own RAN deployment and proceed with the FirstNet-proposed State plan following an FCC decision to disapprove the State's alternative plan pursuant to section 1442(e)(3)(C)(iv).

    Response: FirstNet disagrees with this statement based on the plain language of the Act. Section 1442(e)(3) explicitly states that “[i]f the [FCC] disapproves [a State's alternative plan], the construction, maintenance, operation, and improvements of the network within the State shall proceed in accordance with the plan proposed by [FirstNet].” 60 A State does have the right to appeal the FCC's decision to the U.S. District Court for the District of Columbia,61 but the Act's language makes it clear that deployment within the State shall proceed according to FirstNet's proposed State plan following FCC disapproval of the alternative plan.

    60 47 U.S.C. 1442(e)(3)(C)(iv) (emphasis added).

    61See 47 U.S.C. 1442(h).

    Comment #45: One commenter expressed that it would be beneficial to have an appeals process following the submission to the FCC, in instances where the State plan was not approved, through which the decision could be referred to an independent third party for adjudication.

    Response: Section 1442(h) already specifically designates an appeals process with respect to the FCC's disapproval of an alternative plan, whereby “[t]he United States District Court for the District of Columbia shall have exclusive jurisdiction to review a decision of the [FCC] pursuant to subsection (e)(3)(C)(iv).” 62 Any additional appeals processes would contradict the express language of the Act that the U.S. District Court for the District of Columbia has “exclusive jurisdiction” to review the FCC's decision to disapprove a State's alternative plan, as well as simply add to the likely substantial delays that would result in the NPSBN deployment within the respective States.

    62See id.

    Comment #46: Several commenters asserted that FirstNet's central obligation pursuant to the Act is to ensure the deployment of the NPSBN in every State, and that, even if a State gains all necessary approvals to implement its alternative plan and eventually fails, FirstNet's obligation to deploy the network nationwide is never extinguished and must proceed according to the FirstNet-proposed State plan.

    Response: Each Governor is given the option to decide to participate in FirstNet's proposed State plan or to progress through a statutorily-mandated process to assume the obligation for constructing, maintaining, operating, and improving its own State RAN.63 This process can infuse significant delays in the deployment based on the statutorily-mandated timeframes for the Governor's decision and the development of an alternative State plan by the State.64 Further, the Act provides no explicit timelines for the FCC to review and approve or disapprove of an alternative plan, and affords an additional unspecified period of time to appeal any disapproval to the U.S. District Court for the District of Columbia.65

    63See 47 U.S.C. 1442(e).

    64See 47 U.S.C. 1442(e)(2), (3)(C)(i) (providing that the Governor has 90 days to make a decision on State RAN deployment and 180 days to complete the RFP process if the State is seeking to conduct its own RAN deployment).

    65See 47 U.S.C. 1442(h).

    Given the timeframes required by the Act to reach the point of the approval of an alternate plan by the FCC, it is critical that thereafter FirstNet and its eventual RFP partner(s) are able to rely on the State decision to proceed with RAN deployment so FirstNet can appropriately plan for the deployment throughout the rest of the nation. FirstNet cannot be in a position to further delay the nationwide availability of the NPSBN due to a single State's inability or unwillingness to deploy the RAN within that State. In addition, the Act does not provide a mechanism requiring FirstNet to assume responsibility for local RAN deployment after a State has elected, and been approved, to do so. Indeed, to the contrary, Congress indicated its clear intent in requiring FirstNet to proceed with its State plan only in the case where a State's alternative plan was disapproved by the FCC. Congress could have just as easily included a requirement that FirstNet proceed with a State plan if a State was unable or unwilling to proceed under its alternative plan. However, we believe Congress created a balance in favor of certainty and speed to deployment, which is consistent with the detailed process and steps Congress implemented in the Act to ensure alternative State plans initially met the necessary criteria for State deployment and operation of the RAN.66

    66See U.S.C. 1442(e)(3)(C)(iv) (stating where the FCC disapproves an alternative plan, the State proceeds according to FirstNet's proposed plan); 47 U.S.C. 1442(e)(3)(D) (failing to assert that a State must proceed with the FirstNet proposed plan when a FCC-approved plan subsequently fails to demonstrate the requirements to NTIA pursuant to Section 1442(e)(3)(D) to seek a spectrum capacity lease from FirstNet).

    Therefore, FirstNet reiterates its conclusion that, following an FCC-approved alternative plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State, but if the State becomes unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, the RAN responsibilities in the State.

    D. Customer, Operational, and Funding Considerations Regarding State Assumption of RAN Construction and Operation Customer Relationships in States Assuming RAN Construction and Operation

    The Act does not expressly define which customer-facing roles are assumed by a State or FirstNet with respect to public safety entities in States that have assumed responsibility for RAN construction and operation. Generally speaking, all wireless network services to public safety entities will require technical operation of both the RAN, operated by the State in this case, and the core network, operated by FirstNet. The Act charges FirstNet with ensuring the establishment of the NPSBN, including the deployment of the core network, but provides States an opportunity, subject to certain conditions, to conduct the deployment of a RAN in a State.67 A core network, for example, would typically control critical authentication, mobility, routing, security, prioritization rules, and support system functions, including billing and device services, along with connectivity to the Internet and public switched network. Conversely, the RAN would typically dictate, among other things, the coverage and capacity of last mile wireless communication to customer devices and certain priority and preemption enforcement points at the wireless interface of the network. The allocation of these technical and operational functions, however, does not entirely dictate who assumes public safety customer-facing roles, such as marketing, execution of customer agreements, billing, maintaining service responsibility, and generating and using fees from public safety customers. Thus, the conclusions below relate to FirstNet and the State's respective roles and approach with regard to customer relationships in States assuming responsibility for RAN construction and operation in that State.

    67See 47 U.S.C. 1422(a), (e).

    1. FirstNet concludes that the Act provides sufficient flexibility to accommodate many types of customer relationships with public safety entities for States assuming RAN responsibility so long as the relationships meet the interoperability and self-sustainment goals of the Act.

    2. FirstNet concludes that the Act does not require that States assuming RAN deployment responsibilities be the customer-facing entity entering into agreements with and charging fees to public safety entities in such States.

    3. FirstNet concludes that the Act does not preclude States assuming RAN deployment responsibilities from charging subscription fees to public safety entities if FirstNet and such States agree to such an arrangement in the spectrum capacity lease.

    4. FirstNet concludes that the Act provides sufficient flexibility to allow the determination of whether FirstNet or a State plays a customer-facing role to public safety entities in a State assuming RAN responsibilities, to be the subject of operational discussions between FirstNet and the State in negotiating the terms of the spectrum capacity lease.

    5. FirstNet concludes that it will maintain a flexible approach to such functions and interactions in order to provide the best solutions to each State so long as the agreed upon approach meets the interoperability and self-sustainment goals of the Act.

    Analysis of and Responses to Comments on Customer Relationships in States Assuming RAN Construction and Operation

    Summary: All commenters generally agreed with FirstNet's interpretations relating to the nature of customer relationships in States assuming RAN construction and operation. Commenters concurred with the interpretation that by maintaining flexibility in determining whether FirstNet or States will be the customer-facing entity, it allows States to tailor their operations to meet their individual State public safety broadband needs, while still ensuring the achievement of the interoperability and self-sustainment goals of the Act.

    Final Interpretation of FirstNet Analyzing Funding Considerations as Part of Its Determination To Enter Into a Spectrum Capacity Lease

    FirstNet has number of funding sources, including: (1) Up to $7 billion in cash; (2) user or subscriber fees; (3) fees from excess network capacity leases that allow FirstNet to lease capacity not being used by public safety to commercial entities under covered leasing agreements; and (4) lease fees related to network equipment and infrastructure.68 Each of these funding sources is critical to offset the massive costs of building, operating, and maintaining the NSPBN envisioned in the Act and in meeting the self-sustainability requirements placed on FirstNet pursuant to the Act.

    68See generally 47 U.S.C. 1428(a), 1457(b)(3).

    However, States seeking and receiving approval of alternative RAN plans could materially affect FirstNet's funding sources and thus its ability to serve public safety, particularly in rural States. More precisely, a State that assumes RAN deployment responsibilities could benefit from, or supplant, these funding sources, by generating and retaining amounts in excess of that necessary to reasonably maintain the particular State RAN through monetization of FirstNet's licensed spectrum. By doing so, the excess value above that reasonably needed to operate and maintain the RAN would no longer be available to help ensure that nationwide deployment, particularly in higher cost rural areas, will occur. This undermines the intent of the Act and the express requirement for FirstNet to deploy in rural areas as part of each phase of implementation.69

    69See 47 U.S.C. 1426(b)(3).

    Accordingly, FirstNet concludes, based on the language and the intent of the Act, that Congress did not intend to permit alternative RAN plans that inefficiently utilize scarce spectrum resources to hinder the nationwide deployment of the NPSBN by depriving it of needed financial support. FirstNet further concludes that it must thus consider the effect of any such material inefficiencies, among other things, on the NSPBN in determining whether, and under what terms, to enter into a spectrum capacity lease.

    Congress's intent in this regard is informed by 47 U.S.C. 1442(e)(3)(D) requiring a State that wishes to assume RAN responsibilities to demonstrate “the cost-effectiveness of the State plan” when applying to NTIA not just for grant funds, but also for spectrum capacity leasing rights from FirstNet, which are necessary for the implementation of a State RAN. Independent of NTIA's determination in assessing such an application, FirstNet, as the licensee of the spectrum and an independent authority within NTIA, must ultimately decide on what terms to enter into a spectrum capacity lease with a State. The conclusions below relate to FirstNet's role and responsibilities in negotiating a spectrum capacity lease with a State seeking to assume responsibilities for deploying its RAN.

    1. FirstNet concludes, in fulfilling its duties and responsibilities under the Act, it can and must take into account funding considerations, including the “cost-effectiveness” of an alternative state plan as it may impact the national deployment of the NPSBN, in determining whether and under what terms to enter into a spectrum capacity lease with a State.

    2. FirstNet concludes as part of its cost-effectiveness analysis in determining whether and under what terms to enter into a spectrum capacity lease, it (i) must consider the impact of cost-inefficient alternative RAN plans, including inefficient use of scarce spectrum resources, on the NPSBN, and (ii) may require that amounts generated within a State in excess of those required to reasonably sustain the State RAN, be utilized to support the Act's requirement to deploy the NPSBN on a nationwide basis.

    3. FirstNet concludes as part of its cost-effectiveness analysis it must consider State reinvestment and distribution of any user fees assessed to public safety entities or spectrum capacity revenues in determining whether and under what terms to enter into a spectrum capacity lease.

    Analysis of and Responses to Comments on Funding Considerations Part of Determination To Enter Into a Spectrum Capacity Lease

    Summary: Commenters generally agreed with these interpretations emphasizing, for example, that it would be entirely consistent with the Act for FirstNet to take into account its funding considerations, among other things, and impose conditions on such spectrum capacity leases to ensure that revenue from excess capacity arrangements and subscriber fees will be utilized in a manner that continues to facilitate the deployment of the NSPBN.

    Certain commenters either disagreed with, or provided recommendations for, implementing these interpretations, particularly regarding whether and how FirstNet can and must take into account funding considerations, including the “cost-effectiveness” of the State plan, in order to guarantee the viability of a broadband network dedicated to public safety across the nation.

    Comment #47: One commenter reasoned that FirstNet's proposed interpretation is unsupported by the Act's plain language, and potentially conflicts with existing federal authority over States.

    Response: FirstNet disagrees that the interpretation is unsupported by the plain language of the Act. The Act directs the FCC to reallocate and grant a license to FirstNet for the use of the 700 MHz D block spectrum and existing public safety broadband spectrum.70 FirstNet, as the designated licensee of the spectrum pursuant to the Act, has a statutory obligation to ensure the establishment of an interoperable, nationwide public safety broadband network.71 To satisfy this obligation, FirstNet has been given broad authority to take actions it determines necessary, appropriate, or advisable to accomplish its mission.72 As discussed in the Second Notice, FirstNet has determined that it must ensure the efficient use of each of its limited funding resources in order to offset the massive costs to build, operate, and maintain the NSPBN envisioned in the Act and also to meet the statutory self-sustainability requirement imposed on FirstNet pursuant to the Act.

    70See 47 U.S.C. 1421.

    71Id.

    72See 47 U.S.C. 1426(a)(6).

    To assist FirstNet in protecting critical financial resources, the Act requires, among other things, a State seeking to assume RAN responsibilities to demonstrate “the cost-effectiveness of the State plan” when applying to NTIA for spectrum capacity leasing rights from FirstNet, which are necessary for the implementation of a State RAN.73 Consistent with the intent of the Act to ensure the nationwide deployment, FirstNet must consider the cost-effectiveness of the alternative State plan on that nationwide deployment. Indeed, independent of NTIA's determination in assessing such an application, FirstNet, as the designated licensee of the spectrum pursuant to the Act and an independent authority within NTIA, must ultimately decide whether and pursuant to what terms to enter into a spectrum capacity lease with a State.74 Accordingly, FirstNet has determined that it is necessary to take into account funding considerations, including the “cost-effectiveness” of an alternative state plan, and its impact on FirstNet's ability to deploy the national network, in determining whether and under what terms to enter into a spectrum capacity lease.

    73See 47 U.S.C. 1442(e)(3)(D).

    74 We note that FirstNet's interpretation of this provision and its determination with regard to its duties based on the State's proposed demonstration is independent of and does not limit NTIA. To the extent the “spectrum capacity lease” described in section 1442(e)(3)(C)(iii)(II) is a lease of the spectrum itself, rather than capacity on the network, under applicable FCC rules, the FCC “will allow parties to determine precise terms and provisions of their contract” consistent with FirstNet's obligations as a licensee under such rules. See Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets, WT Docket No. 00-230, Report and Order and Further Notice of Proposed Rulemaking, FCC 03-113, 18 FCC Rcd 20604, 20637 (2003).

    Comment #48: Several commenters reasoned that the proposed interpretation either acts as a tax or assigns additional costs to a State that has assumed responsibility for RAN deployment.

    Response: FirstNet disagrees that its interpretation acts as a tax or results in any actual or additional costs to a State that assumes deployment for a RAN in the State. Rather, as discussed in the Second Notice, FirstNet's interpretations ensure that States are not able to retain excess value not reasonably needed for the RAN in that State, and are intended to protect the limited resources provided by Congress to ensure the establishment of a nationwide broadband network for public safety.

    Comment #49: Several commenters noted generally that the terms of a spectrum capacity lease are vital to preserving the opportunity for a State to choose to conduct its own deployment of a RAN, and accordingly, the terms of the spectrum capacity lease agreement, although negotiated, should be conducted in an open and transparent manner. Such commenters also asserted that the terms should be reasonable and known at the same time FirstNet delivers its State plan in order to maintain a partnership between FirstNet and the States.

    Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any processes or requirements related to a spectrum capacity lease.

    Comment #50: Three commenters expressed concern that FirstNet would abuse its authority under this interpretation by leveraging its control of the spectrum to demand virtually any concession it wanted during the negotiation of a spectrum capacity lease, thereby creating a set of circumstances in which the opportunity for a State to conduct is own RAN deployment pursuant to the Act is not a meaningful opportunity.

    Response: FirstNet recognizes that the Act strikes a balance between establishing a nationwide network and providing States an opportunity, under certain conditions, to maintain and operate the RAN portion of the network in their States. Accordingly, FirstNet intends to act in good faith with each of the States to explore “win-win” solutions with States desiring to assume RAN responsibilities, including in scenarios where potential revenue would materially exceed RAN and related costs in a State consistent with the requirements and intent of the Act.

    Comment #51: One commenter, although recognizing FirstNet's responsibility to maximize the build out of a network in all States, disagreed that a State's alternative RAN plan, once approved by the FCC, should be subject to spectrum capacity lease considerations that are outside the geographical area of the State.

    Response: The Act expressly charges FirstNet with ensuring the establishment of a nationwide public safety broadband network.75 To satisfy this mandate, FirstNet must consider and account for the use of the limited resources provided it in order to accomplish this mission. This includes ensuring that the scarce spectrum resources provided for the nationwide network are not used in a materially inefficient manner that could negatively impact the deployment of the entire network. Specifically, FirstNet has a duty to consider the effect of any such inefficiencies on, among other things, more rural States, and on the larger FirstNet program, in determining whether, and under what terms, to enter into a spectrum capacity lease.

    75 47 U.S.C. 1422(a).

    Comment #52: One commenter stated that the benefit of requiring “opt-out” urban States to provide “excess” revenues to FirstNet for rural build out nationwide should not apply to a rural State that may want to take responsibility for its own RAN deployment.

    Response: FirstNet's analysis of funding considerations must equally apply to all States that are able to generate value in excess of the reasonable costs of operating and maintaining the RAN when electing to assume RAN responsibility within the State, so as to ensure sufficient resources are available for the national deployment of the NPSBN. However, we acknowledge that likely only a limited number of jurisdictions will generate such excess value, which would be available to help support deployment, for example, in higher cost, rural areas.

    Comment #53: One commenter stated it does not support FirstNet's interpretation and proposed that any “cost-effectiveness” evaluation of a State plan must begin and end with the effect on the State and argued that the Governor's obligation is to provide the best possible, most cost-effective, solution for that State's residents.

    Response: FirstNet agrees that pursuant to the Act, a State Governor has the right to determine whether it is in the best interest of a State to participate in the State RAN plan as proposed by FirstNet, or instead seek to conduct the deployment of its own RAN within the State. Accordingly, a Governor may choose to independently evaluate whether it is more cost-effective to participate in the State RAN plan as proposed by FirstNet or conduct its own deployment of a RAN in the State. In contrast, FirstNet has an obligation to ensure the establishment of a nationwide network and must take into consideration the interests of all States rather than only a single State. Accordingly, FirstNet, based on the reasoning in the Second Notice, has determined that as a part of its decision to enter into a spectrum capacity lease it must take into account the cost-effectiveness of the proposed alternative State plan, including the impact of the plan on the nationwide network.

    Comment #54: One commenter recommended that the reinvestment analysis should define more clearly the network to ensure RANs that service both public safety entities and secondary users should be targeted first for reinvestment instead of being limited to a RAN for public safety only.

    Response: FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.

    Comment #55: One commenter noted that any lease of excess capacity needs to recognize that the amount of such excess may very well vary by State and decrease over time, citing several studies that indicated 20 MHz of spectrum will be needed, and in some very large incidents, may not be totally sufficient for public safety use. Therefore, the commenter suggested that the amount of supplemental funding that can be attained from covered leasing agreements should follow a determination of the spectrum capacity required by public safety instead of having the amount of spectrum available to public safety be determined by the additional funding beyond the $7 billion needed for the network.

    Response: FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.

    Comment #56: One commenter requested clarification on whether the preliminary interpretation would mean that no excess revenues will ever be allowed to offset, in whole or part, public safety subscriber fees or if all of those revenues will only be reinvested back into the network to maintain or expand infrastructure.

    Response: FirstNet's interpretation does not expressly foreclose the potential for excess revenues to offset, in whole or part, public safety user or subscriber fees provided such reinvestment comports with the requirements of 47 U.S.C. 1428(d), 1442(g).

    Comment #57: Three commenters, although supporting the goal of ensuring build out in rural areas, requested more clarification on the general scope of the FirstNet spectrum capacity lease requirements, including the scope of the proposed “cost-effectiveness” analysis.

    Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any processes or requirements related to a spectrum capacity lease.

    Comment #58: One commenter indicated that NTIA, and not FirstNet, has the ultimate decision-making authority over the entry of spectrum capacity leases with States assuming RAN responsibilities. As support, the commenter referenced 47 U.S.C. § 1442(e)(3)(C)(iii), which provides that if the Commission approves a State plan, the State “shall apply to the NTIA to lease spectrum capacity from the First Responder Network Authority.” Accordingly, the Commenter contended that only NTIA has the authority to enter into spectrum capacity leases with opt-out States.

    Response: FirstNet disagrees with the commenter and reiterates that independent of NTIA's determination in assessing a spectrum capacity lease application, FirstNet, as the licensee of the spectrum pursuant to section 1421 and an independent authority within NTIA, must ultimately decide on what terms to enter into a spectrum capacity lease with a State, and in doing so, evaluate, for example, the State's demonstration of cost-effectiveness of the State's alternative plan on the national deployment per section 1442(e)(3)(D)(ii). The relevant language regarding spectrum capacity leases for States that assume RAN responsibility can be found at section 1442(e)(3)(C)(iii)(II), which provides that once the FCC approves an alternative State plan, the State “shall apply to the NTIA to lease spectrum capacity from the First Responder Network Authority.” 76 We emphasize language in this provision noting that the State would need to lease spectrum capacity from FirstNet. The Act is clear that the license for the public safety broadband spectrum has been granted exclusively to FirstNet.77 As the exclusive licensee of the spectrum, FirstNet alone can negotiate and enter into an agreement to lease this spectrum. In addition, section 1442(e)(3)(D) sets forth the criteria a State must demonstrate in order to obtain spectrum capacity leasing rights. Accordingly, reading sections 1421, 1442(e)(3)(C), and 1442(e)(3)(D) of the Act together, the statute provides that a State assuming RAN responsibility must (1) submit an application to NTIA in order to lease spectrum capacity, (2) demonstrate to NTIA compliance with all applicable criteria, including the cost-effectiveness of the alternative plan on the nationwide deployment, and (3) negotiate an agreement to lease this spectrum capacity from FirstNet, prior to being authorized to conduct RAN deployment in that State.

    76 47 U.S.C. 1442(e)(3)(C)(iii) (emphasis added).

    77 47 U.S.C. 1421.

    Reinvestment of User or Subscriber Fees

    FirstNet has interpreted that the Act provides flexibility for FirstNet and a State assuming RAN responsibilities to reach an agreement regarding who serves as the customer facing entity and ultimately receives such user or subscription fees under the spectrum capacity lease, with respect to the user fees generated from public safety customers in a State. In accordance with the structure and purposes of the Act, which requires that the NSPBN be self-funded, and includes specific provisions requiring reinvestment of revenues in the network, FirstNet makes the following conclusions relating to the use of user or subscription fees assessed and collected by a State assuming responsibility for deploying the RAN:

    1. FirstNet concludes that the Act requires that States assuming RAN deployment responsibilities and charging user or subscription fees to public safety entities must reinvest such fees into the network.

    2. FirstNet concludes it could impose a reinvestment restriction within the terms of a spectrum capacity lease with a State.

    Analysis of and Responses to Comments on Reinvestment of User or Subscription Fees

    Summary: Commenters generally agreed with the interpretation that user or subscriptions fees must be reinvested in the network, recognizing that to achieve network sustainment, all fees, revenues, etc. would need to be reinvested into the network. The dissenting commenters, as documented below, did not typically disagree that the funds must be reinvested in the network, but rather wanted to limit the reinvestment of the funds solely to RAN construction, operation, and maintenance in the State where the fees were assessed rather than requiring reinvestment to include the nationwide network.

    Comment #59: One commenter disagreed with the proposed interpretation that FirstNet could consider or impose a reinvestment restriction as part of a spectrum capacity lease, stating that such a conclusion is not supported by the plain language of the Act.

    Response: See the response to Comment #47 discussing the ability of FirstNet to negotiate the specific terms and conditions of a spectrum capacity lease.

    Comment #60: One commenter disagreed with the proposed interpretation that a State choosing to conduct its own RAN deployment must pay a part of its subscriber fees to FirstNet, rather than retain and reinvest those funds directly in the State RAN.

    Response: FirstNet's interpretations leave flexibility for a State to generate or receive user or subscription fees from public safety customers and reinvest such fees into the RAN in the State. However, the specific arrangement will ultimately depend on many factors, including both a State's proposed reinvestment of such fees and the cost-effectiveness considerations regarding the distribution of such fees that will be evaluated as part of any negotiation between FirstNet and a State seeking to enter into such a spectrum capacity lease. As discussed in the Second Notice, subscriber fees may ultimately exceed those amounts necessary to deploy a robust RAN in any one State. Accordingly, if the Act is interpreted to allow excess funds to be reinvested only in a specific State, there is a built-in incentive for a few States to conduct RAN deployment and retain, for reinvestment in that State, fees that could materially reduce FirstNet coverage and services in other States, including States with more rural areas. FirstNet believes, as a general matter, that Congress did not intend for a few States to be able to withhold material funding for all other States pursuant to the Act. Such an incentive structure, even if reinvestment in the State network were always required in States assuming RAN responsibilities, could result in networks that greatly exceed public safety requirements in a few such States and networks that do not meet public safety requirements and the goals of the Act in the vast majority of States. Accordingly, as concluded above, FirstNet, as part of its cost-effectiveness analysis, must consider a State's reinvestment and distribution of any user fees assessed to public safety entities as part of the negotiated terms of any spectrum capacity lease between FirstNet and the State.

    Comment #61: One commenter suggested the provisions for reinvestment should define more clearly the network to ensure the RAN that services dual purposes (i.e., both public safety entities and secondary users) should be targeted first for reinvestment.

    Response: The RAN, whether deployed by FirstNet or a State, will be capable of being utilized by both public safety entities and secondary users. Thus, any funds reinvested in a State RAN will likely positively impact both public safety and secondary users. However, public safety entities are intended to be the primary users of the network. Therefore, to the extent that a RAN requires special modifications specifically for, or on behalf of public safety entities, such modifications will likely take priority over general investments in the RAN. Nevertheless, FirstNet anticipates gaining a better understanding of these specific needs and priorities as it continues both its ongoing consultation with its various stakeholders as well as part of any negotiation between FirstNet and a State to enter into a spectrum capacity lease.

    Comment #62: One commenter disagreed with FirstNet's interpretation of the Act, expressing concern that reinvestments of subscriber fees is a tax on public safety responders and stating that any charges above and beyond what is necessary to maintain and improve a State's RAN should be returned to that State's public safety community in the form of rate reductions, training, and better equipment.

    Response: See the responses to Comment #48 and Comment #56 above.

    Reinvestment of Revenues From State Covered Leasing Agreements/Public-Private Partnerships

    The Act includes certain provisions addressing the reinvestment of covered leasing agreement fees for States assuming RAN deployment opportunities that have both received approval from NTIA and entered into a spectrum capacity lease with FirstNet.78 We analyzed, in the Second Notice, the parallels between FirstNet and the State provisions addressing the reinvestment of such fees pursuant to the Act. For example, section 1428(d) requires FirstNet to reinvest those amounts received from the assessment of fees pursuant to section 1428 in the NPSBN by using such funds only for constructing, maintaining, operating, or improving the network.79 Parallel to section 1428(d), section 1442(g)(2) requires that any amounts gained from a covered leasing agreement between a State conducting its own deployment of a RAN and a secondary user must be used only for constructing, maintaining, operating, or improving the RAN of the State.80

    78 47 U.S.C. 1442(g).

    79 47 U.S.C. 1428(d).

    80 47 U.S.C. 1442(g)(2).

    Section 1428(a)(2) authorizes FirstNet to charge lease fees related to covered leasing agreements. Other than such agreements, however, FirstNet is not expressly authorized to enter into other arrangements involving the sale or lease of network capacity. In potential contrast, section 1442(g)(1) precludes States from providing “commercial service to consumers or offer[ing] wholesale leasing capacity of the network within the State except directly through public-private partnerships for construction, maintenance, operation, and improvement of the network within the State.” 81 Section 1442(g)(2), entitled “Rule of construction,” provides that “[n]othing in this subsection shall be construed to prohibit the State and a secondary user from entering into a covered leasing agreement.” 82

    81 47 U.S.C. 1442(g)(1) (emphasis added).

    82 47 U.S.C. 1442(g)(2).

    To reconcile the differences in these provisions, FirstNet, in accordance with its analysis in the Second Notice, makes the following interpretations relating the potential treatment of a covered leasing agreement and a public-private partnership for construction, maintenance, operation, and improvement of the network:

    1. FirstNet concludes that, in practical effect, the literal statutory differences between a covered leasing agreement and public-private partnership as used in the Act result in no substantive difference between the Act's treatment of FirstNet and States that assume RAN responsibility.

    2. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment provision of 47 U.S.C. § 1442(g) should be interpreted to require such reinvestment.

    Analysis of and Responses to Comments on Reinvestment of Revenues From State Covered Leasing Agreements/Public-Private Partnerships

    Commenters generally supported the interpretation, agreeing that through the provisions of and overall framework and policy goals of the Act, Congress intended that any revenues from public-private partnership, to the extent such arrangements are permitted and different than covered leasing agreements, should be subject to the reinvestment requirements of the Act. However, a few commenters, as discussed below, disagreed with the interpretation.

    Comment #63: One commenter suggested the proposed interpretation regarding public-private partnerships is too narrow and will only serve to inhibit creative, customized solutions for RAN build out and maintenance within a State. Specifically, the commenter noted that the Act allows FirstNet to lease spectrum capacity to commercial providers who are free to offer commercial service and to profit from the arrangement, and likewise, the Act should be interpreted to permit opt-out States in connection with selected partners to have this same economic opportunity.

    Response: FirstNet disagrees that its interpretation inhibits or limits customized solutions for RAN build out and maintenance within a State. The Act allows both FirstNet and States that have received approval of an alternative plan and entered into a spectrum capacity lease with FirstNet to enter into covered leasing agreements.83 A covered leasing agreement, as the only instrument in the Act that permits access to network capacity on a secondary basis for non-public safety services, is a fundamental tool to attract entities to assist in the construction, management, and operation of the NPSBN, including State RANs. Consequently, a State that enters into a covered leasing agreement with a secondary user would be afforded the same benefits that are available to FirstNet pursuant to section 1428(a)(2)(B), including permitting the secondary user access to network capacity on a secondary basis for non-public safety services. Similarly, the only limitations on the covered leasing agreements between a State and secondary user would be those described in the Act, including reinvestment of such revenues in the RAN, and the terms and conditions agreed upon by FirstNet and the State as part of the spectrum capacity lease.84 Thus, the same potential economic opportunity exists for States assuming RAN responsibilities as for FirstNet nationally, including rural States, to develop partnerships with broadband providers, local telecommunications providers, or other private sector entities within such States.

    83See 47 U.S.C. 1428(a), 1442(g)(2).

    84See id.

    Comment #64: One commenter provided a general comment about covered leasing agreements and public-private partnerships, stating that the negotiating entity should seek to maximize the profit it can obtain from the 700 MHz spectrum allotted to public safety by leasing the spectrum capacity to secondary users on a statewide, regional, or national basis—whichever arrangement is most profitable.

    Response: FirstNet agrees that it should evaluate various funding and deployment options in order to help speed deployment and ensure the establishment of a self-sustaining broadband network dedicated to public safety throughout the nation.

    Comment #65: One commenter suggested that, although revenue generated from a covered leasing agreement is an important financial contribution to the construction and maintenance of the nationwide network, FirstNet should not allow the promise of secondary leasing agreements to single-handedly drive its strategic decisions.

    Response: FirstNet acknowledges the comment and intends to analyze and determine the most efficient and effective way to utilize its various funding streams to ensure the deployment and operation of a nationwide broadband network for public safety.

    Comment #66: One commenter suggested that State law, not FirstNet, should determine the ability of an opt-out State to profit from public-private partnerships or covered leasing agreements.

    Response: The Act authorizes States to enter into covered leasing agreements with secondary users through public-private arrangements and establishes the parameters of those arrangements.85 Indeed, the Act explicitly limits the use of any revenue gained by a State through a covered leasing agreement to constructing, maintaining, operating, or improving the RAN of that State.86 Similarly, FirstNet has also concluded that section 1428(d), authorizing a State to enter into public-private partnerships, was intended by Congress to be read consistently, to the extent such an arrangement is considered something different from a covered leasing agreement, so as to ensure ongoing reinvestment of all revenues into the network. This is consistent with the overall purpose and intent of the Act to ensure the deployment and operation of the NPSBN.

    85See 47 U.S.C. 1442(g)(2).

    86See id.

    Dated: October 15, 2015. Jason Karp, Chief Counsel (Acting), First Responder Network Authority.
    [FR Doc. 2015-26622 Filed 10-19-15; 8:45 am] BILLING CODE 3510-TL-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration [Docket Number: 140821696-5908-04] RIN 0660-XC012 First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 AGENCY:

    First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice; final interpretations.

    SUMMARY:

    The First Responder Network Authority (“FirstNet”) publishes this Notice to issue final interpretations of its enabling legislation that will inform, among other things, forthcoming requests for proposals, interpretive rules, and network policies. The purpose of this Notice is to provide stakeholders FirstNet's interpretations on many of the key preliminary interpretations presented in the proposed interpretations published on September 24, 2014.

    DATES:

    Effective October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected].

    SUPPLEMENTARY INFORMATION: I. Introduction and Background

    The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (the “Act”) established the First Responder Network Authority (“FirstNet”) as an independent authority within the National Telecommunications and Information Administration (“NTIA”). The Act establishes FirstNet's duty and responsibility to take all actions necessary to ensure the building, deployment, and operation of a nationwide public safety broadband network (“NPSBN”).1

    1 47 U.S.C. 1426(b).

    One of FirstNet's initial steps in carrying out this responsibility under the Act is the issuance of open, transparent, and competitive requests for proposals (“RFPs”) for the purposes of building, operating, and maintaining the network. We have sought—and will continue to seek—public comments on many technical and economic aspects of these RFPs through traditional procurement processes, including requests for information (“RFIs”) and potential draft RFPs and Special Notices, prior to issuance of RFPs.2

    2 The pronouns “we” or “our” throughout this Notice refer to “FirstNet” alone and not FirstNet, NTIA, and the U.S. Department of Commerce as a collective group.

    As a newly created entity, however, we are also confronted with many complex legal issues of first impression under the Act that will have a material impact on the RFPs, responsive proposals, and our operations going forward. Generally, the Administrative Procedure Act (“APA”) 3 provides the basic framework of administrative law governing agency action, including the procedural steps that must precede the effective promulgation, amendment, or repeal of a rule by a federal agency.4 However, 47 U.S.C. 1426(d)(2) provides that any action taken or decision made by FirstNet is exempt from the requirements of the APA.

    3See 5 U.S.C. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521.

    4See 5 U.S.C. 551-559. The APA defines a “rule” as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.” 5 U.S.C. 551(4).

    Nevertheless, although exempted from these procedural requirements, on September 24, 2014, FirstNet published a public notice entitled “Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012” (hereinafter “the First Notice”),5 seeking public comments on preliminary interpretations, as well as technical and economic issues, on certain foundational legal issues to help guide our efforts in achieving our mission.

    5 79 FR 57058 (September 24, 2014).

    The purpose of this Notice is to provide stakeholders notice of the final legal interpretations on many of the key preliminary interpretations presented in the First Notice. Additional background and rationale for this action and explanations of FirstNet's interpretations were included in the First Notice and are not repeated herein. The section immediately below labeled “Final Interpretations” summarizes FirstNet's final interpretations with respect to the First Notice. Thereafter, the section labeled “Response to Comments” summarizes the comments received on the preliminary interpretations contained in the First Notice and provides FirstNet's responses to such comments, including further explanations and any changes to FirstNet's interpretations.

    II. Final Interpretations A. FirstNet Network Final Definitions of Core Network and Radio Access Network

    1. FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3rd Generation Partnership Project (“3GPP”) standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network.

    2. FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (e.g., the eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points.

    3. FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State.

    B. Users Network Users

    4. FirstNet defines a “secondary user” as any user that seeks access to or use of the NPSBN for non-public safety services.

    Prohibition on Providing Commercial Services to Consumers

    5. The definition of “consumers” as used in 47 U.S.C. 1432 does not include:

    a. any public safety entity as defined in the Act;

    b. States when seeking access to or use of the core network, equipment, or infrastructure; or

    c. entities when seeking access to or use of equipment or infrastructure.

    6. The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving “consumers” does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services.

    7. The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement.

    8. The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis.

    C. Requests for Proposals Requests for Proposals Process

    9. FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B).

    Minimum Technical Requirements

    10. FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the Interoperability Board, including as necessary to accommodate advancements in technology as required by the Act.

    Final Definition of “Rural”

    11. FirstNet defines “rural,” for the purposes of the Act, as having the same meaning as “rural area” in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (“Rural Electrification Act”). Section 601(b)(3) of the Rural Electrification Act provides that “[t]he term `rural area' means any area other than—(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.” In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the “terms `rural' and `rural area' mean any area other than—(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).” Thus, as defined herein, the term “rural” means any area that is not:

    • A city, town, or incorporated area that has a population of greater than 20,000 inhabitants

    • any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants

    12. FirstNet concludes that a lower boundary (e.g., “wilderness,” “frontier”) is not necessary to satisfy its rural coverage requirements under the Act, and thus FirstNet does not intend to establish any such boundary.

    Existing Infrastructure

    13. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive proposals leverage existing infrastructure in accordance with the provision.

    14. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable.

    15. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is “economically desirable,” including:

    a. infrastructure type/characteristics

    b. security (physical, network, cyber, etc.)

    c. suitability/viability (ability to readily use, upgrade, and maintain)

    d. readiness for reuse (e.g., already in use for wireless communications)

    e. scope of use (e.g., range of coverage)

    f. availability/accessibility (time/obstacles to acquiring access/use)

    g. any use restrictions (e.g., prohibitions/limitations on commercial use)

    h. relationships with infrastructure owners/managers (e.g., ease/difficulty in working with owners/managers)

    i. available alternatives in the area

    D. Fees General

    16. FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428(a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable.

    Network User Fees

    17. FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the NPSBN.

    State Core Network User Fees

    18. FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f) are distinct from and can be assessed in addition to any other fees authorized under the Act.

    Lease Fees Related to Network Capacity and Covered Leasing Agreements

    19. FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to “construct, manage, and operate” the entire FirstNet network, either from a coverage perspective or exclusively within a specific location.

    20. FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area.

    21. FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network.

    22. FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement.

    23. FirstNet interprets the reference to “network capacity” in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and including the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement, whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers.

    24. FirstNet interprets the term “secondary basis” under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act.

    25. FirstNet interprets the phrase “spectrum allocated to such entity” found in 47 U.S. § 1428(a)(2)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the Federal Communications Commission (“FCC”) under call sign “WQQE234” to be allocated for use on a secondary basis under a covered leasing agreement.

    26. FirstNet concludes that the reference to “dark fiber” in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities.

    Network Equipment and Infrastructure Fee

    27. FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity.

    28. FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure.

    III. Response to Comments

    FirstNet received 63 written comments to the First Notice from various stakeholders, including States, tribes, public safety organizations, commercial carriers, equipment vendors, utilities, and various associations. Comments on the First Notice included a large number of identical or similar written comments as well as oral statements made during meetings with FirstNet. FirstNet has carefully considered each of the comments submitted. It has grouped and summarized the comments according to common themes and has responded accordingly. All written comments can be found at www.regulations.gov.

    A. FirstNet Network 1. Final Definitions of Core Network and Radio Access Network

    The Act requires FirstNet to “ensure the establishment of a nationwide, interoperable public safety broadband network” that is “based on a single national network architecture.” 6 This national network architecture must be capable of evolving with technological advancements and initially consists of two primary network components: A core network and a radio access network.7 The Act defines the “core network” as consisting of “the national and regional data centers, and other elements and functions that may be distributed geographically . . . and provid[ing] connectivity between (i) the radio access network; and (ii) the public Internet or public switched network, or both . . . .” 8 Comparably, the Act defines the “radio access network” as consisting of “all cell site equipment, antennas, and backhaul equipment . . . that are required to enable wireless communications with devices using the public safety broadband spectrum . . . .” 9

    6 47 U.S.C. 1422.

    7 47 U.S.C. 1422(b).

    8 47 U.S.C. 1422(b)(1).

    9 47 U.S.C. 1422(b)(2)(B).

    In the First Notice, FirstNet made preliminary interpretations further describing the scope of the definitions of the core network and RAN. Although the vast majority of commenters agreed with the interpretations, some expressed concerns that many of the key elements of the network were either not referenced or did not meet the criteria described in the proposed definitions. In response to these comments, FirstNet has slightly modified its preliminary interpretation of the “core network” to include the Mobility Management Entity within the Evolved Packet Core elements under the 3GPP standards and its preliminary interpretation of “radio access network” to include backhaul to FirstNet designated consolidation points. Accordingly, FirstNet makes the following final interpretations related to the definitions of the core network and radio access network under the Act.

    (1) FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3GPP standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network.

    (2) FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (e.g., the eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points.

    Analysis of and Responses to Comments on Definition of Core Network and Radio Access Network

    Summary: The majority of commenters agreed with FirstNet's proposed definitions of “core network” and “radio access network” and supported FirstNet considering commercial standards, as well as the relevant sections of the Interoperability Board Report and relevant 3GPP standards, to provide further clarity around the elements and functions of the core network and radio access network.

    Comment #1: A few commenters suggested that FirstNet simply use the definitions of the terms “core network” and “radio access network” that are provided in the statute. For example, one commenter recommended FirstNet use its wide discretion to consider other interpretations as it carries out its responsibilities to implement these network components and not use the Interoperability Board Report to help derive any legal interpretations of the Act.

    Response: FirstNet agrees that the Act provides it with broad discretion to carry out its mission. In view of that discretion, FirstNet has determined that it is important to provide additional clarity around certain delineation points between the core network and RAN as defined in the Act. These delineation points become especially important in light of the provisions of 47 U.S.C. 1442(e) that allow a State the opportunity, under certain conditions, to conduct the deployment of a RAN within that State and require that State to pay a fee for use of elements of the core network. In response to the specific example, the Act commissioned the development of the Interoperability Board Report to provide recommended technical requirements to ensure a nationwide level of interoperability for the NPSBN.10 Under the Act, these recommendations are intended to be used by FirstNet to help develop and maintain the NPSBN.11 Moreover, a State choosing to assume RAN responsibilities must demonstrate compliance with the minimum technical interoperability requirements of the Interoperability Board Report in order to receive approval of an alternative RAN plan.12 Based on these provisions, FirstNet believes that it is important to give credence to the relevant sections of the Interoperability Board Report that relate to the definitions of the core network and RAN.

    10See 47 U.S.C. 1423(c).

    11See id.

    12See 47 U.S.C. 1442(e)(3)(C)(i).

    Comment #2: One commenter suggested the proposed definition of the core network is too expansive and recommended that FirstNet remove the language “device services” and “all other network elements and functions other than the radio access network” from its proposed definition of the core network.

    Response: FirstNet disagrees that the proposed definition of core network is too expansive and believes its proposed interpretation, including the language “device services” and “all other network elements and functions other than the radio access network,” is consistent with both the intent of the Act as well as commercially accepted standards for elements generally comprising a core network. Additionally, FirstNet's inclusion of these terms and phrases in its interpretation assist in providing clarity relating to the definitions of core network and RAN that are critical to establishing the NPSBN and providing the scope of responsibility a State will assume should it decide to conduct its own RAN deployment. In delivering a plan to a Governor for a determination of whether to assume responsibilities for RAN construction, FirstNet must delineate between what elements of the network in the proposed plan comprise the core network versus the elements that comprise the RAN. Accordingly, an understanding of the elements that make up the core network and RAN are critical for a Governor to make an effective determination about whether the State should have FirstNet conduct the RAN deployment or seek to conduct its own RAN deployment.

    Comment #3: One commenter expressed concern that the proposed definitions conflate issues of policy and technology and suggested FirstNet avoid rigid definitions of “core network” or “radio access network” and align their technical and business development efforts with standards that evolve with the long term evolution (“LTE”) broadband network.

    Response: FirstNet acknowledges the comment, but believes its proposed definitions of core network and RAN provide additional certainty that is necessary in order to build, operate, and maintain the NPSBN, while, at the same time, preserving, as contemplated by the Act, the necessary flexibility to take into account new and evolving technological advancements. For example, FirstNet's interpretations of both the core network and RAN are inclusive of the language of 47 U.S.C. 1422(b) that specifically states the national architecture must “evolve[] with technological advancements and initially consists of” the stated core network and RAN components.13 The use of the term “initially” and the phrase “evolve with technological advancements” in 47 U.S.C. 1422(b) indicate that Congress understood that the definitions of the core network and RAN could not be static. Rather, the definitions of such terms would need to be modified throughout the life of the network in order to help ensure that public safety would have a network capable of supporting and providing access to new and evolving technologies.

    13 47 U.S.C. 1422(b) (emphasis added).

    Comment #4: Several commenters, although not disagreeing with the proposed definitions, expressed concerns that many of the key elements of the network were either not referenced or did not meet the criteria described in the proposed core network and radio access network definitions. To illustrate this point, multiple commenters reasoned that backhaul transport connecting the radio access network with the core network or the backhaul connecting the core network with geographically distributed databases and application servers, which are critical components of network integration, need to be addressed in the definitions.

    Response: FirstNet acknowledges the comments and has modified its interpretation of the “core network” to include the Mobility Management Entity within the Evolved Packet Core elements under the 3GPP standards and its interpretation of “radio access network” to include backhaul to FirstNet designated consolidation points. To the extent additional clarity is necessary to provide, for example, more specific demarcation points or the services and facilities that will be provided by the various network elements, FirstNet intends to address such matters, as appropriate, in the development of relevant network policies.

    2. State Radio Access Networks Must Use the FirstNet Core Network

    As discussed above, the Act charges FirstNet with the duty to “ensure the establishment of a nationwide, interoperable public safety broadband network . . . based on a single, national network architecture” and defines the architecture of the network as initially consisting of a “core network” and a “radio access network.” 14 In addition, FirstNet is required to take all actions necessary to ensure the building, deployment, and operation of the network, including issuing RFPs for the purposes of building, operating, and maintaining the network.15 Thus, overall, FirstNet is responsible for ensuring the core network and radio access network—subject to a State's ability to assume RAN responsibilities under 47 U.S.C. 1442—is built, deployed, and operated throughout the country.

    14 47 U.S.C. 1422.

    15 47 U.S.C. 1426(b).

    As analyzed in the First Notice, the Act, although providing each State an opportunity to choose to conduct its own deployment of a RAN in such State, does not provide for State deployment of a core network separate from the core network that FirstNet is charged with deploying.16 Rather, according to the express language of the Act, FirstNet, is the only entity responsible for constructing a core network. This interpretation is further supported by the mandate that States that choose to build their own RAN must pay any user fees associated with such State's use of “the core network.” 17 Thus, based on the language of and overall interoperability goals of the Act, FirstNet makes the following conclusion related to State use of the core network that is constructed, operated, and maintained by FirstNet.

    16See 47 U.S.C. 1422, 1426.

    17 47 U.S.C. 1442(f).

    FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State.

    Analysis of and Responses to Comments to Conclusions That State Radio Access Networks Must Use the FirstNet Core Network

    Summary: The majority of commenters agreed with FirstNet's proposed interpretation that a State choosing to conduct its own deployment of a radio access network must use the FirstNet core network to provide services to public safety entities.

    Comment #5: One commenter did not support FirstNet's preliminary conclusion, asserting that direct connectivity between the core network and the RAN is excluded from FirstNet's definitions and that such network element should be explicitly identified and included either in the definition of core network or radio access network.

    Response: FirstNet acknowledges the comment and notes that, as detailed above, it has clarified the definition of RAN to include backhaul to FirstNet consolidation points.

    Comment #6: One commenter agreed with the interpretation, but suggested FirstNet should remain open to the concept of a local “back-up” core network, particularly for States or localities with a high population density, with this “back-up” core network being designed and purposed to protect against a total loss of connectivity to the FirstNet nationwide core network.

    Response: The Act requires FirstNet to establish a network with adequate hardening, security, reliability, and resiliency requirements, including by addressing special considerations for areas and regions with unique homeland security or national security needs.18 Accordingly, FirstNet intends to construct the core network taking into account these considerations and does not anticipate the need to utilize a local “back-up” core network to serve public safety, which, among other things, potentially creates interoperability complexities and increases network security risks.

    18See 47 U.S.C. 1426(b)(2), (c)(2)(A).

    B. Network Users 1. Final Definition of “Secondary Users”

    The Act in 47 U.S.C. 1428(a)(1) authorizes FirstNet to charge “user or subscription” fees to a “secondary user . . . that seeks access to or use of the [NPSBN].” Additionally, under 47 U.S.C. 1428(a)(2), FirstNet may enter into a covered leasing agreement with a “secondary user” that permits “access to network capacity on a secondary basis for non-public safety purposes.” 19 The Act does not expressly define the term “secondary user.” However, based on the plain language of 47 U.S.C. 1428, FirstNet reaches the following conclusion with respect to the meaning of “secondary user”:

    19 47 U.S.C. 1428(a)(2).

    FirstNet defines a “secondary user” as any user that seeks access to or use of the NPSBN for non-public safety services.

    Analysis of and Responses to Comments on Definition of Secondary User

    Summary: The majority of commenters agreed with the interpretation of a “secondary user” as a user that accesses network capacity on a secondary basis for non-public safety services. One such commenter noted that while secondary users are not public safety entities, they are important to the financial sustainability of the network. Similarly, another commenter remarked that such non-public safety secondary users are necessary to implement a sophisticated and expansive network.

    Comment #7: One commenter expressed concern that FirstNet's proposed definition, as formulated, could be misconstrued and sought to clarify that “secondary user” captures those using the NPSBN for services that are not related to public safety.

    Response: FirstNet has attempted to clearly state in its final definition of “secondary user” (identified above) that such term refers to those users who access the NPSBN only for non-public safety services.

    Comment #8: One commenter expressed concern not about FirstNet's definition of “secondary user,” but about the potential for secondary users to adversely impact the performance of the NPSBN at the expense of public safety.

    Response: FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN.

    Comment #9: One commenter asserted that any user of the NPSBN that is not a “public safety entity” should be considered a “consumer” rather than a “secondary user.” These “consumers” would use the network on a secondary basis and yield to the primary user public safety entities.

    Response: While FirstNet certainly agrees with the general concept of public safety entities being the primary users of the NPSBN, we do not agree that the term “consumer” (which is also undefined in the Act) encompasses all other such users of the network on a secondary basis. First, the Act explicitly uses the term “secondary user” when referring to those entities or individuals that access or use the network “on a secondary basis for non-public safety services.” 20 Secondly, this use of the term “consumer” is inconsistent with 47 U.S.C. 1432, which prohibits FirstNet from providing “commercial telecommunications or information services directly to consumers.” Under 47 U.S.C. 1428, FirstNet is expressly authorized to assess a network user fee on secondary users. Thus, given the Act prohibits FirstNet from providing certain services directly to consumers while it permits FirstNet to charge user fees to secondary users, by definition all secondary users cannot be consumers.

    20 47 U.S.C. 1428(a).

    2. Prohibition on Providing Commercial Services to Consumers

    The Act in 47 U.S.C. 1432(a) specifies that FirstNet “shall not offer, provide, or market commercial telecommunications or information services directly to consumers.” The Act does not define the word “consumer” or indicate whether the word is limited to individuals or includes organizations and businesses. In addition, under the rule of construction specified in 47 U.S.C. 1432(b), nothing in 47 U.S.C. 1432(a) is intended to prohibit FirstNet from entering into covered leasing agreements with secondary users or to limit FirstNet from collecting lease fees for the use of network equipment and infrastructure. FirstNet makes the following conclusions with respect to these provisions of the Act:

    (1) The definition of “consumers” as used in 47 U.S.C. 1432 does not include:

    a. Any public safety entity as defined in the Act;

    b. States when seeking access to or use of the core network, equipment, or infrastructure; or

    c. entities when seeking access to or use of equipment and infrastructure.

    (2) The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving “consumers” does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services.

    (3) The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement.

    (4) The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis.

    Analysis of and Responses to Comments on Prohibition on Providing Commercial Services to Consumers

    Summary: The vast majority of commenters supported FirstNet's conclusions that the prohibition in 47 U.S.C. 1432 on FirstNet offering, providing, or marketing commercial telecommunications or information services to consumers does not apply to public safety entities, secondary users, States seeking access to or use of the FirstNet core network, or entities or States seeking access to or use of network equipment and infrastructure. These commenters agreed that the intent of this provision, whether explicit or implicit, is to exclude these entities from the definition of consumer.

    Comment #10: One commenter, while not disagreeing with FirstNet's conclusions, expressed concern regarding the potential for network capacity to become saturated from non-public safety use.

    Response: As noted above, FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN.

    C. Requests for Proposals 1. Requests for Proposals Process

    The Act in 47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue “open, transparent, and competitive” RFPs. The procedural requirements for issuing such RFPs to meet the “open, transparent, and competitive” standard, however, are not defined in the Act. The Federal Acquisition Regulation (“FAR”), codified in 48 CFR parts 1-99, is the primary regulation used by federal executive agencies in their acquisition of supplies and services with appropriated funds. Thus, FirstNet makes the following conclusion with respect to its compliance with this provision:

    FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B).

    Analysis of and Responses to Comments on Requests for Proposals

    Summary: The overwhelming majority of commenters agreed with FirstNet's proposed interpretation that using the FAR satisfies FirstNet's statutory obligation to issue “open, transparent, and competitive requests for proposals to private sector entities for the purposes of building, operating, and maintaining the network . . . ” In addition to commenting that compliance with the FAR is a reasonable way of meeting the Act's requirements for an “open, transparent, and competitive” RFP process, commenters noted that the FAR is a well understood process, and that by using it, FirstNet will save time by not having to develop a new process for issuing RFPs. Given the size and scope of FirstNet's task, commenters agreed that using the FAR was the most logical option. Some commenters agreed with using the FAR generally, but encouraged the use of only certain sections.

    Comment #11: Some commenters suggested that FirstNet exceed the FAR's requirements and reminded FirstNet of its authority to make agreements with States to use existing infrastructure.

    Response: FirstNet believes that using the FAR satisfies the Act's requirements. FAR Part 1.102 provides guiding principles of the Federal Acquisition System, namely “promoting competition, and conducting business with integrity, fairness and openness.” The policies and procedures of the FAR embody these principles. Adherence to the FAR, therefore, ensures compliance with the Act's mandate to issue “open, transparent, and competitive” RFPs. With respect to existing infrastructure, FirstNet plans to leverage such assets for the NPSBN to the extent it is economically desirable, as required by the Act (see below for a further discussion regarding existing infrastructure).

    Comment #12: One commenter disagreed with FirstNet's proposed interpretation, observing that the guidance in 47 U.S.C. 1426(b)(1)(B) would be unnecessary if Congress intended FirstNet to comply with the FAR, and that there is not a single reference to the FAR in the Act, despite the extensive statutory guidance the Act provides to FirstNet concerning the RFP process.

    Response: FirstNet acknowledges this comment and notes that its final conclusion is not that FirstNet believes it is required to use the FAR. Rather, FirstNet's interpretation merely is that by complying with the FAR, FirstNet is complying with this provision of the Act.

    2. Minimum Technical Requirements

    47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue RFPs for the purposes of building, operating, and maintaining the network that use, without materially changing, the minimum technical requirements developed by the Interoperability Board. 47 U.S.C. 1422(b) and 47 U.S.C. 1426(c)(4) further obligate FirstNet to accommodate advancements in technology.21 With respect to these provisions, FirstNet makes the following final interpretation:

    21 Note that the Interoperability Board Report states that “[g]iven that technology evolves rapidly, the network components and associated interfaces identified in the [Interoperability Board Report] . . . are also expected to evolve over time. As such, these aspects of the present document are intended to represent a state-of-the-art snapshot at the time of writing. In this context, the standards, functions, and interfaces referenced in the present document are intended to prescribe statements of intent. Variations or substitutions are expected to accommodate technological evolution consistent with the evolution of 3GPP and other applicable standards.” Interoperability Board, Recommended Minimum Technical Requirements to Ensure Nationwide Interoperability for the Nationwide Public Safety Broadband Network at 27 (May 22, 2012), available at http://apps.fcc.gov/ecfs/document/view?id=7021919873.

    FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the Interoperability Board, including as necessary to accommodate advancements in technology as required by the Act.

    Analysis of and Responses to Comments on Minimum Technical Requirements

    Summary: Commenters were virtually unanimous in agreeing with FirstNet's proposed interpretation regarding changes to the minimum technical requirements established by the Interoperability Board. Several commenters reasoned that such changes are necessary and fully contemplated (by Congress and the Interoperability Board itself) in order to keep pace with evolutions in technology, address issues that the Interoperability Board may not have considered, and fulfill requirements under the Act.

    Comment #13: One commenter maintained that the minimum technical requirements developed by the Interoperability Board are so fundamental that they should be utilized in their entirety regardless of advancements in technology.

    Response: FirstNet fully appreciates the value of the minimum technical requirements developed by the Interoperability Board and the critical role such requirements will have in the development and maintenance of the NPSBN. However, at the same time, FirstNet seeks to ensure that the most robust and technologically advanced network as possible is established for public safety in accordance with its statutory mission, and FirstNet is specifically directed by the Act to consider advancements in technology in the development and maintenance of the NPSBN.22 Accordingly, FirstNet intends to operate with those principles and directives in mind in forming the technical requirements for the network.

    22See 47 U.S.C. 1422(b), 1426(c)(4).

    Comment #14: Multiple commenters urged FirstNet to use open standards in the implementation of advancements in technology, focusing on 3GPP architecture and interfaces that ensure operability, interoperability, and backwards compatibility. Some of these commenters pointed out that the Interoperability Board Report contemplates advancements in technology and supports the open standards process.

    Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter. We note that the Act requires that the NPSBN be based on commercial standards, including those developed by 3GPP and that comply with the Interoperability Board Report.

    Comment #15: A few commenters suggested that FirstNet rely on the Interoperability Board or a similar independent technical advisory board going forward to establish and maintain ongoing minimum technical requirements and compliance with those requirements, in light of technological advances.

    Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.

    Comment #16: Some commenters offered input as to what delineates non-material versus material changes in the minimum technical requirements. Most commenters focused on critical features or functions being backwards compatible, as well as avoiding any reduction in the quality of mission critical service to end users.

    Response: FirstNet acknowledges these recommendations and will consider them as any applicable decisions are developed on the matter. FirstNet's goal is to ensure that the NPSBN operates in a manner that satisfies public safety's critical communication needs and is consistent with the material terms of the Interoperability Board report.

    3. Final Definition of “Rural”

    The Act directs that FirstNet “shall require deployment phases with substantial rural coverage milestones as part of each phase of the construction and deployment of the network . . . [and] utilize cost-effective opportunities to speed deployment in rural areas.” 23 Additionally, the Act states, in relevant part, that FirstNet “shall develop . . . requests for proposals with appropriate . . . timetables for construction, including by taking into consideration the time needed to build out to rural areas.” 24 Finally, the Act explains that FirstNet “shall develop . . . requests for proposals with appropriate . . . coverage areas, including coverage in rural and nonurban areas.” 25

    23 47 U.S.C. 1426(b)(3) (emphasis added).

    24 47 U.S.C. 1426(c)(1)(A)(i) (emphasis added).

    25 47 U.S.C. 1426(c)(1)(A)(ii) (emphasis added).

    Since the Act does not define “rural,” we found it necessary to define this term in order to fulfill our duties with respect to the above noted statutory rural coverage requirements.26 Accordingly, FirstNet makes the following final interpretation regarding the definition of “rural” under the Act:

    26 We appreciate the position the FCC has taken in this regard, and we are committed to fulfill our duties in a way that will meet these rural coverage requirements. See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012 et al., PS Docket 12-94 et al., Notice of Proposed Rulemaking, 28 FCC Rcd 2715, 2728-29 ¶ 46 (2013) (Band 14 NPRM) (noting that, “We do not believe the Commission should specify rural milestones as a condition of FirstNet's license at this time. Rather, we recognize that at this early stage, the success of FirstNet requires flexibility with respect to deployment and planning, including deployment in rural areas. Moreover, FirstNet has an independent legal obligation under the Act to develop requests for proposals with appropriate timetables for construction, taking into account the time needed to build out in rural areas, and coverage areas, including coverage in rural and nonurban areas. In addition, in light of the Congressional oversight that will be exercised over FirstNet and its other transparency, reporting and consultation obligations, we do not believe it is necessary for the Commission to set specific benchmarks in this regard in these rules.”).

    (1) FirstNet defines “rural,” for the purposes of the Act, as having the same meaning as “rural area” in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (“Rural Electrification Act” or “REA”). Section 601(b)(3) of the Rural Electrification Act provides that “[t]he term `rural area' means any area other than—(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.” In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the “terms `rural' and `rural area' mean any area other than—(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).” Thus, as defined herein, the term “rural” means any area that is not:

    • A city, town, or incorporated area that has a population of greater than 20,000 inhabitants

    • any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants.

    FirstNet also inquired whether there should be a lower boundary separate from the definition of “rural,” such as “wilderness” or “frontier.” Based in part on the comments received, FirstNet has reached the following final conclusion:

    (2) FirstNet concludes that a lower boundary (e.g., “wilderness,” “frontier”) is not necessary to satisfy its rural coverage requirements under the Act, and thus FirstNet does not intend to establish any such boundary.

    Analysis of and Responses to Comments on Definition of Rural

    Summary: Several commenters agreed with FirstNet's proposed definition of “rural,” pointing to the logic in using the Rural Electrification Act definition. Many of these commenters noted that the Rural Electrification Act definition is widely known and used. Some specifically agreed that adopting the Rural Electrification Act definition makes sense in light of U.S. Department of Agriculture's (“USDA”) use of the definition in the Rural Broadband Access Loan and Loan Guarantee Program.

    However, several other commenters disagreed with FirstNet's proposed definition of rural, suggesting that the Rural Electrification Act definition was inadequate. Multiple commenters expressed concerns that the Rural Electrification Act definition would not accurately measure or reflect the rural areas of a State.

    Comment #17: One commenter suggested that the geography of a State could complicate the Rural Electrification Act's application due to many remote, small but densely populated communities and areas without any defined government or established limits.

    Response: FirstNet acknowledges this comment and recognizes that certain States may not agree that the Rural Electrification Act definition (or any other definition for that matter) adequately defines rural areas for that State due to unique geographic or other circumstances. However, because FirstNet's mission is to ensure the establishment of a nationwide public safety broadband network, it is necessary to formulate a single, objective definition that can be reasonably applied on a national basis. By way of example, the Rural Electrification Act definition of “rural area” has been adopted by other federal agencies in determining rural areas on a national basis, including by the USDA in its Rural Broadband Access Loan and Loan Guarantee Program, for application nationwide.27

    27 The USDA was designated as the lead federal agency for rural development by the Rural Development Policy Act of 1980. See 7 U.S.C. 2204b.

    It is also important to note that the primary purpose of the definition of “rural” under the Act is to measure whether the statutory requirement to include “substantial rural coverage milestones” in each phase of network deployment has been met. The definition does not determine a state or territory's ultimate coverage, which instead will be determined by the input obtained through the consultation process along with FirstNet's available resources.28

    28See 47 U.S.C. 1426(c)(2).

    Comment #18: Some commenters suggested that FirstNet adopt a modified or simplified aggregate population-derived definition utilizing various alternative methodologies. Specifically, a couple of commenters proposed the use of the U.S. Census Bureau's definition of “rural”—i.e., all areas that are not “urban areas,” which consist of Urbanized Areas (50,000 or more people) and Urban Clusters (at least 2,500 and less than 50,000 people).

    Response: FirstNet recognizes that there are alternative definitions of “rural” utilized by other federal and state government entities and acknowledges that such definitions could be applied in the context of the nationwide public safety broadband network. Consistent with its analysis in the First Notice, FirstNet continues to believe, however, that the Rural Electrification Act's definition of “rural area” is sufficiently precise to allow for consistent application, as well as widely known and familiar to rural telecommunications providers, rural communities, and other stakeholders considering its utilization specifically with respect to rural broadband issues. In addition, other federal agencies have adopted the Rural Electrification Act definition. The USDA, in particular, utilizes this definition in a similar context through its implementation of the Rural Broadband Access Loan and Loan Guarantee Program, which funds the costs of construction, improvement, and acquisition of facilities and equipment to provide broadband service to eligible rural areas.

    Comment #19: Another commenter proposed the adoption of the definition used by USDA's Rural Business Service, indicating that rural areas under such definition are those with 50,000 persons or less excluding areas adjacent to communities larger than 50,000 persons.

    Response: See the response to Comment #18 above.

    Comment #20: Based on concerns expressed regarding the omission of unincorporated areas and the potential confusion caused by the “adjacent and contiguous” clause in the definition, an additional commenter recommended that “rural” be defined as a city, town, incorporated area, or unincorporated area that has a population of 20,000 or less.

    Response: FirstNet acknowledges the comment. To provide some additional clarity, we note that in identifying cities, towns, incorporated areas, and urbanized areas, FirstNet intends to leverage the U.S. Census definition of “places,” which is inclusive of towns, cities, villages, boroughs, and Census Designated Places (CDPs) (which in turn are inclusive, at least in part, of unincorporated areas).29

    29See U.S. Census Bureau, Geographic Terms and Concepts—Place, http://www.census.gov/geo/reference/gtc/gtc_place.html.

    Comment #21: A few commenters advocated for a definition based on population density on a per county basis, with varying formulations. For instance, one such commenter proposed to define rural as a county with a population density of less than 160 persons per square mile, while another commenter proffered any county (i) with a population density of 100 or fewer inhabitants or (ii) of less than 225 square miles. A couple of other commenters suggested using a density of 5/7 to 159 persons per square mile on a county-by-county basis. Similarly, another commenter recommended adopting the definition used by the School-to-Work Opportunities program (i.e., a county, block number area in a nonmetropolitan county, or consortium of counties or such block number areas with a population density of 20 or fewer persons per square mile), reasoning that the definition is simple, from a program with a comparable process and approach (grant eligibility based on an approved State plan, intergovernmental cooperation, seed money for initial planning and development of school-to-work transition system), more objective, and more accurate in identifying rural areas.

    Response: See the response to Comment #18 above.

    Comment #22: Multiple commenters maintained that instead of adopting the Rural Electrification Act (or any other single definition), the definition of “rural” should be determined on a state-by-state basis.

    Response: FirstNet recognizes the Act strikes a balance between establishing a nationwide network and providing States an opportunity to make certain decisions about local implementation. As noted above, however, the primary purpose of the definition of “rural” is for measuring whether “substantial rural coverage milestones” have been included in each phase of deployment, which is required on a national basis. Thus, as a practical matter, there must be a single, uniform, and objective definition of “rural” that can be applied nationwide to assess whether such milestones have been met by FirstNet deployment.

    4. Existing Infrastructure

    Multiple provisions of the Act direct FirstNet to leverage existing infrastructure when “economically desirable.” 30 47 U.S.C. 1426(b)(1)(C) requires FirstNet in issuing RFPs to “encourag[e] that such requests leverage, to the maximum extent economically desirable, existing commercial wireless infrastructure to speed deployment of the network.”

    30See 47 U.S.C. 1426(b)(1)(C), (b)(3), (c)(3).

    Similarly, 47 U.S.C. 1426(b)(3)—in addressing rural coverage and referring to FirstNet's duty and responsibility to issue RFPs—requires that “[t]o the maximum extent economically desirable, such proposals shall include partnerships with existing commercial mobile providers to utilize cost-effective opportunities to speed deployments in rural areas.”

    Finally, 47 U.S.C. 1426(c)(3) requires that in carrying out its various requirements related to the deployment and operation of the NPSBN, “the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, State, tribal, or local infrastructure.” The Act, however, does not define or establish any criteria for determining economic desirability. FirstNet reaches the following conclusions regarding its obligations to leverage existing infrastructure under 47 U.S.C. 1426:

    1. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive proposals leverage existing infrastructure in accordance with the provision.

    2. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable.

    3. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is “economically desirable,” including:

    a. Infrastructure type/characteristics

    b. security (physical, network, cyber, etc.)

    c. suitability/viability (ability to readily use, upgrade, and maintain)

    d. readiness for reuse (e.g., already in use for wireless communications)

    e. scope of use (e.g., range of coverage)

    f. availability/accessibility (time/obstacles to acquiring access/use)

    g. any use restrictions (e.g., prohibitions/limitations on commercial use)

    h. relationships with infrastructure owners/managers (e.g., ease/difficulty in working with owners/managers)

    i. available alternatives in the area

    Analysis of and Responses to Comments on Leveraging Existing Infrastructure and Economic Desirability

    Summary: All commenters on the subject agreed with FirstNet's above interpretations of 47 U.S.C. 1426(b)(1)(C) and (b)(3) that the provisions are intended to require FirstNet to encourage, through its RFPs, that such responsive proposals leverage existing infrastructure and partnerships where economically desirable. Many of these commenters emphasized the importance of utilizing the RFP process to leverage existing assets and partnerships to lower costs and increase speed to market.

    Comment #23: Some commenters provided input regarding the factors to be considered in making an economic desirability determination, focusing largely on cost.

    Response: Although FirstNet agrees that cost is a major factor in assessing economic desirability, we do not believe it is the sole consideration. There are several other factors, as noted above, that are critical to making an informed determination as to whether the infrastructure should be leveraged. For instance, it is essential to understand the infrastructure's suitability for FirstNet's purposes, as well as its availability and readiness for use. Likewise, FirstNet's financial sustainability model is based in large part on its ability to lease excess spectrum capacity to commercial entities for secondary use, and thus consideration of any limitations on commercial use of the infrastructure is imperative.

    Comment #24: A couple of commenters suggested other factors besides cost in making an economic desirability determination of whether to leverage infrastructure. One such commenter recommended the consideration of geography and breadth of coverage in addition to cost. Another commenter urged that the requirements of public safety should be considered as a factor.

    Response: FirstNet acknowledges these recommendations and believes they are encompassed within FirstNet's final conclusion above regarding economic desirability factors.

    D. Fees

    FirstNet is required by the Act to be a self-funding entity and has been authorized to assess and collect certain fees for use of the network.31 Specifically, FirstNet has been authorized to assess and collect a (1) network user fee; (2) lease fee related to network capacity (also known as covered leasing agreement); (3) lease fees related to network equipment and infrastructure; and (4) a fee for State use of elements of the core network.32 In accordance with these provisions, FirstNet makes the following conclusions related to both the assessment and collection of fees authorized under the Act.

    31See 47 U.S.C. 1428, 1442(f); 1426(b)(4)(C).

    32 47 U.S.C. 1428, 1442(f).

    General

    (1) FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428 (a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable.

    Network User Fees

    (2) FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the nationwide public safety broadband network.

    State Core Network User Fees

    (3) FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f) are distinct from and can be assessed in addition to any other fees authorized under the Act.

    Lease Fees Related to Network Capacity and Covered Leasing Agreements

    (4) FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to “construct, manage, and operate” the entire FirstNet network, either from a coverage perspective or exclusively within a specific location.

    (5) FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area.

    (6) FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network.

    (7) FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement.

    (8) FirstNet interprets the reference to “network capacity” in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and includes the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers.

    (9) FirstNet interprets the term “secondary basis” under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act.

    (10) FirstNet interprets the phrase “spectrum allocated to such entity” found in 47 U.S.C. 1428(a)(3)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the FCC under call sign “WQQE234” to be allocated for use on a secondary basis under a covered leasing agreement.

    (11) FirstNet concludes the reference to “dark fiber” in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities.

    Network Equipment and Infrastructure Fee

    (12) FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity.

    (13) FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure.

    Analysis of and Responses to Comments on Fees

    Summary: The majority of commenters agreed with the various interpretations related to the assessment and collection of fees by FirstNet. The commenters generally understood the authority the Act gives FirstNet to assess and collect fees and the importance of such fees as a key funding resource necessary to build, operate, and maintain the NPSBN. However, a few commenters, as described and responded to below, either disagreed with certain interpretations or provided general comments relating to the assessment and collection of the various fees under the Act.

    Comment #25: Two commenters agreed that FirstNet is authorized to assess a fee for use of the core network, but suggested that States assuming RAN deployment responsibilities should only pay the costs associated with using the core network and spectrum lease; they should not have to pay a network user or subscription fee, and that FirstNet is not allowed to, or should not, impose `user' fees on opt-out States in a cumulative manner as interpreted by FirstNet.

    Response: FirstNet disagrees and believes the Act authorizes FirstNet to assess a user or subscription fee to each entity, including a State choosing to deploy its own radio access network, that seeks access to or use of the network. Specifically, the Act authorizes FirstNet to collect a “user or subscription fee from each entity, including any public safety entity or secondary user, that seeks access to or use of the [NPSBN].” 33 Consequently, a plain reading of this provision does not appear to provide any exclusionary language that would limit which entities may be charged a fee for access to or use of the network. Rather, as discussed in the First Notice, the use of the term “including” rather than “consisting” when describing the scope of entities that may be charged a network user fee indicates that this group is not limited to only public safety entities or secondary users, but would include other entities such as a State. Thus, FirstNet believes the plain language of the Act supports the conclusion that FirstNet may charge a user or subscription fee to any eligible user who seeks access to or use of the nationwide public safety broadband network, including, as appropriate, a State assuming responsibilities for radio access network deployment.

    33 47 U.S.C. 1428(a)(1) (emphasis added).

    Comment #26: One commenter suggested that all public safety user fees should include nationwide coverage, and should be for unlimited use of the NPSBN. For example, a flat fee for unlimited usage (and no roaming fees) should be charged within each State, similar to today's carrier billing model.

    Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN.

    Comment #27: One commenter suggested that while the Act is unambiguous on allowing FirstNet to assess a fee to States assuming RAN responsibilities for use of the core network, it is important that this fee not be set so high so as to discourage States from opting out of the NPSBN. The commenter further noted that the ability of States to construct their own RAN is clearly permissive under the Act and, in fact, could enable significant growth and adoption of the NPSBN as long as the user fees for opt-out states are reasonable and contemplate the budgets of State and local public safety entities.

    Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN.

    Comment #28: Two commenters disagreed that “all” of the FirstNet Band 14 spectrum can be allocated for secondary use under a covered leasing agreement.

    Response: FirstNet believes its interpretation that the Act allows all or part of the spectrum licensed to FirstNet by the FCC under call sign “WQQE234” to be allocated for secondary use is supported by language of the Act. FirstNet is the entity created by the Act to ensure the establishment of the NPSBN, and as such has a duty to ensure the efficient use of the funding resources available to fulfill this duty, including the ability to permit access to spectrum capacity on a secondary basis. To best utilize these funding resources, the Act authorizes FirstNet to enter into covered leasing agreements which permit an entity entering into such an agreement to have access to, or use of, network capacity on a secondary basis for non-public safety services. The Act, as analyzed in the First Notice, does not provide any cap or limitation on how much of the network capacity may be allocated on a secondary basis. Thus, FirstNet believes the Act provides it flexibility to determine how best to utilize network capacity as a funding resource to ensure both the establishment and self-sustainability of the network. Despite this flexibility, however, it is important to note that public safety entities will always have priority use of the NPSBN over any non-public safety user that gains access to, or use of, the network on a secondary basis.

    Comment #29: One commenter suggested that the States should determine how much capacity/spectrum is made available within its borders under a covered leasing agreement—rather than FirstNet making the determination.

    Response: FirstNet is the entity created by the Act to ensure the establishment of the NPSBN and is also the sole licensee of the 700 MHz D block spectrum and the existing public safety broadband spectrum.34 Thus, FirstNet is the sole entity responsible for determining how to allocate the spectrum under a covered leasing agreement.

    34 47 U.S.C. 1421, 1422.

    Comment #30: One commenter cautioned FirstNet to ensure there is not an undue expectation by the covered leasing agreement lessee that its lease of the spectrum supersedes public safety's access to, and use of, that spectrum as a priority in all cases, and at all times.

    Response: FirstNet acknowledges the comment and reiterates that its primary mission is to ensure the establishment of a nationwide, interoperable network for public safety. Accordingly, public safety will always have priority use of the NPSBN over any non-public safety user that gains access to, or use of, the network on a secondary basis through a covered leasing agreement.

    Comment #31: One commenter recommended that FirstNet interpret 47 U.S.C. § 1428(a)(3) to only apply to the RAN hardware in States that choose to participate in the NPSBN as proposed by FirstNet.

    Response: FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for the construction, owns the equipment, or does not own the equipment, but, through a contract, has the right to sublease the equipment or infrastructure. Thus, unless the RAN hardware in any State falls within the criteria above, FirstNet would not have the authority to assess and collect a fee for use of such infrastructure or equipment.

    Dated: October 15, 2015. Jason Karp, Chief Counsel (Acting), First Responder Network Authority.
    [FR Doc. 2015-26621 Filed 10-19-15; 8:45 am] BILLING CODE 3510-TL-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-134-2015] Foreign-Trade Zone 142—Salem/Millville, New Jersey; Application for Subzone; Nine West Holdings, Inc.; West Deptford, New Jersey

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the South Jersey Port Corporation, grantee of FTZ 142, requesting subzone status for the facilities of Nine West Holdings, Inc., located in West Deptford, New Jersey. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on October 14, 2015.

    The proposed subzone would consist of the following sites: Site 1 (27.18 acres) 1245 Forest Parkway West, West Deptford; and, Site 2 (33.28 acres) 1250 Parkway West, West Deptford. The proposed subzone would be subject to the existing activation limit of FTZ 142. No authorization for production activity has been requested at this time.

    In accordance with the FTZ Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is November 30, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to December 14, 2015.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Kathleen Boyce at [email protected] or (202) 482-1346.

    Dated: October 14, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-26632 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-67-2015] Foreign-Trade Zone (FTZ) 183—Austin, Texas; Notification of Proposed Production Activity; Flextronics America, LLC (Automatic Data Processing Machines); Austin, Texas

    Flextronics America, LLC (Flextronics) submitted a notification of proposed production activity to the FTZ Board for its facility in Austin, Texas within Subzone 183C. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on October 9, 2015.

    Flextronics already has authority to produce automatic data processing machines within Subzone 183C. The current request would add finished products and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Flextronics from customs duty payments on the foreign status materials/components used in export production. On its domestic sales, Flextronics would be able to choose the duty rates during customs entry procedures that apply to: Video card subassemblies; CPU and video card connector subassemblies; external power and USB port card subassemblies; main controller board subassemblies; and, internal power supply subassemblies (duty-free) for the foreign status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.

    The materials/components sourced from abroad include: Copper alloy screws; and, lithium batteries (duty rate ranges from 3.0 to 3.4%).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is November 30, 2015.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Elizabeth Whitman at [email protected] or (202) 482-0473.

    Dated: October 13, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-26635 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Membership of the Bureau of Industry and Security Performance Review Board AGENCY:

    Bureau of Industry and Security, Department of Commerce.

    ACTION:

    Notice of membership on the Bureau of Industry and Security's Performance Review Board.

    SUMMARY:

    In accordance with 5 U.S.C. 4314(c)(4), the Bureau of Industry and Security (BIS), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of BIS's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for BIS's Performance Review Board begins on October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ruthie B. Stewart, Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-3130.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S.C. 4314(c)(4), the Bureau of Industry and Security (BIS), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of BIS's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for BIS's Performance Review Board begins on October 20, 2015 The name, position title, and type of appointment of each member of BIS's Performance Review Board are set forth below by organization:

    Department of Commerce, Bureau of Industry and Security (BIS) Daniel O. Hill, Deputy Under Secretary for Industry and Security, Career SES, Chairperson Matthew S. Borman, Deputy Assistant Secretary for Export Administration, Career SES Richard R. Majauskas, Deputy Assistant Secretary for Export Enforcement, Career SES Carol M. Rose, Chief Financial Officer and Director of Administration, Career SES (New Member) Department of Commerce, Office of the General Counsel (OGC) Brian D. DiGiacomo, Chief, Employment and Labor Law Division, Career SES Department of Commerce, Office of the Secretary (OS) Theodore E. LeCompte, Deputy Chief of Staff, NonCareer SES, Political Advisor (New Member) Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2015-26583 Filed 10-19-15; 8:45 am] BILLING CODE 3510-25-P
    DEPARTMENT OF COMMERCE International Trade Administration Environmental Technologies Trade Advisory Committee Public Meeting AGENCY:

    International Trade Administration, DOC.

    ACTION:

    Notice of Federal Advisory Committee meeting.

    SUMMARY:

    This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).

    DATES:

    The meeting is scheduled for Thursday, November 12, 2015, at 8:30 a.m. Eastern Standard Time (EST).

    ADDRESSES:

    The meeting will be held in Room 1412 at the U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Avenue NW., Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Maureen Hinman, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 4053, 1401 Constitution Avenue NW., Washington, DC 20230 (Phone: 202-482-0627; Fax: 202-482-3835; email: [email protected]) This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to OEEI at (202) 482-5225 no less than one week prior to the meeting.

    SUPPLEMENTARY INFORMATION:

    The meeting will take place from 8:30 a.m. to 3:30 p.m. EDT. The general meeting is open to the public and time will be permitted for public comment from 3:00-3:30 p.m. EDT. Those interested in attending must provide notification by Monday, November 2, 2015 at 5:00 p.m. EDT, via the contact information provided above. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. Minutes will be available within 30 days of this meeting.

    Topics to be considered: The agenda for this meeting will include discussion of priorities and objectives for the committee, trade promotion programs within the International Trade Administration, and subcommittee working meetings.

    Background: The ETTAC is mandated by Public Law 103-392. It was created to advise the U.S. government on environmental trade policies and programs, and to help it to focus its resources on increasing the exports of the U.S. environmental industry. ETTAC operates as an advisory committee to the Secretary of Commerce and the Trade Promotion Coordinating Committee (TPCC). ETTAC was originally chartered in May of 1994. It was most recently re-chartered until August 2016.

    Dated: October 14, 2015. Edward A. O'Malley, Office Director, Office of Energy and Environmental Industries.
    [FR Doc. 2015-26526 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration Membership of the International Trade Administration Performance Review Board AGENCY:

    International Trade Administration, Department of Commerce.

    ACTION:

    Notice of membership on the International Trade Administration's Performance Review Board.

    SUMMARY:

    In accordance with 5 U.S.C. § 4314(c)(4), the International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for ITA's Performance Review Board begins on October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S.C. § 4314(c)(4), the International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for ITA's Performance Review Board begins on October 20, 2015. The name, position title, and type of appointment of each member of ITA's Performance Review Board are set forth below by organization:

    Department of Commerce, International Trade Administration (ITA) Praveen M. Dixit, Deputy Assistant Secretary for Trade Policy and Analysis, Career SES (New Member) Christian Marsh, Deputy Assistant Secretary for AD/CVD Operations, Career SES (New Member) Jennifer L. Pilat, Director, Advocacy Center, Non-Career SES, Political Advisor, (New Member) Timothy Rosado, Chief Financial and Administrative Officer, Career SES, Chairperson Department of Commerce, Office of the Secretary (OS), Office of the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA) Gay G. Shrum, Director for Administrative Programs, Career SES (New Member) Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2015-26576 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-122-854] Supercalendered Paper From Canada: Final Affirmative Countervailing Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) determines that countervailable subsidies are being provided to producers and exporters of supercalendered paper (SC paper) from Canada. The period of investigation is January 1, 2014, through December 31, 2014.

    DATES:

    Effective Date: October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Dana Mermelstein or David Neubacher, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1391 and (202) 482-5823, respectively.

    SUPPLEMENTARY INFORMATION: Background

    The petitioner in this investigation is the Coalition for Fair Paper Imports. The Coalition for Fair Paper Imports is composed of Madison Paper Industries and Verso Corporation. In addition to the Government of Canada, the mandatory respondents in this investigation are (1) Port Hawkesbury Paper LP, 6879900 Canada Inc., Port Hawkesbury Investments Ltd., Port Hawkesbury Paper GP, Port Hawkesbury Paper Holdings Ltd., Port Hawkesbury Paper Inc., and Pacific West Commercial Corporation (collectively, Port Hawkesbury); and (2) Resolute FP Canada Inc., Fibrek General Partnership, Forest Products Mauricie LP, Produits Forestiers Petit-Paris Inc., and Société en Commandite Scierie Opitciwan (collectively, Resolute).

    Case History

    The events that have occurred since the Department published the Preliminary Determination1 on August 3, 2015, are discussed in the Issues and Decision Memorandum.2 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/.

    1See Supercalendered Paper from Canada: Preliminary Affirmative Countervailing Duty Determination, 80 FR 45951 (August 3, 2015) (Preliminary Determination), and accompanying Preliminary Decision Memorandum.

    2See Memorandum from Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, regarding “Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Supercalendered Paper from Canada,” dated concurrently with this notice (Issues and Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is SC paper. For a complete description of the scope of the investigation, see Appendix 1 to this notice.

    Methodology

    The Department conducted this countervailing duty investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues that parties have raised, and to which we responded in the Issues and Decision Memorandum, is attached to this notice as Appendix 2. Based on our analysis of the comments received and our findings at verification, we made certain changes to the respondents' subsidy rate calculations since the Preliminary Determination.

    For this determination, we have relied partially on facts available for Resolute. Further, we have drawn an adverse inference in selecting from among the facts otherwise available to calculate the ad valorem rate for Resolute, because the company did not act to the best of its ability when responding to the Department's request for information.3 For further information, see “Use of Facts Otherwise Available and Adverse Inferences” in the Issues and Decision Memorandum.

    3See sections 776(a) and (b) of the Act.

    Suspension of Liquidation

    In accordance with section 705(c)(1)(B)(i) of the Act, we calculated a rate for each individually investigated respondent company. Section 705(c)(5)(A)(i) of the Act states that, for companies not individually investigated, we will determine an “all others” rate equal to the weighted-average countervailable subsidy rates established for exporters and producers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates determined entirely under section 776 of the Act.

    Notwithstanding the language of section 705(c)(5)(A)(i) of the Act, we have calculated the “all others” rate as a weighted average of the rates of Port Hawkesbury and Resolute, using the publicly ranged values for each company's exports of subject merchandise to the United States to calculate the weighted average, because to use the actual sales values risks disclosure of proprietary information.4

    4See Memorandum to the File, “Calculation of the All Others Rate for the Final Determination in the Countervailing Duty Investigation of Supercalendered Paper from Canada,” (October 13, 2015).

    We determine the countervailable subsidy rates to be:

    Company Subsidy
  • rate
  • (percent)
  • Port Hawkesbury 20.18 Resolute 17.87 All Others 18.85

    As a result of our Preliminary Determination, and pursuant to section 703(d) of the Act, we instructed U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of subject merchandise from Canada that were entered or withdrawn from warehouse, for consumption on or after August 3, 2013, the date of publication of the Preliminary Determination in the Federal Register, and to collect cash deposits of estimated countervailing duty at the rates determined in the Preliminary Determination.

    In accordance with section 705(c)(1)(B)(ii) of the Act, we are directing CBP to continue to suspend liquidation of all imports of the subject merchandise from Canada that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. The suspension of liquidation instructions will remain in effect until further notice. We are also directing CBP to collect cash deposit of estimated countervailing duty at the rates identified above.

    We will issue a countervailing duty order pursuant to section 706(a) of the Act if the United States International Trade Commission (ITC) issues a final affirmative injury determination. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.

    ITC Notification

    In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.

    Return or Destruction of Proprietary Information

    In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act.

    Dated: October 13, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix 1 Scope of the Investigation

    The merchandise covered by this investigation is supercalendered paper (SC paper). SC paper is uncoated paper that has undergone a calendering process in which the base sheet, made of pulp and filler (typically, but not limited to, clay, talc, or other mineral additive), is processed through a set of supercalenders, a supercalender, or a soft nip calender operation.1

    1 Supercalendering and soft nip calendering processing, in conjunction with the mineral filler contained in the base paper, are performed to enhance the surface characteristics of the paper by imparting a smooth and glossy printing surface. Supercalendering and soft nip calendering also increase the density of the base paper.

    The scope of this investigation covers all SC paper regardless of basis weight, brightness, opacity, smoothness, or grade, and whether in rolls or in sheets. Further, the scope covers all SC paper that meets the scope definition regardless of the type of pulp fiber or filler material used to produce the paper.

    Specifically excluded from the scope are imports of paper printed with final content of printed text or graphics.

    Subject merchandise primarily enters under Harmonized Tariff Schedule of the United States (HTSUS) subheading 4802.61.3035, but may also enter under subheadings 4802.61.3010, 4802.62.3000, 4802.62.6020, and 4802.69.3000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.

    Appendix 2 List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Investigation IV. Subsidies Valuation a. Period of Investigation b. Allocation Period c. Attribution of Subsidies d. Denominators e. Loan Interest Rate Benchmarks and Discount Rates V. Use of Facts Otherwise Available and Adverse Inferences VI. Analysis of Programs a. Programs Determined to be Countervailable b. Programs Determined To Be Not Used or Not to Confer a Benefit During the POI c. Program Determined To Be Not Countervailable VII. Analysis of Comments Comment 1: The Department's Selection of Mandatory and Voluntary Respondents Comment 2: The Calculation of the All Other's Rate Comment 3: Whether the Department Should Allow Irving to Post Bonds Until the Final Results of an Expedited Review Comment 4: Whether Port Hawkesbury is Creditworthy Comment 5: Whether the GNS' Hot Idle Funding is Extinguished Comment 6: Whether the GNS' FIF Funding is Extinguished Comment 7: Whether Assistance Under the Outreach Agreement is Countervailable Comment 8: Whether Port Hawkesbury's Private Stumpage Purchases Provide an Appropriate Benchmark for Port Hawkesbury's Crown Stumpage Purchases Comment 9: Land for MTAR Comment 10 Whether the NSUARB is an Authority Comment 11: Whether the Government Entrusted or Directed NSPI to Provide a Financial Contribution Comment 12: Whether to Use a Tier 1 Benchmark Comment 13: Whether the Port Hawkesbury LRR is based on Market Principles Comment 14: Whether Steam for LTAR Provides a Countervailable Subsidy Comment 15: Whether the Property Tax Reduction in Richmond County Provides a Countervailable Subsidy Comment 16: Whether the PWCC Indemnity Loan Program Should be Excluded from Port Hawkesbury's Cash Deposit Rate Comment 17: Whether to Apply AFA to Resolute Comment 18: Whether the Support for the Forest Industry Program (Investissement Québec Loans) Provides Countervailable Subsidies to Resolute's SC Paper Production Comment 19: Whether Certain Programs Provides Countervailable Subsidies to Resolute's SC Paper Production Comment 20: Whether Subsidies are Extinguished by Changes in Ownership VIII. Conclusion Appendix I: Acronym and Abbreviation Table Appendix II: Litigation Table Appendix III: Administrative Determinations and Notices Table Appendix IV: Case-Related Documents Appendix V: Miscellaneous Table (Regulatory, Statutory, Articles, etc.)
    [FR Doc. 2015-26634 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [Court No. 12-00296] Final Redetermination Pursuant to Court Remand, Wheatland Tube Co. v. United States Summary

    On August 3, 2015, the U.S. Court of International Trade (CIT or Court) granted the request of the Department of Commerce (Department) for a voluntary remand in the above-referenced proceeding.1 The Remand Order involves a challenge to the Department's final determination in a proceeding conducted under Section 129 of the Uruguay Round Agreements Act (Section 129) related to the Department's final affirmative antidumping duty (AD) determination on circular welded carbon quality steel pipe (CWP) from the People's Republic of China (PRC) for the period October 1, 2006, through March 31, 2007.2

    1See Wheatland Tube Co. v. United States, Court No. 12-00296 (August 3, 2015) (Remand Order).

    2See Implementation of Determinations Under Section 129 of the Uruguay Round Agreements Act: Certain New Pneumatic Off-the-Road Tires; Circular Welded Carbon Quality Steel Pipe; Laminated Woven Sacks; and Light-Walled Rectangular Pipe and Tube From the People's Republic of China, 77 FR 52683 (August 30, 2012) (Implementation Notice); See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Antidumping and Countervailing Duty Operations, “Final Determination: Section 129 Proceeding Pursuant to the WTO Appellate Body's Findings in WTO DS379 Regarding the Antidumping and Countervailing Duty Investigations of Circular Welded Carbon Quality Steel Pipe from the People's Republic of China,” (July 31, 2012) (Final Determination Memorandum); see also Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Circular Welded Carbon Quality Steel Pipe from the People's Republic of China, 73 FR 31970 (June 5, 2008) (Final Determination).

    The CIT granted the Department's request for a voluntary remand “in light of Commerce's remand redetermination in Wheatland Tube Co. v. United States, Consol. Court No. 12-00298, Redetermination Pursuant to Court Remand, April 27, 2015, ECF No. 70” (CVD Remand Redetermination), which dealt with the companion CWP countervailing duty (CVD) proceeding.3 In the CVD Remand Redetermination, the Department found “that there is no basis for making an adjustment to the companion AD rates under” 19 U.S.C. 1677f-1(f), because no party in the companion CVD proceeding responded to the Department's request for information concerning the issue of “double remedies.”

    3See Remand Order.

    In light of the CVD Remand Redetermination, we have reconsidered our finding regarding the double remedies adjustment afforded to respondents in the underlying AD proceeding, and found that there is no basis for making an adjustment to the AD rates under 19 U.S.C. 1677f-1(f). As such, in the draft redetermination, we denied the adjustment that we granted the respondents in the Final Determination Memorandum.

    The Department offered interested parties an opportunity to comment on the Draft Remand.4 On September 23, 2015, Plaintiff Wheatland Tube Company (Wheatland) and Consolidated Plaintiff United States Steel Corporation (U.S. Steel Corporation) submitted comments on the Draft Remand.5 In their letter, they stated the following:

    4See “Draft Remand Redetermination, Wheatland Tube Co. v. United States, Consol. Court No. 12-00296,” (September 18, 2015) (Draft Remand).

    5See Letter from the Domestic Interested Parties to the Department, “Comments On The Draft Remand Redetermination, Wheatland Tube Co. v. United States, Court No. 12-00296” (September 23, 2015).

    We support the Department's determination to “deny { } the adjustment that we granted respondents in the CWP AD Section 129 determination.” We have no other comments.6 (footnote omitted)

    6Id. at 1.

    No other interested party submitted comments.

    For the reasons discussed below, our Draft Remand remains unchanged, and we continue to deny the adjustment that we granted the respondents in the Final Determination Memorandum.

    Background Section 129 Proceeding

    On July 22, 2008, upon final affirmative determinations by the Department and the U.S. International Trade Commission, the Department published AD and CVD orders on CWP from the PRC.7 The Government of the People's Republic of China (GOC) challenged the CWP orders and three other sets of simultaneously imposed AD and CVD orders before the Dispute Settlement Body of the World Trade Organization (WTO). The WTO Appellate Body, in March 2011, found that the United States had acted inconsistently with its international obligations in several respects, including the potential imposition of overlapping remedies.8

    7See Notice of Antidumping Duty Order: Circular Welded Carbon Quality Steel Pipe from the People's Republic of China, 73 FR 42547 (July 22, 2008).

    8See United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, 611, WT/DS379/AB/R (Mar. 11, 2011) (WTO AB Report).

    The U.S. Trade Representative then announced the United States' intention to comply with the WTO's rulings and recommendations, and requested that the Department make a determination “not inconsistent with” the WTO AB Report.9 In the CVD proceeding, the GOC did not provide CWP-specific industry information for cost recovery and specific cost categories in the proceeding, but rather provided manufacturing-level data.

    9See Implementation Notice, 77 FR at 52684 (citing 19 U.S.C. 3538(b)(2)).

    Based upon its preliminary findings in the companion CVD proceeding using the non-CWP specific information mentioned above, the Department issued a preliminary determination memorandum on May 31, 2012, granting a double remedies adjustment to all respondents.10

    10See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Section 129 Proceeding Pursuant to the WTO Appellate Body's Findings in WTO DS379 Regarding the Antidumping Duty Investigation of Circular Welded Carbon Quality Steel Pipe (CWP) from the People's Republic of China: Preliminary Determination of Adjustments to the Antidumping Duty Cash Deposit Rates” (May 31, 2012) (Preliminary Determination Memorandum), at 7-8 and Attachment 1.

    After allowing parties to the proceeding an opportunity to submit factual information and comment on the Preliminary Determination Memorandum, the Department on July 31, 2012, issued its Final Determination Memorandum in the Section 129 proceeding on, inter alia, the double remedies issue.11 Based on its analysis, the Department found that there was a demonstration of:

    11See Final Determination Memorandum.

    {A} subsidy-(variable) cost-price link in the case of input price subsidies (i.e., subsidized inputs) for the CWP industry during the period of investigation (POI), from which we preliminarily estimated that 63.07 percent of the value of the subsidies that have impacted variable costs were “passed through” to export prices for the CWP industry during the POI.12

    12See Preliminary Determination Memorandum at 3; unchanged in the Final Determination Memorandum.

    As a result, the Department issued amended AD cash deposit rates, which reduced the weighted-average dumping margin for separate rate companies from 69.2 percent to 45.35 percent.13 The PRC-wide entity dumping margin also was reduced from 85.55 percent to 68.24 percent.14 Following consultations prescribed by Section 129, the Department, at the direction of the U.S. Trade Representative, published the Implementation Notice on August 30, 2012.

    13See Implementation Notice, 77 FR at 52687.

    14Id.

    Wheatland, U.S. Steel Corporation, and Plaintiff-Intervenors Allied Tube and Conduit and TMK IPSCO Tubulars (collectively, the Domestic Interested Parties) challenged the Department's AD and CVD Section 129 CWP determinations. In the litigation concerning the CVD determination (CVD Litigation), the Domestic Interested Parties challenged the Department's decision that an adjustment to the AD duty on U.S. CWP imports from the PRC is warranted to account for remedies that overlap those imposed by the CVD order.

    CVD Litigation

    In November 2014, the CIT issued an opinion and order in the CVD Litigation remanding the CWP CVD Section 129 determination to the Department for further consideration of its finding that certain countervailable subsidies reduced the average price of U.S. CWP imports, such that the reduction warranted a “double remedies” adjustment to the companion AD rates.15 In April 2015, the Department filed its remand redetermination in the CVD case.16

    15See Wheatland Tube Co. v. United States, 26 F. Supp. 3d 1372 (Ct. Int'l Trade 2014).

    16See CVD Remand Redetermination.

    In the CVD Remand Redetermination, the Department found “that there is no basis for making an adjustment to the companion AD rates under” 19 U.S.C. 1677f-1(f)(1)(b).17 In the CVD remand proceeding, the Department sent questionnaires to the original CVD respondents to obtain industry and respondent specific information necessary for its “double remedies” analysis.18 The Department also issued copies of the questionnaire to the GOC.19 Neither the CVD mandatory respondents nor the GOC, however, filed a questionnaire response, comments, or an extension request by the due date. Without the requested information from the respondents, the Department found that an adjustment under 19 U.S.C. 1677f-1(f) was not warranted.20

    17Id. at 10.

    18Id. at 2.

    19Id.

    20Id. at 8-9.

    In May 2015, the CIT sustained the Department's CVD Remand Redetermination and entered a final judgment in the CVD case.21 No party appealed the CIT's final judgment in the CVD case.

    21Wheatland Tube Co. v. United States, Consol. Court No. 12-00298, slip op. 15-44 (Ct. Int'l Trade May 7, 2015).

    AD Litigation

    On January 2, 2013, the CIT issued an order staying the litigation concerning the CWP AD Section 129 determination (AD Litigation), “pending the final disposition of Wheatland Tube Co. v. United States, Consol. Court No. 12-00298, including all appeals.” 22 Following the final disposition of the CVD Litigation, the CIT's stay of the AD Litigation lifted on July 8, 2015. On August 3, 2015, the CIT granted the Department's request for voluntary remand.23

    22Wheatland Tube Co. v. United States, Court No. 12-00296, Order, January 2, 2013, ECF No. 32.

    23See Remand Order.

    Final Redetermination

    In light of the CVD Remand Redetermination, we have reconsidered our finding regarding the double remedies adjustment granted to respondents in the CWP AD Section 129 determination. In the CVD Remand Redetermination, we found that an adjustment under 19 U.S.C. 1677f-1(f) requires a demonstration of a reduction in the average price of imports, for which the Department, in part, examines the links between the countervailed subsidy programs and the impact on the respondents' costs.

    Without the requested information from respondents in the CVD Remand Redetermination, the Department determined that such a demonstration has not been made at the CWP industry-specific level and there is no basis for making an adjustment to the AD rates under 19 U.S.C. 1677f-1(f). As such, for this final redetermination, we are denying the adjustment that we granted respondents in the CWP AD Section 129 determination.

    Accordingly, we have revised the AD rates that we calculated in the CWP AD Section 129 determination. The revised AD rates are listed in the attached Appendix, “Revised Antidumping Duty Cash Deposit Rates Pursuant to Remand Redetermination.”

    Dated: October 8, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix: Revised Antidumping Duty Cash Deposit Rates Pursuant To Remand Redetermination Exporter Producer Revised AD cash deposit rate
  • (%)
  • BEIJING SAI LIN KE HARDWARE CO., LTD XUZHOU GUANG HUAN STEEL TUBE PRODUCTS CO., LTD 69.2 BENXI NORTHERN PIPES CO., LTD BENXI NORTHERN PIPES CO., LTD 69.2 DALIAN BROLLO STEEL TUBES LTD DALIAN BROLLO STEEL TUBES LTD 69.2 GUANGDONG WALSALL STEEL PIPE INDUSTRIAL CO. LTD GUANGDONG WALSALL STEEL PIPE INDUSTRIAL CO. LTD 69.2 HENGSHUI JINGHUA STEEL PIPE CO., LTD HENGSHUI JINGHUA STEEL PIPE CO., LTD 69.2 HULUDAO STEEL PIPE INDUSTRIAL CO HULUDAO STEEL PIPE INDUSTRIAL CO 69.2 JIANGSU GUOQIANG ZINC-PLATING INDUSTRIAL CO., LTD JIANGSU GUOQIANG ZINC-PLATING INDUSTRIAL CO., LTD 69.2 JIANGYIN JIANYE METAL PRODUCTS CO., LTD JIANGYIN JIANYE METAL PRODUCTS CO., LTD 69.2 KUNSHAN HONGYUAN MACHINERY MANUFACTURE CO., LTD KUNSHAN HONGYUAN MACHINERY MANUFACTURE CO., LTD 69.2 KUNSHAN LETS WIN STEEL MACHINERY CO., LTD KUNSHAN LETS WIN STEEL MACHINERY CO., LTD 69.2 QINGDAO XIANGXING STEEL PIPE CO., LTD QINGDAO XIANGXING STEEL PIPE CO., LTD 69.2 QINGDAO YONGJIE IMPORT & EXPORT CO., LTD SHANDONG XINYUANGROUP CO., LTD 69.2 RIZHAO XINGYE IMPORT & EXPORT CO., LTD SHANDONG XINYUAN GROUP CO., LTD 69.2 SHANGHAI METALS & MINERALS IMPORT & EXPORT CORP BENXI NORTHERN PIPES CO., LTD 69.2 SHENYANG BOYU M/E CO., LTD BAZHOU DONG SHENG HOT-DIPPED GALVANIZED STEEL PIPE CO., LTD 69.2 SHIJIAZHUANG ZHONGQING IMP & EXP CO., LTD BAZHOU ZHUOFA STEEL PIPE CO. LTD 69.2 TIANJIN BAOLAI INT'L TRADE CO., LTD TIANJIN JINGHAI COUNTY BAOLAI BUSINESS AND INDUSTRY CO. LTD 69.2 TIANJIN NO. 1 STEEL ROLLED CO., LTD TIANJIN HEXING STEEL CO., LTD 69.2 TIANJIN NO. 1 STEEL ROLLED CO., LTD TIANJIN RUITONG STEEL CO., LTD 69.2 TIANJIN NO. 1 STEEL ROLLED CO., LTD TIANJIN YAYI INDUSTRIAL CO 69.2 TIANJIN XINGYUDA IMPORT & EXPORT CO., LTD TANGSHAN FENGNAN DISTRICT XINLIDA STEEL PIPE CO., LTD 69.2 TIANJIN XINGYUDA IMPORT & EXPORT CO., LTD TIANJIN LIFENGYUANDA STEEL GROUP 69.2 TIANJIN XINGYUDA IMPORT & EXPORT CO., LTD TIANJIN LITUO STEEL PRODUCTS CO 69.2 TIANJIN XINGYUDA IMPORT & EXPORT CO., LTD TIANJIN XINGYUNDA STEEL PIPE CO 69.2 WAH CIT ENTERPRISE GUANGDONG WALSALL STEEL PIPE INDUSTRIAL CO. LTD 69.2 WAI MING (TIANJIN) INT'L TRADING CO., LTD BAZHOU DONG SHENG HOT-DIPPED GALVANIZED STEEL PIPE CO., LTD 69.2 WEIFANG EAST STEEL PIPE CO., LTD WEIFANG EAST STEEL PIPE CO., LTD 69.2 WUXI ERIC STEEL PIPE CO., LTD WUXI ERIC STEEL PIPE CO., LTD 69.2 WUXI FASTUBE INDUSTRY CO., LTD WUXI FASTUBE INDUSTRY CO., LTD 69.2 ZHANGJIAGANG ZHONGYUAN PIPE-MAKING CO., LTD ZHANGJIAGANG ZHONGYUAN PIPE-MAKING CO., LTD 69.2 PRC-WIDE ENTITY 85.55
    [FR Doc. 2015-26601 Filed 10-19-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No. 150923882-5882-01] Federal Information Processing Standard (FIPS) 186-4, Digital Signature Standard; Request for Comments on the NIST-Recommended Elliptic Curves AGENCY:

    National Institute of Standards and Technology (NIST), Commerce.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) requests comments on Federal Information Processing Standard (FIPS) 186-4, Digital Signature Standard, which has been in effect since July 2013. FIPS 186-4 specifies three techniques for the generation and verification of digital signatures that can be used for the protection of data: the Rivest-Shamir-Adleman Algorithm (RSA), the Digital Signature Algorithm (DSA), and the Elliptic Curve Digital Signature Algorithm (ECDSA), along with a set of elliptic curves recommended for government use. NIST is primarily seeking comments on the recommended elliptic curves specified in Appendix D of the FIPS, but comments on other areas of the FIPS will also be considered. FIPS 186-4 is available at http://dx.doi.org/10.6028/NIST.FIPS.186-4.

    DATES:

    Comments on FIPS 186-4 must be received on or before December 4, 2015.

    ADDRESSES:

    Comments on FIPS 186-4 may be sent electronically to [email protected] with “Comment on FIPS 186” in the subject line. Written comments may also be submitted by mail to Information Technology Laboratory, ATTN: FIPS 186-4 Comments, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899-8930.

    The current FIPS 186-4 can be found at http://dx.doi.org/10.6028/NIST.FIPS.186-4.

    Comments received in response to this notice will be published electronically at http://csrc.nist.gov/, so commenters should not include information they do not wish to be posted (e.g., personal or confidential business information).

    FOR FURTHER INFORMATION CONTACT:

    Dr. Lily Chen, Computer Security Division, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899-8930, email: [email protected], phone: (301) 975-6974.

    SUPPLEMENTARY INFORMATION:

    FIPS 186 was initially developed by NIST in collaboration with the National Security Agency (NSA), using the Digital Signature Algorithm (DSA). Later versions of the standard approved the use of the Elliptic Curve Digital Signature Algorithm (ECDSA) and the Rivest-Shamir-Adleman (RSA) algorithm. American Standards Committee (ASC) X9 developed standards specifying the use of both ECDSA and RSA, including methods for generating key pairs, which were used as the basis for the later versions of FIPS 186.

    The ECDSA was included by reference in FIPS 186-2, the second revision to FIPS 186, which was announced in the Federal Register (65 FR 7507) and became effective on February 15, 2000. The FIPS was revised in order to align the standard with new digital signature algorithms included in ASC X9 standards. To facilitate testing and interoperability, NIST needed to specify elliptic curves that could be used with ECDSA. Working in collaboration with the NSA, NIST included three sets of recommended elliptic curves in FIPS 186-2 that were generated using the algorithms in the ANS X9.62 standard and Institute of Electrical and Electronics Engineers (IEEE) P1363 standards. The provenance of the curves was not fully specified, leading to recent public concerns that there could be an unknown weakness in these curves. NIST is not aware of any vulnerability in these curves when they are implemented correctly and used as described in NIST standards and guidelines.

    In the fifteen years since FIPS 186-2 was published, elliptic curve cryptography (ECC) has seen slow adoption outside certain communities. Past discussions on this topic have cited several possible reasons for this, including interoperability issues, performance characteristics, and concerns over intellectual property.

    In addition, advances in the understanding of elliptic curves within the cryptographic community have led to the development of new elliptic curves and algorithms whose designers claim to offer better performance and are easier to implement in a secure manner. Some of these curves are under consideration in voluntary, consensus-based Standards Developing Organizations.

    In 2014, NIST's primary external advisory board, the Visiting Committee on Advanced Technology (VCAT), conducted a review of NIST's cryptographic standards program. As part of their review, the VCAT recommended that NIST “generate a new set of elliptic curves for use with ECDSA in FIPS 186.”

    In June 2015, NIST hosted the technical workshop on Elliptic Curve Cryptography Standards to discuss possible approaches to promote the adoption of secure, interoperable and efficient elliptic curve mechanisms. Workshop participants expressed significant interest in the development, standardization and adoption of new elliptic curves. As a result of this input, NIST is considering the addition of new elliptic curves to the current set of recommended curves in FIPS 186-4. Comments received in response to this solicitation will be used to identify the needs, processes and goals for possible future standards activities.

    Request for Comments

    NIST requests comments on the following questions regarding the elliptic curves recommended in FIPS 186-4, but comments on other areas of the FIPS will also be considered. The responses to this solicitation will be used to plan possible improvements to the FIPS, including the set of algorithms and elliptic curves specified in the FIPS.

    1. Digital Signature Schemes

    a. Do the digital signature schemes and key sizes specified in FIPS 186-4 satisfy the security requirements of applications used by industry?

    b. Are there other digital signature schemes that should be considered for inclusion in a future revision to FIPS 186? What are the advantages of these schemes over the existing schemes in FIPS 186?

    2. Security of Elliptic Curves

    a. Do the NIST-recommended curves satisfy the security requirements of applications used by industry?

    b. Are there any attacks of cryptographic significance on Elliptic Curve Cryptography that apply to the NIST-recommended curves or other widely used curves?

    3. Elliptic Curve Specifications and Criteria

    a. Is there a need for new elliptic curves to be considered for standardization?

    b. If there is a need, what criteria should NIST use to evaluate any curves to be considered for inclusion?

    c. Do you anticipate a need to create, standardize or approve new elliptic curves on an ongoing basis?

    4. Adoption

    a. Which of the approved digital signature schemes and NIST-recommended curves have been used in practice?

    b. Which elliptic curves are accepted for use in international markets?

    5. Interoperability

    a. If new curves were to be standardized, what would be the impact of changing existing implementations to allow for the new curves?

    b. What is the impact of having several standardized curves on interoperability?

    c. What are the advantages or disadvantages of allowing users or applications to generate their own elliptic curves, instead of using standardized curves?

    6. Performance

    a. Do the performance characteristics of existing implementations of the digital signatures schemes approved in FIPS 186-4 meet the requirements of applications used by industry?

    7. Intellectual Property

    a. What are the desired intellectual property requirements for any new curves or schemes that could potentially be included in the Standard?

    b. What impact has intellectual property concerns had on the adoption of elliptic curve cryptography?

    Authority:

    In accordance with the Information Technology Management Reform Act of 1996 (Pub. L. 104-106) and the Federal Information Security Management Act of 2002 (FISMA) (Pub. L. 107-347), the Secretary of Commerce is authorized to approve FIPS. NIST activities to develop computer security standards to protect federal sensitive (unclassified) information systems are undertaken pursuant to specific responsibilities assigned to NIST by Section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3), as amended.

    Richard Cavanagh, Acting Associate Director for Laboratory Programs.
    [FR Doc. 2015-26539 Filed 10-19-15; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Cost-Earnings Survey of American Samoa Longline Fishery.

    OMB Control Number: 0648-xxxx.

    Form Number(s): None.

    Type of Request: Regular (request for a new information collection).

    Number of Respondents: 20.

    Average Hours per Response: 30 minutes.

    Burden Hours: 10.

    Needs and Uses: This request is for a new information collection.

    The National Marine Fisheries Service (NMFS) proposes to collect information about annual base fishing expenses in the American Samoa longline fishery with which to conduct economic analyses that will improve fishery management in those fisheries; satisfy NMFS' legal mandates under Executive Order 12866, the Magnuson-Steven Fishery Conservation and Management Act (U.S.C. 1801 et seq.), the Regulatory Flexibility Act, the Endangered Species Act, and the National Environmental Policy Act; and quantify achievement of the performances measures in the NMFS Strategic Operating Plans. Respondents will include longline fishers in American Samoa and their participation in the economic data collection will be voluntary.

    Affected Public: Business or other for-profit organizations.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: October 14, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-26508 Filed 10-19-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Fishery Products Subject to Trade Restrictions Pursuant to Certification Under the High Seas Driftnet Fishing Moratorium Protection Act.

    OMB Control Number: 0648-0651.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 60.

    Average Hours per Response: 10 minutes.

    Burden Hours: 100.

    Needs and Uses: This request is for extension of a currently approved information collection.

    Pursuant to the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act), if certain fish or fish products of a nation are subject to import prohibitions to facilitate enforcement, the National Marine Fisheries Service (NMFS) requires that other fish or fish products from that nation that are not subject to the import prohibitions must be accompanied by documentation of admissibility. A duly authorized official/agent of the applicant's Government must certify that the fish in the shipments being imported into the United States (U.S.) are of a species that are not subject to an import restriction of the U.S. If a nation is identified under the Moratorium Protection Act and fails to receive a certification decision from the Secretary of Commerce, products from that nation that are not subject to the import prohibitions must be accompanied by the documentation of admissibility.

    Affected Public: Business or other for-profit organizations.

    Frequency: On occasion.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: October 14, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-26566 Filed 10-19-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration Membership of the National Telecommunications and Information Administration's Performance Review Board AGENCY:

    National Telecommunications and Information Administration, Department of Commerce.

    ACTION:

    Notice of Membership on the National Telecommunications and Information Administration's Performance Review Board.

    SUMMARY:

    In accordance with 5 U.S.C. § 4314(c)(4), the National Telecommunications and Information Administration (NTIA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of NTIA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    DATES:

    The period of appointment for those individuals selected for NTIA's Performance Review Board begins on October 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ruthie B. Stewart, Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-3130.

    SUPPLEMENTARY INFORMATION:

    In accordance with 5 U.S.C. § 4314(c)(4), the National Telecommunications and Information Administration (NTIA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of NTIA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

    Dates: The period of appointment for those individuals selected for NTIA's Performance Review Board begins on October 20, 2015. The name, position title, and type of appointment of each member of NTIA's Performance Review Board are set forth below by organization:

    Department of Commerce, National Telecommunications and Information Administration (NTIA) Paige R. Atkins, Associate Administrator for Spectrum Management, Career SES (New Member) Leonard M. Bechtel, Chief Financial Officer and Director of Administration, Career SES, Chairperson Evelyn Remaley-Hasch, Deputy Associate Administrator for Policy Analysis and Development, Career SES, Advisor (New Member) Department of Commerce, National Telecommunications and Information Administration, First Responder Network Authority (NTIA/FirstNet) Frank Freeman, Chief Administrative Officer, FirstNet, Career SES Jim Gwinn, Chief Information Officer, FirstNet, Career SES (New Member) Department of Commerce, Office of the Secretary, Office of the Chief Financial Officer and Assistant Secretary for Administration, Office of the Deputy Chief Financial Officer for Financial Management (OS/CFO/ASA/OFM) Gordon T. Alston, Director, Financial Reporting and Internal Controls, Career SES (New Member) Department of Commerce, Office of the Secretary (OS) Theodore C.Z. Johnston, Director, Office of Business Liaison, Non-Career SES, Political Advisor Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.
    [FR Doc. 2015-26575 Filed 10-19-15; 8:45 am] BILLING CODE 3510-25-P
    DEPARTMENT OF COMMERCE Patent and Trademark Office [Docket No. PTO-T-2015-0066] Trademark Public Advisory Committee Public Hearing on the Proposed Trademark Fee Schedule AGENCY:

    United States Patent and Trademark Office, Commerce.

    ACTION:

    Notice of Public Hearing.

    SUMMARY:

    Under Section 10 of the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO) may set or adjust by rule any patent or trademark fee established, authorized, or charged under Title 35 of the United States Code or the Trademark Act of 1946, respectively. The USPTO currently is planning to set or adjust trademark fees pursuant to its Section 10 fee setting authority. As part of the rulemaking process to set or adjust trademark fees, the Trademark Public Advisory Committee (TPAC) is required under Section 10 of the AIA to hold a public hearing about any proposed trademark fees, and the USPTO is required to assist TPAC in carrying out that hearing. To that end, the USPTO will make its proposed trademark fees available as set forth in the Supplementary Information section of this Notice before any TPAC hearing and will help the TPAC to notify the public about the hearing. Accordingly, this document announces the dates and logistics for the TPAC public hearing regarding USPTO proposed trademark fees. Interested members of the public are invited to testify at the hearing and/or submit written comments about the proposed trademark fees and the questions posed on the USPTO TPAC Web site page about the proposed fees.

    DATES:

    Public hearing: November 3, 2015.

    Comments: For those wishing to submit written comments on the fee proposal that will be published by October 27, 2015, but not requesting an opportunity to testify at the public hearing, the deadline for receipt of those written comments is November 10, 2015.

    Oral testimony: Those wishing to present oral testimony at the hearing must request an opportunity to do so in writing no later than October 27, 2015.

    Pre-scheduled speakers: Pre-scheduled speakers providing testimony at the hearing should submit a written copy of their testimony for inclusion in the record of the proceedings no later than November 10, 2015.

    ADDRESSES:

    Public hearing: The TPAC will hold a public hearing on November 3, 2015 beginning at 1:30 p.m., Eastern Standard Time (EST), and ending at 3:00 p.m., EST, at the USPTO, Madison Auditorium South, Concourse Level, Madison Building, 600 Dulany Street, Alexandria, Virginia 22314.

    Email: Written comments should be sent by email addressed to [email protected]

    Postal mail: Comments may also be submitted by postal mail addressed to: United States Patent and Trademark Office, Mail Stop CFO, P.O. Box 1450, Alexandria, VA 22313-1450, ATTN: Brendan Hourigan. Although comments may be submitted by postal mail, the USPTO prefers to receive comments via email. Written comments should be identified in the subject line of the email or postal mailing as “Fee Setting.” Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or telephone number should not be included in the comments.

    Web cast: The public hearing will be available via Web cast. Information about the Web cast will be posted on the USPTO's Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting) before the public hearing.

    Transcripts: Transcript of the hearing will be available on the USPTO Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting) shortly after the hearing.

    FOR FURTHER INFORMATION CONTACT:

    Brendan Hourigan, Office of the Chief Financial Officer, by phone (571) 272-8966, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Requests to testify should indicate the following: (1) The name of the person wishing to testify; (2) the person's contact information (telephone number and email address); (3) the organization(s) the person represents, if any; and (4) an indication of the amount of time needed for the testimony. Requests to testify must be submitted by email to Pamela Lloyd at [email protected] Based upon the requests received, an agenda for witness testimony will be sent to testifying requesters and posted on the USPTO Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting). If time permits, the TPAC may permit unscheduled testimony as well.

    Effective September 16, 2011, with the passage of the AIA, the USPTO is authorized under Section 10 of the AIA to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the United States Code and the Trademark Act of 1946, respectively. Patent and trademark fees set or adjusted by rule under Section 10 of the AIA may only recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, respectively, including administrative costs of the Office with respect to each as the case may be.

    Congress set forth the process for the USPTO to follow in setting or adjusting patent and trademark fees by rule under Section 10 of the AIA. Congress requires the relevant advisory committee to hold a public hearing about the USPTO fee proposals after receiving them from the agency. Congress likewise requires the relevant advisory committee to prepare a written report on the proposed fees and the USPTO to consider the relevant advisory committee's report before finally setting or adjusting the fees. Further, Congress requires the USPTO to publish its proposed fees and supporting rationale in the Federal Register and give the public not less than 45 days in which to submit comments on the proposed change in fees. Finally, Congress requires the USPTO to publish its final rule setting or adjusting fees also in the Federal Register.

    Presently, the USPTO is planning to exercise its fee setting authority to set or adjust trademark fees. The USPTO will publish a proposed trademark fee schedule and related supplementary information for public viewing no later than October 27, 2015, on the USPTO Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting). In turn, the TPAC will hold a public hearing about the proposed trademark fee schedule on the date indicated herein. The USPTO will assist the TPAC in holding the hearing by providing resources to organize the hearing and by notifying the public about the hearing, such as through this notice. To gather information from the public about the USPTO's proposed trademark fees, the TPAC will post specific questions for the public's consideration on the TPAC's Internet Web site (address: www.uspto.gov/about/advisory/tpac) after the USPTO publishes its proposed trademark fee schedule. The public may wish to address those questions in its hearing testimony and/or in written comments submitted to TPAC as described herein.

    Following the TPAC public hearing, the USPTO will publish a Notice of Proposed Rulemaking in the Federal Register, setting forth its proposed trademark fees. The publication of that Notice will open a comment window through which the public may provide written comments directly to the USPTO. Additional information about public comment to the USPTO will be provided in the USPTO's Notice of Proposed Rulemaking.

    Dated: October 14, 2015. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
    [FR Doc. 2015-26572 Filed 10-19-15; 8:45 am] BILLING CODE 3510-16-P
    DEPARTMENT OF COMMERCE Patent and Office [Docket No. PTO-P-2015-0065] Patent Public Advisory Committee Public Hearing on the Proposed Patent Fee Schedule AGENCY:

    United States Patent and Trademark Office, Department of Commerce.

    ACTION:

    Notice of Public Hearing.

    SUMMARY:

    Under Section 10 of the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO) may set or adjust by rule any patent or trademark fee established, authorized, or charged under Title 35 of the United States Code or the Trademark Act of 1946, respectively. The USPTO currently is planning to set or adjust patent fees pursuant to its Section 10 fee setting authority. As part of the rulemaking process to set or adjust patent fees, the Patent Public Advisory Committee (PPAC) is required under Section 10 of the AIA to hold a public hearing about any proposed patent fees, and the USPTO is required to assist PPAC in carrying out that hearing. To that end, the USPTO will make its proposed patent fees available as set forth in the Supplementary Information section of this Notice before any PPAC hearing and will help the PPAC to notify the public about the hearing. Accordingly, this document announces the dates and logistics for the PPAC public hearing regarding USPTO proposed patent fees. Interested members of the public are invited to testify at the hearing and/or submit written comments about the proposed patent fees and the questions posed on PPAC's Web site about the proposed fees.

    DATES:

    Public hearing: November 19, 2015.

    Comments: For those wishing to submit written comments on the fee proposal that will be published by November 12, 2015, but not requesting an opportunity to testify at the public hearing, the deadline for receipt of those written comments is November 25, 2015.

    Oral testimony: Those wishing to present oral testimony at the hearing must request an opportunity to do so in writing no later than November 12, 2015.

    Pre-scheduled speakers: Pre-scheduled speakers providing testimony at the hearing should submit a written copy of their testimony for inclusion in the record of the proceedings no later than November 25, 2015.

    ADDRESSES:

    Public hearing: The PPAC will hold a public hearing on November 19, 2015 beginning at 2:00 p.m., Eastern Standard Time (EST), and ending at 4:00 p.m., EST, at the USPTO, Madison Auditorium South, Concourse Level, Madison Building, 600 Dulany Street, Alexandria, Virginia 22314.

    Email: Written comments should be sent by email addressed to [email protected]

    Postal mail: Comments may also be submitted by postal mail addressed to: United States Patent and Trademark Office, Mail Stop CFO, P.O. Box 1450, Alexandria, VA 22313-1450, ATTN: Brendan Hourigan. Although comments may be submitted by postal mail, the USPTO prefers to receive comments via email. Written comments should be identified in the subject line of the email or postal mailing as “Fee Setting.” Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or telephone number, should not be included in the comments.

    Web cast: The public hearing will be available via Web cast. Information about the Web cast will be posted on the USPTO's Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting) before the public hearing.

    Transcripts: Transcript of the hearing will be available on the USPTO Internet Web site (www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting) shortly after the hearing.

    FOR FURTHER INFORMATION CONTACT:

    Brendan Hourigan, Office of the Chief Financial Officer, by phone (571) 272-8966, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Requests to testify should indicate the following: (1) The name of the person wishing to testify; (2) the person's contact information (telephone number and email address); (3) the organization(s) the person represents, if any; and (4) an indication of the amount of time needed for the testimony. Requests to testify must be submitted by email to Jennifer Lo at [email protected] Based upon the requests received, an agenda for witness testimony will be sent to testifying requesters and posted on the USPTO Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting). If time permits, the PPAC may permit unscheduled testimony as well.

    Effective September 16, 2011, with the passage of the AIA, the USPTO is authorized under Section 10 of the AIA to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the United States Code and the Trademark Act of 1946, respectively. Patent and trademark fees set or adjusted by rule under Section 10 of the AIA may only recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, respectively, including administrative costs of the Office with respect to each as the case may be.

    Congress set forth the process for the USPTO to follow in setting or adjusting patent and trademark fees by rule under Section 10 of the AIA. Congress requires the relevant advisory committee to hold a public hearing about the USPTO fee proposals after receiving them from the agency. Congress likewise requires the relevant advisory committee to prepare a written report on the proposed fees and the USPTO to consider the relevant advisory committee's report before finally setting or adjusting the fees. Further, Congress requires the USPTO to publish its proposed fees and supporting rationale in the Federal Register and give the public not less than 45 days in which to submit comments on the proposed change in fees. Finally, Congress requires the USPTO to publish its final rule setting or adjusting fees also in the Federal Register.

    Presently, the USPTO is planning to exercise its fee setting authority to set or adjust patent fees. The USPTO will publish a proposed patent fee schedule and related supplementary information for public viewing no later than November 12, 2015, on the USPTO Internet Web site (address: www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting). In turn, the PPAC will hold a public hearing about the proposed patent fee schedule on the date indicated herein. The USPTO will assist the PPAC in holding the hearing by providing resources to organize the hearing and by notifying the public about the hearing, such as through this notice. To gather information from the public about the USPTO's proposed patent fees, the PPAC will post specific questions for the public's consideration on the PPAC's Internet Web site (address: http://www.uspto.gov/about/advisory/ppac) after the USPTO publishes its proposed patent fee schedule. The public may wish to address those questions in its hearing testimony and/or in written comments submitted to PPAC as described herein.

    Following the PPAC public hearing, the USPTO will publish a Notice of Proposed Rulemaking in the Federal Register, setting forth its proposed patent fees. The publication of that Notice will open a comment window through which the public may provide written comments directly to the USPTO. Additional information about public comment to the USPTO will be provided in the USPTO's Notice of Proposed Rulemaking.

    Dated: October 14, 2015. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
    [FR Doc. 2015-26574 Filed 10-19-15; 8:45 am] BILLING CODE 3510-16-P
    COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities Under OMB Review AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.

    DATES:

    Comments must be submitted on or before November 19, 2015.

    ADDRESSES:

    Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (“OIRA”) in OMB, within 30 days of the notice's publication, by email at [email protected] Please identify the comments by OMB Control No. 3038-0101. Please provide the Commission with a copy of all submitted comments at the address listed below. Please refer to OMB Reference No. 3038-0101, found on http://reginfo.gov. Comments may also be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Commodity Futures Trading Commission, 725 17th Street NW., Washington, DC 20503, and to the Commission through the Agency's Web site at http://comments.cftc.gov. Follow the instructions for submitting comments through the Web site.

    Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand Delivery/Courier at the same address.

    A copy of the supporting statements for the collection of information discussed above may be obtained by visiting http://reginfo.gov. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    Duane C. Andresen, Associate Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5492; email: [email protected]