Federal Register Vol. 80, No.208,

Federal Register Volume 80, Issue 208 (October 28, 2015)

Page Range65881-66412
FR Document

80_FR_208
Current View
Page and SubjectPDF
80 FR 66004 - Sunshine Act NoticePDF
80 FR 66058 - Product Change-Priority Mail Negotiated Service AgreementPDF
80 FR 66054 - Pacific Gas and Electric Company; Diablo Canyon Power Plant, Units 1 and 2, and Diablo Canyon Independent Spent Fuel Storage InstallationPDF
80 FR 66056 - Strata Energy, Inc.PDF
80 FR 66057 - Advisory Committee on Reactor Safeguards Meeting of the ACRS Subcommittee on Plant License Renewal; Notice of MeetingPDF
80 FR 66028 - Washington; Major Disaster and Related DeterminationsPDF
80 FR 66031 - Agency Information Collection Activities: Proposed Collection; Comment Request; Individual & Community Preparedness Division (ICPD) Annual Youth Preparedness Council (YPC) Application FormPDF
80 FR 66027 - Proposed Flood Hazard DeterminationsPDF
80 FR 65980 - Extension of Public Comment Period for the Revision of Certain Federal Water Quality Criteria Applicable to WashingtonPDF
80 FR 66019 - Changes in Flood Hazard DeterminationsPDF
80 FR 66000 - Agency Information Collection Activities; Proposed Renewal of the Collection under OMB Control No. 2070-0030, EPA ICR No. 0795.15; Comment RequestPDF
80 FR 65968 - Final Flood Elevation DeterminationsPDF
80 FR 65999 - Board of Scientific Counselors Safe and Sustainable Water Resources Subcommittee; Notification of Public Teleconference Meeting and Public CommentPDF
80 FR 66028 - South Carolina; Amendment No. 6 to Notice of a Major Disaster DeclarationPDF
80 FR 65999 - Agency Information Collection Activities; Proposed Collection; Comment Request; General Hazardous Waste Facility Standards.PDF
80 FR 66122 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Specific Release FormPDF
80 FR 65964 - Methoxyfenozide; Pesticide TolerancesPDF
80 FR 65984 - Application(s) for Duty-Free Entry of Scientific InstrumentsPDF
80 FR 65985 - Certain Pasta From Italy: Notice of Final Results of Antidumping Duty Changed Circumstances ReviewPDF
80 FR 66104 - DeterminationPDF
80 FR 66004 - Notice of Agreements FiledPDF
80 FR 66015 - Prospective Grant of Exclusive License: Development of Therapeutics To Treat Obesity, Type 2 Diabetes, Fatty Liver Disease, and Liver Fibrosis in HumansPDF
80 FR 66042 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 66045 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 65987 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; 2016-2017 Federal Student Aid ApplicationPDF
80 FR 65983 - Council for Native American Farming and Ranching MeetingPDF
80 FR 65972 - Hardwood Lumber and Hardwood Plywood Promotion, Research and Information Order; Termination of Rulemaking ProceedingPDF
80 FR 66005 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; ExtensionPDF
80 FR 66048 - Announcement of Chronicling America: Historic American NewspapersPDF
80 FR 66040 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
80 FR 66105 - Grant Guideline, NoticePDF
80 FR 65931 - Amendments to Existing Validated End-User Authorizations in the People's Republic of ChinaPDF
80 FR 66016 - Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs DutiesPDF
80 FR 65980 - World Trade Center Health Program; Petition 009-Autoimmune Diseases; Finding of Insufficient EvidencePDF
80 FR 66124 - Solicitation of Nominations for Appointment to the Advisory Committee on Cemeteries and Memorials.PDF
80 FR 66006 - Information Collection; Payment to Small Business SubcontractorsPDF
80 FR 66007 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 65987 - Marine Fisheries Advisory CommitteePDF
80 FR 65971 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management AreaPDF
80 FR 66039 - Certain Consumer Electronics and Display Devices With Graphics Processing and Graphics Processing Units Therein; Notice of Request for Statements on the Public InterestPDF
80 FR 66014 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 65983 - Privacy Act of 1974, Altered System of RecordsPDF
80 FR 65987 - National Estuarine Research Reserve SystemPDF
80 FR 66105 - SJI Board of Directors Meeting, NoticePDF
80 FR 66122 - Trustees of the Cincinnati Southern Railway Company-Abandonment Exemption, Scott County, TNPDF
80 FR 65970 - Snapper-Grouper Fishery of the South Atlantic; 2015 Commercial Accountability Measure and Closure for South Atlantic Yellowtail SnapperPDF
80 FR 66009 - Agency Information Collection Activities; Proposed Collection; Comment Request; Investigational Device Exemptions Reports and RecordsPDF
80 FR 66015 - National Offshore Safety Advisory CommitteePDF
80 FR 66013 - Nonclinical Safety Evaluation of Reformulated Drug Products and Products Intended for Administration by an Alternate Route; Guidance for Industry and Review Staff; AvailabilityPDF
80 FR 65990 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; High School Longitudinal Study of 2009 (HSLS:09) Second Follow-up Main Study and 2018 Panel MaintenancePDF
80 FR 66008 - Proposed Information Collection Activity; Comment RequestPDF
80 FR 66024 - Final Flood Hazard DeterminationsPDF
80 FR 66022 - Proposed Flood Hazard DeterminationsPDF
80 FR 66029 - Changes in Flood Hazard DeterminationsPDF
80 FR 66029 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; Federal Assistance for Offsite Radiological Emergency Preparedness and PlanningPDF
80 FR 66018 - Changes in Flood Hazard DeterminationsPDF
80 FR 65991 - Heber Geothermal Company LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 65990 - Combined Notice of Filings #2PDF
80 FR 65994 - Combined Notice of Filings #1PDF
80 FR 65993 - Empire State Hydro 302, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
80 FR 65995 - Milltown Hydroelectric, LLC, Green Power USA, LLC; Notice of Transfer of ExemptionPDF
80 FR 65992 - Lee R. and A. Leon Thayn; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and ProtestsPDF
80 FR 65995 - Boott Hydropower, Inc.; Eldred L. Field Hydro Facility Trust; Notice of Application for Partial Transfer of License and Soliciting Comments, Motions to Intervene, and ProtestsPDF
80 FR 65992 - Bayou Bridge Pipeline, LLC; Notice of Petition for Declaratory OrderPDF
80 FR 65995 - Notice of Commissioner and Staff Attendance at North American Electric Reliability Corporation MeetingsPDF
80 FR 65994 - National Fuel Gas Supply Corporation; Notice of Request Under Blanket AuthorizationPDF
80 FR 65991 - Texas Gas Transmission, LLC; Notice of Request Under Blanket AuthorizationPDF
80 FR 65998 - Texas Eastern Transmission, LP; Notice of ApplicationPDF
80 FR 65996 - Northern Natural Gas Company; Notice of Intent to Prepare an Environmental Assessment for the Proposed Gaines County Crossover Compressor Station and Request for Comments on Environmental IssuesPDF
80 FR 66099 - Joint Industry Plan; Order Approving the Ninth Amendment to the National Market System Plan to Address Extraordinary Market Volatility by BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The Nasdaq Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc.PDF
80 FR 65934 - Historical Research in the Files of the Office of the Secretary of Defense (OSD)PDF
80 FR 66050 - Amendment of Statement of Organization and Functions; Restructuring of National Labor Relations Board's Field OrganizationPDF
80 FR 66001 - Information Collections Being Reviewed by the Federal Communications CommissionPDF
80 FR 66041 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a currently approved collection: Office of Justice Programs Solicitation TemplatePDF
80 FR 65973 - List of Rules To Be Reviewed Pursuant to the Regulatory Flexibility ActPDF
80 FR 66038 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
80 FR 65881 - Federal Employees Health Benefits Program: Enrollment Options Following the Termination of a Plan or Plan OptionPDF
80 FR 66036 - Notice of Availability of the Jordan Cove Energy and Pacific Connector Gas Pipeline Projects Final Environmental Impact Statement and the Proposed Associated Land Management Plan Amendments, OregonPDF
80 FR 66033 - Final Supplementary Rules for the Castle Rocks Land Use Plan Amendment Area, IdahoPDF
80 FR 66074 - Good Hill Partners LP and Good Hill ETF Trust; Notice of ApplicationPDF
80 FR 66342 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Establish Fees for Funding PortalsPDF
80 FR 66348 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Adopt the Funding Portal Rules and Related Forms and FINRA Rule 4518PDF
80 FR 66006 - The President's Management Advisory Board (PMAB); Notification of Upcoming Public Advisory MeetingPDF
80 FR 65979 - Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework RegulationsPDF
80 FR 66011 - Product Development Under the Animal Rule; Guidance for Industry; AvailabilityPDF
80 FR 65883 - Walnuts Grown in California; Increased Assessment RatePDF
80 FR 66100 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Extend the Pilot Period Applicable to Rule 521 and Rule 530 Relating To Limit Up/Limit DownPDF
80 FR 66072 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Revisions to the Registered Options Principal ExaminationPDF
80 FR 66097 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Rule 21.17, Exchange Sharing of User Designated Risk SettingsPDF
80 FR 66087 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Interpretive Material 1 to Rule 7170 To Extend the Pilot Program That Suspends Certain Obvious Error Provisions During Limit Up-Limit Down States in Securities That Underlie Options Traded on the ExchangePDF
80 FR 66063 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Limit Up-Limit Down Obvious Error PilotPDF
80 FR 66069 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 20.6, Nullification and Adjustment of Options Transactions Including Obvious ErrorsPDF
80 FR 66094 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 20.6, Nullification and Adjustment of Options Transactions Including Obvious ErrorsPDF
80 FR 66065 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Establishing Rules To Comply With the Requirements of the Plan To Implement a Tick Size Pilot Plan Submitted to the Commission Pursuant to Rule 608 of Regulation NMS Under the ActPDF
80 FR 66083 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Extend the Limit Up-Limit Down Obvious Error PilotPDF
80 FR 66058 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the Obvious Error Pilot ProgramPDF
80 FR 66092 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the Obvious Error Pilot ProgramPDF
80 FR 66060 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the Obvious Error Pilot ProgramPDF
80 FR 66085 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the AdvisorShares WCM/BNY Mellon Focused Growth ADR ETF's HoldingsPDF
80 FR 66102 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Exchange Rule 6.25PDF
80 FR 66089 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Exchange Rule 6.15PDF
80 FR 65886 - Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment RatePDF
80 FR 66048 - Nixon Presidential Historical Materials: Opening of MaterialsPDF
80 FR 66003 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
80 FR 66123 - Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board Notice of Meetings-December 2015 and January 2016PDF
80 FR 66040 - Certain Lip Balm Products, Containers for Lip Balm, and Components Thereof; Commission Decision not To Review an Initial Determination Granting a Motion To Terminate the Investigation; Investigation Terminated in Its EntiretyPDF
80 FR 65919 - Temporary Liquidity Guarantee Program; Unlimited Deposit Insurance Coverage for Noninterest-Bearing Transaction AccountsPDF
80 FR 65903 - Removal of Transferred OTS Regulations Regarding Safety and Soundness Guidelines and Compliance Procedures; Rules on Safety and SoundnessPDF
80 FR 65913 - Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments; Amendment to the “Creditor” Definition in Identity Theft Red Flags Rule; Removal of FDIC Regulations Regarding Fair Credit Reporting Transferred to the Consumer Financial Protection BureauPDF
80 FR 65889 - Filing Requirements and Processing Procedures for Changes in Control With Respect to State Nonmember Banks and State Savings AssociationsPDF
80 FR 65978 - Grocery Manufacturers Association; Filing of Food Additive PetitionPDF
80 FR 66032 - Golden Eagles; Programmatic Take Permit Application; Draft Environmental Assessment; Alta East Wind Project, Kern County, CaliforniaPDF
80 FR 65944 - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control TechnologiesPDF
80 FR 65927 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 66372 - Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Recommended Decision and Opportunity To File Written Exceptions To Proposed Marketing Agreement and Order No. 986PDF
80 FR 65921 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 66128 - Home Mortgage Disclosure (Regulation C)PDF
80 FR 65925 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF

Issue

80 208 Wednesday, October 28, 2015 Contents Agricultural Marketing Agricultural Marketing Service RULES Decreased Assessment Rate: Domestic Dates Produced or Packed in Riverside County, California, 65886-65889 2015-27340 Increased Assessment Rate: Walnuts Grown in California, 65883-65886 2015-27359 PROPOSED RULES Marketing Agreements and Orders: Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, 66372-66412 2015-27098 Promotion, Research and Information Orders: Hardwood Lumber and Hardwood Plywood; Termination of Rulemaking Proceeding, 65972-65973 2015-27448 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

NOTICES Meetings: Council for Native American Farming and Ranching, 65983 2015-27450
Consumer Financial Protection Bureau of Consumer Financial Protection RULES Home Mortgage Disclosure (Regulation C), 66128-66340 2015-26607 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66007-66008 2015-27431 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66008-66009 2015-27416 Coast Guard Coast Guard NOTICES Meetings: National Offshore Safety Advisory Committee, 66015-66016 2015-27419 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Privacy Act; Altered System of Records, 65983-65984 2015-27426
Copyright Office Copyright Office, Library of Congress RULES Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies; Exemptions, 65944-65964 2015-27212 Defense Department Defense Department RULES Historical Research in the Files of the Office of the Secretary of Defense, 65934-65944 2015-27393 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payment to Small Business Subcontractors; Withdrawal, 66006-66007 2015-27432 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2016-2017 Federal Student Aid Application, 65987-65989 2015-27451 High School Longitudinal Study of 2009 Second Follow-up Main Study and 2018 Panel Maintenance, 65990 2015-27417 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance Eligibility; Investigations, 66042-66045 2015-27453 Worker Adjustment Assistance; Determinations, 66045-66048 2015-27452 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Methoxyfenozide, 65964-65968 2015-27461 PROPOSED RULES Amendments to Framework Regulations: Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules, 65979-65980 2015-27367 Revision of Certain Federal Water Quality Criteria Applicable to Washington, 65980 2015-27474 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66000-66001 2015-27470 Agency Information Collection Activities; Proposals, Submissions, and Approvals: General Hazardous Waste Facility Standards, 65999 2015-27465 Meetings: Board of Scientific Counselors Safe and Sustainable Water Resources Subcommittee, 65999-66000 2015-27468 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Rolls-Royce plc Turbofan Engines, 65925-65927 2015-21729 The Boeing Company Airplanes, 65921-65925, 65927-65931 2015-26993 2015-27190 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66122 2015-27462 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66001-66004 2015-27338 2015-27391 Federal Deposit Federal Deposit Insurance Corporation RULES Filing Requirements and Processing Procedures for Changes in Control With Respect to State Nonmember Banks and State Savings Associations, 65889-65903 2015-27289 Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments; etc., 65913-65919 2015-27291 Removal of Transferred OTS Regulations Regarding Safety and Soundness Guidelines and Compliance Procedures; Rules on Safety and Soundness, 65903-65913 2015-27293 Temporary Liquidity Guarantee Program: Unlimited Deposit Insurance Coverage for Noninterest-bearing Transaction Accounts, 65919-65921 2015-27294 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 66004 2015-27618 Federal Emergency Federal Emergency Management Agency RULES Flood Elevation Determinations, 65968-65970 2015-27469 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Assistance for Offsite Radiological Emergency Preparedness and Planning, 66029 2015-27412 Individual and Community Preparedness Division Annual Youth Preparedness Council Application Form, 66031-66032 2015-27476 Changes in Flood Hazard Determinations, 66018-66019, 66029-66031 2015-27411 2015-27413 Disaster Declarations: South Carolina; Amendment No. 6, 66028-66029 2015-27466 Flood Hazard Determinations, 66019-66022, 66024-66027 2015-27415 2015-27472 Flood Hazard Determinations; Corrections, 66027-66028 2015-27475 Major Disaster and Related Determinations: Washington, 66028 2015-27477 Proposed Flood Hazard Determinations, 66022-66024 2015-27414 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Lee R. and A. Leon Thayn, 65992-65993 2015-27405 Texas Eastern Transmission, LP, 65998 2015-27399 Combined Filings, 65990-65991, 65994-65995 2015-27408 2015-27409 Environmental Assessments; Availability, etc.: Northern Natural Gas Co., Proposed Gaines County Crossover Compressor Station, 65996-65997 2015-27398 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Heber Geothermal Company LLC, 65991 2015-27410 License Applications: Boott Hydropower, Inc., Eldred L. Field Hydro Facility Trust, 65995-65996 2015-27404 Petitions for Declaratory Orders: Bayou Bridge Pipeline, LLC, 65992 2015-27403 Preliminary Permit Applications: Empire State Hydro 302, LLC, 65993 2015-27407 Requests under Blanket Authorizations: National Fuel Gas Supply Corp., 65994 2015-27401 Texas Gas Transmission, LLC, 65991-65992 2015-27400 Staff Attendances, 65995 2015-27402 Transfers of Exemptions: Milltown Hydroelectric, LLC; Green Power USA, LLC, 65995 2015-27406 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 66004 2015-27455 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66005-66006 2015-27446 Fish Fish and Wildlife Service NOTICES Environmental Assessments; Availability, etc.: Golden Eagles Programmatic Take Permit Application, Alta East Wind Project, Kern County, CA, 66032-66033 2015-27240 Food and Drug Food and Drug Administration PROPOSED RULES Filing of Food Additive Petitions: Grocery Manufacturers Association, 65978-65979 2015-27277 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Investigational Device Exemptions Reports and Records, 66009-66011 2015-27420 Guidance: Nonclinical Safety Evaluation of Reformulated Drug Products and Products Intended for Administration by an Alternate Route, 66013-66014 2015-27418 Product Development Under the Animal Rule, 66011-66013 2015-27361 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Jordan Cove Energy and Pacific Connector Gas Pipeline Projects; Oregon, 66036-66038 2015-27377 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payment to Small Business Subcontractors; Withdrawal, 66006-66007 2015-27432 Meetings: The President's Management Advisory Board, 66006 2015-27368 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

PROPOSED RULES Petitions for Additional Health Conditions; Denials: World Trade Center Health Program; Petition 009--Autoimmune Diseases; Finding of Insufficient Evidence, 65980-65982 2015-27435
Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Industry Industry and Security Bureau RULES Existing Validated End-User Authorizations in the People's Republic of China; Amendments, 65931-65934 2015-27442 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Pasta from Italy, 65985-65987 2015-27458 Applications for Duty-Free Entry of Scientific Instruments, 65984-65985 2015-27459 International Trade Com International Trade Commission NOTICES Complaints: Certain Woven Textile Fabrics and Products Containing Same, 66040-66041 2015-27444 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Consumer Electronics and Display Devices with Graphics Processing and Graphics Processing Units Therein, 66039-66040 2015-27428 Certain Lip Balm Products, Containers for Lip Balm, and Components Thereof, 66040 2015-27333 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of Justice Programs Solicitation Template, 66041-66042 2015-27389 Labor Department Labor Department See

Employment and Training Administration

Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Jordan Cove Energy and Pacific Connector Gas Pipeline Projects; Oregon, 66036-66038 2015-27377 Final Supplementary Rules for the Castle Rocks Land Use Plan Amendment Area: Idaho, 66033-66035 2015-27373 Library Library of Congress See

Copyright Office, Library of Congress

NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Payment to Small Business Subcontractors; Withdrawal, 66006-66007 2015-27432 National Archives National Archives and Records Administration NOTICES Opening of Nixon Presidential Historical Materials, 66048 2015-27339 National Foundation National Foundation on the Arts and the Humanities NOTICES Chronicling America: Historic American Newspapers Data Challenge; Announcement, 66048-66050 2015-27445 National Institute National Institutes of Health NOTICES Exclusive Licenses: Development of Therapeutics to Treat Obesity, Type 2 Diabetes, Fatty Liver Disease, and Liver Fibrosis in Humans, 66015 2015-27454 Meetings: Center for Scientific Review, 66014 2015-27427 National Labor National Labor Relations Board NOTICES Statement of Organization and Functions; Restructuring of Field Organization, 66050-66054 2015-27392 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area, 65971 2015-27429 Snapper-Grouper Fishery of the South Atlantic: 2015 Commercial Accountability Measure and Closure for South Atlantic Yellowtail Snapper, 65970-65971 2015-27421 NOTICES Approval of the Apalachicola, Florida National Estuarine Research Reserve Management Plan Revision, 65987 2015-27425 Meetings: Marine Fisheries Advisory Committee, 65987 2015-27430 National Park National Park Service NOTICES National Register of Historic Places: Notification of Pending Nominations and Related Actions, 66038-66039 2015-27384 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Assessments; Availability, etc.: Pacific Gas and Electric Company; Diablo Canyon Power Plant, Units 1 and 2, and Diablo Canyon Independent Spent Fuel Storage Installation, 66054-66056 2015-27484 Exemptions: Strata Energy, Inc., 66056-66057 2015-27483 Meetings: Advisory Committee on Reactor Safeguards, Subcommittee on Plant License Renewal, 66057-66058 2015-27482 Personnel Personnel Management Office RULES Federal Employees Health Benefits Program: Enrollment Options Following the Termination of a Plan or Plan Option, 65881-65883 2015-27378 Postal Service Postal Service NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 66058 2015-27501 Securities Securities and Exchange Commission PROPOSED RULES Rules to be Reviewed Pursuant to the Regulatory Flexibility Act, 65973-65978 2015-27385 NOTICES Applications: Good Hill Partners LP and Good Hill ETF Trust, 66074-66083 2015-27372 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 66069-66072 2015-27351 BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Inc., et al., 66099-66100 2015-27396 BOX Options Exchange, LLC, 66087-66089 2015-27353 C2 Options Exchange, Inc., 66089-66092 2015-27342 Chicago Board Options Exchange, Inc., 66072-66074, 66102-66104 2015-27343 2015-27355 EDGX Exchange, Inc., 66094-66099 2015-27350 2015-27354 Financial Industry Regulatory Authority, Inc., 66342-66370 2015-27370 2015-27371 International Securities Exchange, LLC, 66063-66065 2015-27352 ISE Gemini, LLC, 66083-66085 2015-27348 Miami International Securities Exchange, LLC, 66100-66102 2015-27356 NASDAQ OMX BX, Inc., 66058-66060 2015-27347 NASDAQ OMX PHLX, LLC, 66060-66063 2015-27345 NASDAQ Stock Market LLC, 66092-66094 2015-27346 New York Stock Exchange, LLC, 66065-66069 2015-27349 NYSE Arca, Inc., 66085-66087 2015-27344 State Department State Department NOTICES Resource Demand Surcharges, 66104-66105 2015-27456 State Justice State Justice Institute NOTICES Grant Guidelines, 66105-66122 2015-27443 Meetings: Board of Directors, 66105 2015-27424 Surface Transportation Surface Transportation Board NOTICES Abandonment Exemptions: Trustees of the Cincinnati Southern Railway Co., Scott County, TN, 66122-66123 2015-27422 Transportation Department Transportation Department See

Federal Aviation Administration

See

Surface Transportation Board

Customs U.S. Customs and Border Protection NOTICES Quarterly IRS Interest Rates Used: Calculating Interest on Overdue Accounts and Refunds on Customs Duties, 66016-66018 2015-27437 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board, 66123-66124 2015-27337 Requests for Nominations: Advisory Committee on Cemeteries and Memorials, 66124-66125 2015-27433 Separate Parts In This Issue Part II Bureau of Consumer Financial Protection, 66128-66340 2015-26607 Part III Securities and Exchange Commission, 66342-66370 2015-27370 2015-27371 Part IV Agriculture Department, Agricultural Marketing Service, 66372-66412 2015-27098 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.

80 208 Wednesday, October 28, 2015 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206-AN07 Federal Employees Health Benefits Program: Enrollment Options Following the Termination of a Plan or Plan Option AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The U.S. Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Employees Health Benefits (FEHB) Program regulations regarding enrollment options following the termination of a plan or plan option.

DATES:

This rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Chelsea Ruediger at [email protected] or (202) 606-0004.

SUPPLEMENTARY INFORMATION:

The U.S. Office of Personnel Management (OPM) issued a Notice of Proposed Rulemaking on January 7, 2015 to amend Title 5 of the Code of Federal Regulations Part 890 to update enrollment options following the termination of a plan or plan option in the Federal Employees Health Benefits (FEHB) Program. During the public comment period on the proposed rule, OPM received five comments including three from FEHB health plan carriers and two from citizens. These comments are summarized and addressed below.

One commenter asked if an annuitant who fails to make a health plan enrollment election following a plan or plan option termination and is involuntarily enrolled into the lowest cost nationwide plan will have an opportunity to change his or her enrollment before the next annual Open Season. The final rule provides belated enrollment opportunities for annuitants who, for reasons beyond their control, were unable to make an enrollment election during the allowed time following the termination of a plan or plan option.

One commenter requested information about a specific FEHB plan and whether or not it would leave the FEHB Program. The specific answer to that question is outside the scope of this final regulation. Each year in advance of the annual Open Season, OPM announces any plans and plan options that intend to leave the Program. If a plan or plan option leaves the Program mid-plan year, OPM will make a timely announcement. The carrier will also notify its enrollees.

One commenter asked for clarification concerning the enrollment type (self only, self plus one, or self and family) of automatic enrollments into the lowest-cost nationwide plan. Though it is not specifically addressed in this final regulation, OPM will follow current standard procedures for enrollments to be of the enrollment type that the enrollee carried before the plan or plan option terminated.

One commenter asked that the final rule include provisions to automatically enroll enrollees into the lowest-cost plan available with the same carrier. In the event that an entire plan is terminated from the FEHB Program, this is not possible. However, in the event of a plan option termination, the final rule does include provisions to automatically enroll enrollees into the lowest-cost remaining available option of their current plan that is not a High Deductible Health Plan (HDHP).

One carrier requested that OPM identify the lowest-cost nationwide plan available for each enrollment type: Self only, self plus one and self and family. Another requested that OPM consider identifying lowest-cost local plans as the default plans for automatic enrollments following a plan or plan option termination. This commenter asserted that local plans may be better equipped to provide access to care for enrollees living in their service area. OPM declines to adopt these suggestions. OPM's intent in this regulation is to ensure that all enrollees with terminating plans have adequate access to affordable health insurance coverage while maintaining a procedure that is reasonable to administer and communicate. Enrollees will have opportunities to change plans according to existing rules if they feel a better plan would meet their needs.

One commenter suggested that OPM clarify whether or not a plan that normally requires a membership or association fee would be considered as the lowest-cost nationwide plan if that plan agreed to waive the fee for any individuals who are automatically enrolled following a plan or plan option termination. OPM declines to make this change as no supporting comments were received for this suggestion.

One commenter suggested that OPM include an additional criterion for selecting the lowest-cost nationwide plan to address actual capability to assume the risk for an influx of new enrollees. Nationwide FEHB plans have adequate networks and system capabilities to accommodate enrollees in any region of the U.S.

One commenter asked that OPM define nationwide plan as “any plan that provides coverage in all fifty states for which any employee and annuitant is eligible” in the final rule. The final rule is not amended to adopt this definition. Health benefits plans with which OPM may contract are defined in 5 U.S.C. 8903.

One commenter requested that OPM hold any remaining contingency reserve funds in an account earmarked for the lowest-cost nationwide plan. The commenter suggested that if the account accrued to a certain amount, OPM could use the balance to reduce the administrative load. OPM declines to make this change. Currently, OPM does not have the legal authority to create an additional contingency reserve for the lowest-cost nationwide plan nor to use excess funds at the end of a year to reduce administrative costs. 890.503(c)(5) allows carriers to request special transfers from their contingency reserves for “unexpected claims experience and variations from expected community rates.”

One commenter suggested that OPM reserve the right to change the plan to be used for automatic enrollments following the termination of a plan or plan option in the event that the selected plan is unable to accommodate new enrollees. § 890.301(n) has been updated in the final rule to allow OPM, at its sole discretion, to designate an alternate plan for automatic enrollments.

In order to maintain consistency among program participants, OPM has updated § 890.306(l)(4)(iv) to clarify that annuitants who wish to change their enrollment following an involuntary enrollment due to a plan or plan option termination may do so prospectively, rather than retroactively, within 90-days after OPM advises the annuitant of the new enrollment.

Paperwork Reduction Act (PRA)

OPM has reviewed this proposed rule for PRA implications and have determined that it does not apply to this action.

Regulatory Impact Analysis

OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which directs 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). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. After completing this analysis, OPM has determined that this rule is not considered a major rule.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only impacts options available for FEHB enrollees when the plan or plan option in which they are enrolled terminates.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Federalism

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or tribal governments.

List of Subjects in 5 CFR Part 890

Administration and general provisions; Health benefits plans; Enrollment, Temporary extension of coverage and conversion; Contributions and withholdings; Transfers from retired FEHB Program; Benefits in medically underserved areas; Benefits for former spouses; Limit on inpatient hospital charges, physician charges, and FEHB benefit payments; Administrative sanctions imposed against health care providers; Temporary continuation of coverage; Benefits for United States hostages in Iraq and Kuwait and United States hostages captured in Lebanon; Department of Defense Federal Employees Health Benefits Program demonstration project; Administrative practice and procedure, Employee benefit plans, Government employees, Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

Accordingly, OPM is amending title 5, Code of Federal Regulations as follows:

PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 1. The authority citation for part 890 continues to read as follows: Authority:

5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.

2. Amend § 890.301 by revising paragraphs (i)(4)(ii) through (iv) and adding paragraphs (i)(4)(v) and (n) to read as follows:
§ 890.301 Opportunities for employees who are not participants in premium conversion to enroll or change enrollment; effective dates.

(i) * * *

(4) * * *

(ii) If the whole plan is discontinued, an employee who does not change the enrollment within the time set in (i)(4)(i) of this section will be enrolled in the lowest-cost nationwide plan option, as defined in paragraph (n) of this section;

(iii) If one or more options of a plan are discontinued, an employee who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP).

(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, an employee must change the enrollment within 60 days of the disaster, as announced by OPM. If an employee does not change the enrollment within the time frame announced by OPM, the employee will be enrolled in the lowest-cost nationwide plan option, as defined in paragraph (n) of this section. The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;

(v) An employee who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in paragraph (n) of this section, may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section;

(n) OPM will annually determine the lowest-cost nationwide plan option calculated based on the enrollee share of the cost of a self only enrollment. The plan option identified may not be a High Deductible Health Plan (HDHP) or an option from a health benefits plan that charges an association or membership fee. OPM reserves the right to designate an alternate plan for automatic enrollments if OPM determines circumstances dictate this.

3. Amend § 890.306 by revising paragraphs (l)(4)(ii) through (v) and adding paragraph (l)(4)(vi) to read as follows:
§ 890.306 When can annuitants or survivor annuitants change enrollment or reenroll and what are the effective dates?

(l) * * *

(4) * * *

(ii) If a plan discontinues all of its existing options, an annuitant who does not change his or her enrollment is deemed to have enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n); except when the annuity is insufficient to pay the withholdings, then paragraph (q) of this section applies.

(iii) If one or more options of a plan are discontinued, an annuitant who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP). In the event that the annuity is insufficient to pay the withholdings, then paragraph (q) of this section applies;

(iv) After an involuntary enrollment under paragraph (l)(4)(ii) or (iii) of this section becomes effective, the annuitant may change the enrollment to another option of the plan into which he or she was enrolled or another health plan of his or her choice prospectively within 90-days after OPM advises the annuitant of the new enrollment;

(v) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, an annuitant must change the enrollment within 60 days of the disaster, as announced by OPM. If an annuitant does not change the enrollment within the time frame announced by OPM, the annuitant will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n). The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;

(vi) An annuitant who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.

4. Amend § 890.806 by revising paragraphs (j)(4)(ii) through (iv) and adding paragraph (j)(4)(v) to read as follows:
§ 890.806 When can former spouses change enrollment or reenroll and what are the effective dates?

(j) * * *

(4) * * *

(ii) If the whole plan is discontinued, a former spouse who does not change the enrollment within the time set will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n);

(iii) If one or more options of a plan are discontinued, a former spouse who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP);

(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, the former spouse must change the enrollment within 60 days of the disaster, as announced by OPM. If a former spouse does not change the enrollment within the time frame announced by OPM, the former spouse will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n) of this section. The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;

(v) A former spouse who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.

5. Amend § 890.1108 by revising paragraphs (h)(4)(ii) through (iv) and adding paragraph (h)(4)(v) to read as follows:
§ 890.1108 Opportunities to change enrollment; effective dates.

(h) * * *

(4) * * *

(ii) If the whole plan is discontinued, an enrollee who does not change the enrollment within the time set will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n);

(iii) If one or more options of a plan are discontinued, an enrollee who does not change the enrollment will enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP);

(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, the enrollee must change the enrollment within 60 days of the disaster, as announced by OPM. If the enrollee does not change the enrollment within the time frame announced by OPM, the enrollee will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n). The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;

(v) An enrollee who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.

[FR Doc. 2015-27378 Filed 10-27-15; 8:45 am] BILLING CODE 6325-63-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 984 [Doc. No. AMS-FV-15-0026; FV15-984-1 FR] Walnuts Grown in California; Increased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule implements a recommendation from the California Walnut Board (Board) for an increase of the assessment rate established for the 2015-16 and subsequent marketing years from $0.0189 to $0.0379 per kernelweight pound of walnuts handled under the marketing order. The Board locally administers the marketing order and is comprised of growers and handlers of walnuts operating within the area of production. Assessments upon walnut handlers are used by the Board to fund reasonable and necessary expenses of the program. The marketing year begins September 1 and ends August 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective October 29, 2015.

FOR FURTHER INFORMATION CONTACT:

Terry Vawter, Senior Marketing Specialist, or Martin Engeler, Regional Manager, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Order No. 984, as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on September 1, 2015, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule increases the assessment rate established for the Board for the 2015-16 and subsequent marketing years from $0.0189 to $0.0379 per kernelweight pound of assessable walnuts handled.

The California walnut marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are growers and handlers of California walnuts. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2013-14 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0189 per kernelweight pound of assessable walnuts that would continue in effect from marketing year to marketing year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on June 4, 2015, and unanimously recommended 2015-16 expenditures of $22,668,980, and an assessment rate of $0.0379 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $9,861,810. The assessment rate of $0.0379 is $0.019 per pound higher than the rate currently in effect. The quantity of assessable walnuts for the 2015-16 marketing year is estimated at 518,000 tons inshell or 466,200,000 kernelweight pounds, which is the five-year average of walnut production. At the recommended higher assessment rate of $0.0379 per kernelweight pound, the Board should collect approximately $17,668,980 in assessment income. The Board also recommended using $5,000,000 from its monetary reserve to help fund the increase in the expenditures. Assessments and funds from the reserve will be adequate to cover its 2015-16 budgeted expenses of $22,668,980.

The Board noted that sales of California walnuts in the domestic market have been declining in recent years, and believes that more market development and promotion would reverse the trend. Thus, they are committed to increasing expenditures on domestic marketing promotion projects and programs.

The following table compares major budget expenditures recommended by the Board for the 2014-15 and 2015-16 marketing years:

Chart 1 Budget expense categories 2014-15 2015-16 Employee Expenses $ 1,711,000 $1,846,500 Travel/Board Expenses/Annual Audit 190,000 191,000 Office Expenses 241,000 254,000 Controlled Purchases 10,000 10,000 Crop Acreage Survey 0 100,000 Crop Estimate 126,000 130,000 Production Research Director 94,500 94,500 Production Research 1,600,000 1,700,000 Sustainability Project 75,000 75,000 Grades and Standards Research 600,000 600,000 Domestic Market Development 5,742,000 18,478,440 Reserve for Contingency 166,310 32,790

The assessment rate recommended by the Board was derived by dividing anticipated assessment revenue needed by estimated shipments of California walnuts certified as merchantable. The 518,000 ton (inshell) estimate for merchantable shipments is an average of shipments during five prior years. Pursuant to § 984.51(b) of the order, this figure is converted to a merchantable kernelweight basis using a factor of 0.45 (518,000 tons x 2,000 pounds per ton x 0.45), which yields 466,200,000 kernelweight pounds. At $0.0379 per pound, the new assessment rate should generate $17,668,980 in assessment income. Along with $5,000,000 from the Board's monetary reserve, this assessment rate will allow the Board to cover its expenses.

Section 984.69 of the order authorizes the Board to carry over excess funds into subsequent marketing years as a reserve, provided that funds already in the reserve do not exceed approximately two years' budgeted expenses. Using $5,000,000 of reserve funds would leave an estimated $5,895,932 in reserve at the end of the 2015-16 marketing year, well within the requirements of the marketing order.

The assessment rate will be in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information.

Although this assessment rate established by this rule will be in effect for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2015-16 budget and those for subsequent marketing years would be reviewed, and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 4,500 growers of California walnuts in the production area and approximately 90 handlers subject to regulation under the marketing order. The Small Business Administration (SBA) defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $7,000,000. (13 CFR 121.201)

According to USDA's National Agricultural Statistics Service's (NASS's) 2012 Census of Agriculture, approximately 89 percent of California's walnut farms were smaller than 100 acres. Further, NASS reports that the average yield for 2014 was 1.95 tons per acre, and the average price received for 2013 was $3,710 per ton. The average price for 2014 has not been reported yet.

A 100-acre farm with an average yield of 1.95 tons per acre would therefore have been expected to produce about 195 tons of walnuts during 2010-11. At $3,710 per ton, that farm's production would have had an approximate value of $723,450. Since Census of Agriculture information indicates that the majority of California's walnut farms are smaller than 100 acres, it could be concluded that the majority of the growers had receipts of less than $723,450 in 2014-15, below the SBA threshold of $750,000. Thus, the majority of California's walnut growers would be considered small growers according to SBA's definition.

According to information supplied by the Board, approximately two-thirds of California's walnut handlers each shipped merchantable walnuts valued under $7,000,000 during the 2014-15 marketing year and would, therefore, be considered small handlers according to the SBA definition.

This rule increases the assessment rate established by the Board and applicable to handlers for the 2015-16 and subsequent marketing years from $0.0189 to $0.0379 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2015-16 expenditures of $22,668,980 and an assessment rate of $0.0379 per kernelweight pound of assessable walnuts. The assessment rate of $0.0379 is $0.019 higher than the 2014-15 rate. The quantity of assessable walnuts for the 2015-16 marketing year is estimated at 518,000 tons inshell weight, or 466,200,000 kernelweight pounds. Thus, the $0.0379 rate should provide $17,668,980 in assessment income.

The Board also recommended using $5,000,000 from its monetary reserve to augment the assessment income. Thus, assessment income plus the $5,000,000 should be adequate to meet this year's expenses. The increased assessment rate is primarily due to increased domestic marketing promotion and programs. The Board has become concerned with the declining sales of California walnuts in the domestic market, and believes that sagging sales can be improved through increased promotional activities. Thus, they recommended an increase in domestic market development from approximately $5.7 million during the 2014-15 marketing year to approximately $18.4 million for the 2015-16 marketing year.

The major expenses for the 2015-16 marketing year, as outlined in Chart 1 include: $1,846,500 for employee expenses; $191,000 for travel, board, and annual audit expenses; $254,000 for office expenses; $10,000 for controlled purchases; $100,000 for the crop acreage survey; $130,000 for the crop estimate; $94,500 for the salary of the Production Research Director; $1,700,000 for production research; $75,000 for a sustainability project; $600,000 for grades and standards research; $18,478,440 for domestic market development projects; and $32,790 for the contingency reserve.

In comparison, these expenditures for the 2014-15 marketing year were: $1,711,000 for employee expenses; $190,000 for travel, board, and annual audit expenses; $241,000 for office expenses; $10,000 for controlled purchases; $126,000 for the crop estimate; $94,500 for the salary of the Production Research Director; $1,600,000 for production research; $75,000 for the sustainability project; $600,000 for grades and standards research; $5,742,000 for domestic market development projects; and $166,310 for the contingency reserve. There was no acreage survey expense in the 2014-15 marketing year.

The Board reviewed and unanimously recommended 2015-16 expenditures of $22,668,980. Prior to arriving at this budget, the Board considered alternative expenditure levels, such as spending an additional $5,000,000, or $10,000,000 for domestic market development projects, as well as alternate assessment rate levels. They ultimately determined that the recommended expenditure and assessment levels were reasonable and necessary to assist in improving domestic sales, as well as properly administering the order.

The assessment rate of $0.0379 per kernelweight pound of assessable walnuts was derived by dividing anticipated assessment revenue needed by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 466,200,000 pounds. It was determined that $17,668,980 in assessment income was needed, and assessment income combined with funds from the monetary reserve should allow the Board to cover its expenses of $22,668,980.

The Board also considered information from various committees who deliberate and formulate their own budgets of expenses and make recommendations to the Board. The committees include the Market Development, Production Research, Budget and Personnel, and Grades and Standards Committees.

Unspent funds may be retained in a financial reserve, provided that funds in the financial reserve do not exceed approximately two years' budgeted expenses.

According to NASS, the season average grower prices for the years 2012 and 2013 were $3,030 and $3,710 per ton, respectively. Prices have not yet been reported for 2014. The 2012 and 2013 prices provide a range within which the 2015-16 season average price could fall. Dividing these average grower prices by 2,000 pounds per ton provides an inshell price per pound range of $1.52 to $1.86. Dividing these inshell per pound prices by the 0.45 conversion factor (inshell to kernelweight) established in the order yields a 2015-16 price range estimate of $3.38 to $4.13 per kernelweight pound of assessable walnuts.

To calculate the percentage of grower revenue represented by the assessment rate, the assessment rate of $0.0379 per kernelweight pound is divided by the low and high estimates of the price range. The estimated assessment revenue for the 2015-16 marketing year as a percentage of total grower revenue will thus likely range between 0.92 and 1.11 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. These costs are offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the California walnut industry, and all interested persons were invited to attend the meeting and encouraged to participate in Board deliberations on all issues. Like all Board meetings, the June 4, 2015, meeting was a public meeting and all entities, both large and small, were free to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 (Walnuts Grown in California). No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This rule imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

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

A proposed rule concerning this action was published in the Federal Register on August 18, 2015, (80 FR 49930). Copies of the proposed rule were also provided to all walnut handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending September 17, 2015, was provided for interested persons to respond to the proposal. No complete comments were received. Accordingly, no changes will be made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrderSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because handlers are already receiving 2015-16 crop walnuts from growers, the marketing year began on September 1, 2015, and the assessment rate applies to all walnuts received during the 2015-16 and subsequent marketing years. Further, handlers are aware of this rule which was recommended at a public meeting. Also, a 30-day comment period was provided in the proposed rule.

List of Subjects in 7 CFR Part 984

Marketing agreements, Nuts, Reporting and recordkeeping requirements, Walnuts.

For the reasons set forth in the preamble, 7 CFR part 984 is amended as follows:

PART 984—WALNUTS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 984 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 984.347 is revised to read as follows:
§ 984.347 Assessment rate.

On and after September 1, 2015, an assessment rate of $0.0379 per kernelweight pound is established for California merchantable walnuts.

Dated: October 22, 2015. Rex A. Barnes, Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-27359 Filed 10-27-15; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 987 [Docket No. AMS-FV-15-0034; FV15-987-1 IR] Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule implements a recommendation from the California Date Administrative Committee (committee) for a decrease in the assessment rate established for the 2015-16 and subsequent crop years from $0.20 to $0.10 per hundredweight of dates handled. The committee locally administers the marketing order, which regulates the handling of dates grown or packed in Riverside County, California. Assessments upon date handlers are used by the committee to fund reasonable and necessary expenses of the program. The crop year begins October 1 and ends September 30. The new assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective October 29, 2015. Comments received by December 28, 2015, will be considered prior to issuance of a final rule.

ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the docket number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting comments will be made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT:

Terry Vawter, Senior Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 987, both as amended (7 CFR part 987), regulating the handling of dates produced or packed in Riverside County, California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Riverside County, California, date handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dates beginning October 1, 2015, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established by the committee for the 2015-16 and subsequent crop years from $0.20 to $0.10 per hundredweight of dates.

The California date marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are date producers and handlers from Riverside County, California. They are familiar with the committee's needs and the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

The committee met on June 25, 2015, and unanimously recommended 2015-16 expenditures of $59,250, and an assessment rate of $0.10 per hundredweight of Riverside County, California dates. In comparison, last year's budgeted expenditures were $56,200. The assessment rate of $0.10 is $0.10 lower than the rate currently in effect.

This year's crop is estimated to be slightly larger than last year's crop. Sufficient income is expected to be generated when applying the recommended lower assessment rate to the larger crop. When combined with carry-in funds from the 2014-15 crop year, funding should be sufficient to cover anticipated 2015-16 expenses. The financial reserve will also be maintained within the limit specified under the order.

The major expenditure recommended by the committee for the 2015-16 crop year is $59,250 for general and administrative expenses. In comparison, the major expenditures recommended by the committee for the 2014-15 crop year included $56,200 for general and administrative expenses, and $2,800 for contingency funds.

The assessment rate of $0.10 per hundredweight of dates handled was recommended by the committee after considering several factors: The anticipated size of the 2015-16 crop, the committee's estimates of the incoming reserve, other income, and anticipated expenses. Date shipments for the year are estimated at 29,000,000 pounds (290,000 hundredweight) which should provide $29,000 in assessment income. Income derived from handler assessments and funds from the committee's authorized reserve, should be adequate to cover budgeted expenses for the crop year.

Section 987.72(d) of the order states that the committee may maintain a monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The committee expects to utilize $25,250 of the reserve during the year to cover expenses, leaving approximately $44,750 in the reserve account. The remaining reserve will be below the limit specified in the order.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate is effective for an indefinite period, the committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2015-16 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 70 date producers in the production area and 11 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms as those whose annual receipts are less than $7,000,000. (13 CFR 121.201)

According to the National Agricultural Statistics Service (NASS), data for the most-recently completed crop year (2014) shows that about 3.54 tons, or 7,080 pounds, of dates were produced per acre. The 2014 producer price published by NASS was $1,190 per ton. Thus, the value of date production per acre in 2014-15 averaged about $4,213 (3.54 tons times $1,190 per ton). At that average price, a producer would have to farm over 178 acres to receive an annual income from dates of $750,000 ($750,000 divided by $4,213 per acre equals 178.02 acres). According to committee staff, the majority of California date producers farm less than 178 acres. Thus, it can be concluded that the majority of date producers could be considered small entities. In addition, according to data from the committee staff, the majority of California date handlers have receipts of less than $7,000,000 and may also be considered small entities.

This rule decreases the assessment rate established by the committee and collected from handlers for the 2015-16 and subsequent crop years from $0.20 to $0.10 per hundredweight of dates handled. The committee unanimously recommended 2015-16 expenditures of $59,250 and an assessment rate of $0.10 per hundredweight of dates, which is $0.10 lower than the 2014-15 rate currently in effect. The quantity of assessable dates for the 2015-16 crop year is estimated at 29,000,000 pounds (290,000 hundredweight). Thus, the $0.10 rate should provide $29,000 in assessment income. Income derived from handler's assessments, and funds from the committee's authorized reserve, and other funds should be adequate to cover expenses for the 2015-16 crop year.

The major expenditure recommended by the committee for the 2015-16 crop year is $59,250 for general and administrative expenses. In comparison, the major expenditures recommended by the Committee for the 2014-15 crop year included $56,200 for general and administrative expenses and $2,800 for contingency funds.

The committee recommended a lower assessment rate because income generated from the lower assessment rate applied to the larger crop, combined with carry-in funds from the 2014-15 crop year, should be sufficient to cover anticipated 2015-16 expenses and to maintain a financial reserve within the limit specified under the order.

Section 987.72(d) of the order states that the committee may maintain a monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The committee estimated a $70,000 reserve carry-in for the 2015-16 crop year. It expects to utilize $25,250 of the reserve during the year, for a carry-out of approximately $44,750, which is below the limit specified in the order.

The committee reviewed and unanimously recommended 2015-16 crop year expenditures of $59,250. Prior to arriving at this budget, the Committee considered alternative expenditure levels and assessment rates. The committee recommended an assessment rate of $0.10 per hundredweight of dates after considering several factors including the anticipated 2015-16 crop size, the committee's estimates of the incoming reserve funds and other income, and its anticipated expenses.

A review of historical and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2015-16 crop year could be approximately $60.00 per hundredweight of dates. Utilizing these estimates and the assessment rate of $0.10 per hundredweight, the estimated assessment revenue for the 2015-16 crop year as a percentage of total producer revenue is approximately 0.17 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and decreasing the assessment rate reduces the burden on handlers. In addition, the committee meeting was widely publicized throughout the California date industry, and all interested persons were invited to attend the meetings and encouraged to participate in committee deliberations on all issues. Like all committee meetings, the June 25, 2015, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Industry members also discussed the various possible assessment rates, potential crop size, and estimated expenses at this meeting. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, “Vegetable and Specialty Crop Marketing Orders.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Riverside County, California date handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2015-16 crop year began on October 1, 2015, and the marketing order requires that the rate of assessment for each crop year apply to all assessable dates handled during such crop year; (2) the action decreases the assessment rate for assessable dates beginning with the 2015-16 crop year; (3) handlers are aware of this action which was unanimously recommended by the committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 987

Dates, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 987 is amended as follows:

PART 987—DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY, CALIFORNIA 1. The authority citation for 7 CFR part 987 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 987.339 is revised to read as follows:
§ 987.339 Assessment rate.

On and after October 1, 2015, an assessment rate of $0.10 per hundredweight is established for Riverside County, California dates.

Dated: October 22, 2015. Rex A. Barnes, Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-27340 Filed 10-27-15; 8:45 am] BILLING CODE 3410-02-P
FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303 and 391 RIN 3064-AE24 Filing Requirements and Processing Procedures for Changes in Control With Respect to State Nonmember Banks and State Savings Associations AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Final rule.

SUMMARY:

On November 25, 2014, the FDIC published a notice of proposed rulemaking (proposed rule or NPR) to amend its filing requirements and processing procedures for notices filed under the Change in Bank Control Act (Notices). The comment period closed January 26, 2015, and no comments were received. The FDIC is now adopting that proposed rule as final with one change (final rule). The final rule accomplishes several objectives. First, the final rule consolidates into one subpart the current requirements and procedures for Notices filed with respect to State nonmember banks and certain parent companies thereof, and the requirements and procedures for Notices filed with respect to State savings associations and certain parent companies thereof. Second, the final rule rescinds the FDIC's separate regulation governing the requirements and procedures for Notices filed with respect to State savings associations and certain parent companies thereof and rescinds any guidance issued by the Office of Thrift Supervision (OTS) relating to changes in control of State savings associations that is inconsistent with the final rule. Third, the final rule adopts the best practices of the related regulations of the Office of the Comptroller of the Currency (OCC) and the Board of Governors of the Federal Reserve System (Board of Governors). Finally, the final rule clarifies the FDIC's requirements and procedures based on its experience interpreting and implementing the existing regulation. This final rule is also part of the FDIC's continuing review of its regulations under the Economic Growth and Regulatory Paperwork Reduction Act of 1996.

DATES:

The final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Ann Johnson Taylor, Supervisory Counsel, [email protected]; Gregory S. Feder, Counsel, [email protected]; Rachel J. Ackmann, Counsel, [email protected]; Robert C. Fick, Senior Counsel, [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

The Federal Deposit Insurance Act (FDI Act) at section 7(j) (the Change in Bank Control Act) generally provides that no person may acquire control of an insured depository institution unless the person has provided the appropriate Federal banking agency prior written notice of the transaction and the banking agency has not objected to the proposed transaction.1 Subpart E of Part 303 of the FDIC's rules and regulations 2 (Subpart E of Part 303) implements section 7(j) of the FDI Act and sets forth the filing requirements and processing procedures for Notices filed with respect to the proposed acquisition of State nonmember banks and certain parent companies thereof.3

1 12 U.S.C. 1817(j).

2 12 CFR 303.80 et seq.

3 Certain industrial loan companies, trust companies, and credit card banks that are State nonmember banks under the FDI Act are not “banks” under the Bank Holding Company Act (“BHC Act”). 12 U.S.C. 1841(c)(2). Therefore, a company that seeks to control such an institution would not necessarily have to be a bank holding company under the BHC Act and would not have to be subject to supervision by the Board of Governors. However, such a company would have to file a Notice with, and obtain the approval of, the FDIC prior to acquiring such an institution.

The Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. 5301, et seq. (Dodd-Frank Act), among other things, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. On July 21, 2011, (the “transfer date” established by section 311 of the Dodd-Frank Act), the powers, duties, and functions formerly assigned to, or performed by, the OTS were transferred to (i) the FDIC, as to State savings associations; 4 (ii) the OCC, as to Federal savings associations; and (iii) the Board of Governors, as to savings and loan holding companies.5 Section 316(b) of the Dodd-Frank Act provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS.6 The section provides that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

4 As of June 2015, there are approximately 50 State savings associations insured by the FDIC.

5 12 U.S.C. 5411.

6 12 U.S.C. 5414(b).

Section 316(c) of the Dodd-Frank Act, further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations which would be enforced by each agency.7 On June 14, 2011, the Board of Directors of the FDIC (the Board) approved a “List of OTS Regulations to be Enforced by the OCC and the FDIC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act”. This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.8

7 12 U.S.C. 5414(c).

8 76 FR 39246 (July 6, 2011).

Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act granted the OCC rulemaking authority relating to savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology.9 Section 312(c) of the Dodd-Frank Act amended section 3(q) of the FDI Act and designated the FDIC as the “appropriate Federal banking agency” for State savings associations.10 As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it has in the final rule, the FDIC is authorized to issue, modify, and rescind regulations involving such associations.11

9 12 U.S.C. 5412(b)(2)(B)(i)(II).

10 12 U.S.C. 1813(q).

11 12 U.S.C. 1819(a)(Tenth).

As noted above, on June 14, 2011, operating pursuant to this authority, the Board reissued and redesignated certain regulations transferred from the former OTS. These regulations were adopted and issued as new FDIC regulations at Parts 390 and 391 of Title 12. When it republished these regulations as new FDIC regulations, the FDIC specifically noted that staff would evaluate the transferred regulations and might later recommend amending them, rescinding them, or incorporating the transferred regulations into other FDIC rules as appropriate.

Certain of the regulations transferred to the FDIC govern acquisitions of State savings associations under the Change in Bank Control Act (transferred CBCA regulation).12 The FDIC is incorporating portions of those regulations into the FDIC's Subpart E of Part 303 and rescinding the transferred CBCA regulation. In addition to consolidating and conforming the change in control regulations for both State nonmember banks and State savings associations, the final rule increases the consistency of Subpart E of Part 303 with the OCC's and the Board of Governors' related regulations by incorporating certain best practices of those regulations into Subpart E of Part 303.13 Also, the FDIC is generally updating Subpart E of Part 303 to provide greater transparency to its change in control regulation based on its experience interpreting and implementing the Change in Bank Control Act.

12 12 CFR part 391, subpart E, entitled Acquisitions of Control of State Savings Associations.

13 12 CFR 5.50 et seq. (OCC) and 12 CFR 225.41-.43 (Board of Governors).

II. Proposed Rule

On November 25, 2014, the FDIC published the NPR, which proposed amending the FDIC's filing requirements and processing procedures for Notices.14 The FDIC did not receive any comments on the proposed rule and is now adopting the proposed rule as final with only one modification.

14 79 FR 70121 (Nov. 25, 2014).

III. Final Rule a. Section 303.80 Scope

The scope of the final rule makes it clear that Subpart E of Part 303 applies to acquisitions of control of State nonmember banks, State savings associations, and certain companies that control one or more State nonmember banks and/or State savings associations (parent companies). The FDIC believes that expanding the scope of Subpart E of Part 303 to include State savings associations and certain parent companies 15 and rescinding the transferred CBCA regulation both streamlines its rules and procedures and increases regulatory consistency for all FDIC-supervised institutions. To that end, the final rule defines the term “covered institution” to include an insured State nonmember bank, an insured State savings association, and certain companies that control, directly or indirectly, an insured State nonmember bank or an insured State savings association.

15 A company that is not a bank holding company nor a savings and loan holding company and that seeks to acquire a State savings association that operates solely in a fiduciary capacity would not be subject to supervision by the Board of Governors. Such a company would have to file a Notice with, and obtain the approval of, the FDIC.

In addition, the final rule amends the scope of Subpart E of Part 303 to indicate that the subpart implements the Change in Bank Control Act 16 and to clarify that the subpart includes the procedures for filing and processing a Notice. The revised scope section also sets forth the circumstances that require the filing of a Notice.

16 The final rule uses language adopted from the transferred CBCA regulation.

b. Section 303.81 Definitions 1. Acting in Concert

The final rule defines “acting in concert” as “knowing participation in a joint activity or parallel action towards a common goal of acquiring control of a covered institution whether or not pursuant to an agreement.” This definition is not substantively different from the definition of “acting in concert” in the existing Subpart E of Part 303.17 The only modification is updated terminology. Specifically, the modification replaces the term “insured state nonmember bank or a parent company” with “covered institution” to reflect that the FDIC is also the appropriate Federal banking agency for State savings associations. The FDIC does not believe any further modifications are necessary. The FDIC has not adopted the comparable definition from the transferred CBCA regulation because the definition in the existing Subpart E of Part 303 is broad enough to include the specific circumstances described in the transferred CBCA regulation and is clear and easy to understand.18

17See 12 CFR 303.81(b).

18See 12 CFR 391.41 for the definition of acting in concert in the transferred CBCA regulation.

The FDIC notes that a group of persons acting in concert becomes a different group of persons acting in concert when a member of the group leaves or a new member joins. For example, if certain members of a family have previously filed a Notice with, and received a non-objection from, the FDIC as a group acting in concert, each member of the group must file a new Notice and obtain the FDIC's non-objection when a member of the group ceases participation in the group, and the group continues to hold sufficient shares to constitute “control.”

The FDIC also notes that if a person who is a member of a group acting in concert proposes to acquire voting securities that result in that person holding 25 percent or more of the voting securities in his/her/its own right, then the person must file a Notice with the FDIC because that person individually will have acquired control as defined by the Change in Bank Control Act. Such a person must file a Notice even if that person had already filed and been approved as a member of the group acting in concert.

The FDIC further notes that it will look closely at transactions where a lead investor has a material role in organizing a bank's capital offering. The presence of a lead investor(s) who solicits persons with whom the lead investor has a pattern of co-investing suggests that the solicited investors, together with the lead investor, may constitute a group acting in concert. The FDIC will analyze the facts and circumstances of each case to determine whether such persons constitute a group acting in concert.

2. Company

As discussed in section III.c.3 below, the final rule adds certain rebuttable presumptions of acting in concert, including presumptions relating to companies. The final rule defines the term “company” by reference to section 2 of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841 et seq.) (BHC Act) and includes a catch-all for any person that is not an individual or group of individuals acting in concert, for example, a limited liability company.

3. Control

The final rule defines “control” as “the power, directly or indirectly, to direct the management or policies of a covered institution or to vote 25 percent or more of any class of voting securities of a covered institution.” This definition is not substantively different from the definition of “control” in the existing Subpart E of Part 303.19 The only modification is updated terminology, i.e., replacing “voting shares” with “voting securities” and replacing “insured state nonmember bank or a parent company” with “covered institution” to reflect that the FDIC is also the appropriate Federal banking agency for State savings associations and certain parent companies thereof. The final rule does not adopt the enumerated conditions in the definition of control from the transferred CBCA regulation because the definition of “control” in the final rule is broad enough to include such conditions and enumerating some of the conditions that are probative of control could be read to exclude others.20

19See 12 CFR 303.81(c).

20See 12 CFR 391.43(a)(1).

4. Convertible Securities

As discussed in section III.c.4, the final rule includes a presumption relating to convertible securities. The final rule defines “convertible securities” as debt or equity interests that may be converted into voting securities. The definition is not in the existing Subpart E of Part 303 or the transferred CBCA regulation, but convertible securities are not uncommon in the industry, and the FDIC's regulations will now reflect this fact.21

21See 12 CFR 225.31(d)(1).

5. Covered Institution

The final rule defines the term “covered institution” as “an insured State nonmember bank, an insured State savings association, and any company that controls, directly or indirectly, an insured State nonmember bank or an insured State savings association other than a holding company that is the subject of an exemption described in either section 303.84(a)(3) or (a)(8).” Therefore, the final rule could apply to an individual's acquisition of voting securities of a bank holding company or savings and loan holding company, provided the transaction is not otherwise exempted under 303.84(a)(3) or (a)(8). Subsections (a)(3) and (a)(8) exempt transactions that are subject to Section 3 of the BHC Act and transactions for which the Board of Governors reviews a Notice. The 303.84(a)(3) and (a)(8) exemptions are discussed in section III.e.3 and 8.

The Board of Governors is not the primary regulator of all companies that control State nonmember banks since some State nonmember banks are not “banks” under the BHC Act.22 Also, the Board of Governors is not the primary regulator of all companies that control State savings associations. Under the Home Owners' Loan Act,23 “a company that controls a savings association that functions solely in a trust or fiduciary capacity as described in section 2(c)(2)(D) of the Bank Holding Company Act of 1956” is not a savings and loan holding company.24 As a result, a company that is not otherwise a bank holding company or a savings and loan holding company and that seeks to acquire control of either a State nonmember bank that is not a “bank” under the BHC Act or a State savings association that functions solely in a trust or fiduciary capacity is subject to the final rule and is not be eligible for the exceptions from Notice in 303.84(a)(3) and (a)(8).

22 12 U.S.C. 1841(c)(2).

23 12 U.S.C. 1467a.

24 12 U.S.C. 1467a(a)(1)(D)(ii)(II).

6. Immediate Family

As discussed in section III.c.3 below, the final rule adds certain rebuttable presumptions of acting in concert, including a presumption relating to a person's immediate family. The final rule defines “immediate family” as “a person's parents, mother-in-law, father-in-law, children, step-children, siblings, step-siblings, brothers-in-law, sisters-in-law, grandparents, and grandchildren, whether biological, adoptive, adjudicated, contractual, or de facto; the spouse of any of the foregoing; and the person's spouse.” This definition is similar to the definitions of “immediate family” in the OCC's and the Board of Governors' related regulations.25 The FDIC's final rule interprets the term “spouse” to include any formalized domestic relationship, for example, through civil union or marriage. The final rule does not adopt the definition of “immediate family” in the transferred CBCA regulation because that definition does not include an acquirer's grandparents or step-relatives.26 The FDIC believes that these relations typically have a natural tendency to engage in joint or parallel action to preserve or enhance the value of the family's investment(s).

25See 12 CFR 5.50(d)(4) (OCC) and 12 CFR 225.41(b)(3) (Board of Governors).

26See 12 CFR 391.41.

The FDIC would interpret the term “sibling” as one of two or more individuals having at least one common parent.

7. Person

The final rule defines “person” as “an individual, corporation, limited liability company (LLC), partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, voting trust, or any other form of entity; and includes each party to a voting agreement and any group of persons acting in concert.” The final rule does not adopt the definition of “person” in the transferred CBCA regulation and instead includes an amended version of the definition from the existing Subpart E of Part 303 because the definition from the existing Subpart E of Part 303 more closely tracks the definition of person in the Change in Bank Control Act.27 The final rule amends the definition from the existing Subpart E of Part 303 to explicitly include limited liability companies as persons. The FDIC believes that limited liability companies are more common in the industry than when the statute was enacted in 1978 and therefore merit express recognition as “persons”. The final rule also makes a number of technical edits. For example, to be grammatically correct, the final rule moves “voting trust” to the enumerated list of entities.

27Compare 12 CFR 391.41 and 12 CFR 303.81(e) with 12 U.S.C. 1817(j)(8)(A).

8. Management Official

As discussed in section III.c.3 below, the final rule includes a new presumption of acting in concert relating to a company and its controlling shareholder or management official. The final rule defines management official as “any officer, LLC manager, director, partner, or trustee of an entity, or other person with similar functions and powers with respect to a covered institution.” This definition is substantively identical to the definition previously adopted by the Board of Governors; 28 the only modification, beyond updated terminology, is the inclusion of the term “LLC manager” to recognize the prevalence of limited liability companies in the industry.29 Generally, the final rule treats members of an LLC who are not managers similar to shareholders in a corporation. The final rule does not adopt the definition of “management official” from the transferred CBCA regulation because the final rule's definition is a more accurate description of the persons intended to be covered by the presumption.

28See 12 CFR 225.2(i).

29 The updated terminology replaces “a bank or other company” with the term “entity” and replaces the term “employee” with the term “person”. The OCC recently adopted a definition of “management official”, although the OCC's definition of the term is not substantially identical to the Board of Governors' definition. 80 FR 28346 (May 18, 2015).

9. Voting Securities

Unlike the existing Subpart E of Part 303, the final rule includes a definition of “voting securities”. Including a definition of “voting securities” makes the final rule more consistent with the OCC's and the Board of Governors' related regulations. The final rule defines “voting securities” as shares of common or preferred stock, general or limited partnership shares or interests, membership interests, or similar interests if the shares or interests, by statute, charter, or in any manner, entitle the holder: (i) To vote for, or to select, directors, trustees, managers of an LLC, partners, or other persons exercising similar functions of the issuing entity; or (ii) to vote on, or to direct, the conduct of the operations or significant policies of the issuing entity. The final rule further states that shares of common or preferred stock, limited partnership shares or interests, membership interests, or similar interests are not “voting securities” if: (i) Any voting rights associated with the shares or interests are limited solely to the type customarily provided by State statute with regard to matters that would significantly and adversely affect the rights or preference of the security or other interest, such as the issuance of additional amounts or classes of senior securities, the modification of the terms of the security or interest, the dissolution of the issuing entity, or the payment of dividends by the issuing entity when preferred dividends are in arrears; (ii) the shares or interests represent an essentially passive investment or financing device and do not otherwise provide the holder with control over the issuing entity; and (iii) the shares or interests do not entitle the holder, by statute, charter, or in any manner, to select, or to vote for the selection of, directors, trustees, managers of an LLC, partners, or persons exercising similar functions of the issuing entity. The definition of “voting securities” also states that voting securities issued by a single issuer are deemed to be the same class of voting securities, regardless of differences in dividend rights or liquidation preference, if the securities are voted together as a single class on all matters for which the securities have voting rights, other than rights that affect solely the rights or preferences of the securities.

The definition derives from the Board of Governors' definition of “voting securities” with a few minor modifications.30 For example, unlike the Board of Governors' definition, the definition adopted by the FDIC explicitly references LLCs and managers thereof. Additionally, the definition provides for the existence of nonvoting common stock in addition to nonvoting preferred stock. Similar to the Board of Governors' definition, the final rule excludes nonvoting preferred stock that includes the right to elect or appoint directors upon failure of the covered institution to pay preferred dividends from the definition of voting securities until such time as the right to vote or appoint directors arises. Once the right to vote for or appoint directors arises, such non-voting preferred stock would become voting securities. Again, the final rule does not adopt the definition of “voting securities” from the transferred CBCA regulation because the definition in the final rule is a more accurate definition of the securities that could trigger application of the Change in Bank Control Act.

30See 12 CFR 225.2(q)(1).

10. Other Definitions

The final rule does not define “acquisition” as does existing Subpart E of Part 303. The final rule also does not adopt several other definitions in the transferred CBCA regulation. For example, the terms “State savings association” and “affiliate” are also not defined in the final rule as those terms are defined in the FDI Act. The FDIC is not adopting these definitions because they were determined to be unnecessary or are statutorily defined in the FDI Act.

c. Section 303.82 Transactions That Require Prior Notice 1. Section 303.82(a) Prior Notice Requirement

The proposed rule asked whether the FDIC should continue to exempt all future acquisitions of voting securities of an institution once a person has acquired control in compliance with the procedures from the Change in Bank Control Act. Such a change would make the final rule more consistent with the OCC and the Board of Governors who reserve the right to limit a person's future acquisition of voting securities. As noted above, the FDIC received no comments on this question or any other aspect of the proposed rule and has decided to limit the scope of that exemption in the final rule consistent with the regulations of the OCC and the Board of Governors.31

31 12 CFR 5.50(c)((2)(ii) and 12 CFR 225.42(a)(2).

Specifically, the final rule requires persons previously approved to acquire control to file a second prior Notice in certain circumstances. Similar to the proposed rule, the final rule requires any person, whether acting directly or indirectly, alone or in concert with others, to give the FDIC prior written notice before the acquisition of control of a covered institution, unless the acquisition is exempt.32 However, the final rule provides that unless waived by the FDIC, a person who has been approved to acquire control of a covered institution and who has maintained that control must file a second Notice before any acquisition that would increase a person's ownership, control, or power to vote from less than 25 percent to 25 percent or more of any class of voting securities of the covered institution. The FDIC may waive this requirement if it is in the public interest and consistent with the purposes of the CBCA and the FDI Act.

32See 12 CFR 303.82(a) and 12 CFR 391.42(b). The FDIC notes that section 391.42(b) of the transferred CBCA regulation includes two specific exceptions (one for certain persons affiliated with a savings and loan holding company and one for mergers with interim companies) that are not explicitly stated in this section of the final rule. These exceptions are statutory and included in the rule in section 303.84.

2. Section 303.82(b)(1) Rebuttable Presumption of Control

The final rule includes a rebuttable presumption of control that generally applies whenever a person's acquisition would result in that person owning or controlling 10 percent or more of a class of voting securities of a covered institution, and either (1) the institution has issued any class of securities subject to the registration requirements of section 12 of the Securities Exchange Act of 1934, or (2) immediately after the transaction, no other person will own a greater proportion of that class of voting securities. The final rule removes from existing Subpart E of Part 303 the provision that if two or more persons, not acting in concert, each propose to acquire simultaneously equal percentages of 10 percent or more of a class of voting securities of a covered institution, each such person shall file a prior Notice with the FDIC. The final rule clarifies the FDIC's policy by removing the implication that the largest shareholders only have to file a Notice if they simultaneously acquire the voting securities. By removing that provision, the final rule makes it clear that if two or more shareholders each propose to acquire an equal percentage of any class of voting securities where that percentage is 10 percent or more and where no other shareholder will own or control a greater percentage of that class of voting securities, then each such acquirer must file a Notice. The timing of each shareholder's acquisition is irrelevant.

The transferred CBCA regulation also includes a rebuttable presumption of control, but the presumption is triggered only if there exists one of the enumerated control factors.33 The enumerated control factors include factors such as that the acquirer would be one of the two largest holders of any class of voting stock; the acquirer would hold 25 percent or more of the total stockholders' equity; the acquirer would hold more than 35 percent of the combined debt securities and stockholders' equity; or the acquirer and/or the acquirer's representatives or nominees would constitute more than one member of the institution's board of directors.34 The final rule does not include any control factors as additional elements to the rebuttable presumption of control. The FDIC notes that the enumerated control factors represent only some of the circumstantial factors that the FDIC analyzes when determining whether a person will acquire the ability to direct the management or policies of a covered institution. The FDIC believes that the determination of whether a person will acquire the power to direct the management or policies of an institution is dependent on the facts and circumstances of the case and that it is impractical and potentially misleading to attempt to list all such factors.

33 12 CFR 391.43(b).

34 12 CFR 391.43(c).

It is also noted that the Board of Governors has issued a policy statement entitled Policy Statement on Equity Investments in Banks and Bank Holding Companies regarding the interpretation of the BHC Act.35 The policy statement generally provided certain guidance regarding the amount of total equity a person can control without the Board of Governors determining that the person has the ability to exercise a controlling influence over the management or policies of a banking organization. A person who acquires total equity in excess of the amount proscribed in that guidance would likely have to file an application under the BHC Act. The FDIC has found the logic of the policy statement useful in analyzing fact patterns under the Change in Bank Control Act, but has not adopted that policy statement pending further consideration.

35See http://www.federalreserve.gov/newsevents/press/bcreg/20080922c.htm.

The proposed rule asked to what extent and under what circumstances would the control of one-third or more of a covered institution's total equity give such a person the power to direct the management or policies of a covered institution. As noted above, no comments were received on the proposed rule. Pending further consideration, the FDIC has determined not to adopt a presumption that the power to control a covered institution for purposes of the Change in Bank Control Act exists at one-third of an institution's total equity. Instead, the FDIC will continue to review such issues based on the facts and circumstances of each case.

The existing Subpart E of Part 303 states that ownership interests other than those set forth in the rebuttable presumption of control and that represent less than 25 percent of a class of an institution's voting shares do not constitute control for purposes of the Change in Bank Control Act.36 The final rule does not include this provision because the provision has been a source of confusion regarding the meaning of the term “control”. The FDIC has occasionally addressed questions regarding this provision and now seeks to clarify in the final rule that the definition of “control” includes two standards: One based on the amount of voting securities controlled by a person and the other based on a facts-and-circumstances analysis of whether a person has the power to direct the management or policies of a covered institution. The FDIC notes that the change does not expand the thresholds in the rebuttable presumption of control, but only removes the potential ambiguity regarding whether the facts and circumstances alone could support a conclusion that a person will control the institution. Such a facts-and-circumstances analysis is consistent with both the statutory definition of “control” in the Change in Bank Control Act and the FDIC's long-standing practices.

36 12 CFR 303.82(d).

3. Section 303.82(b)(2) Rebuttable Presumptions of Acting in Concert

The final rule includes new rebuttable presumptions of acting in concert. The acting in concert presumptions included in the final rule are generally derived from the rebuttable presumptions of acting in concert in the Board of Governors' regulations.37 The OCC recently adopted presumptions consistent with the Board of Governors' presumptions of acting in concert.38

37 12 CFR 225.41(d).

38 80 FR 28346 (May 18, 2015).

The final rule includes an acting in concert presumption with respect to a company and any controlling shareholder or management official of that company. If both the company and controlling shareholder or management official will own or control voting securities of a covered institution, then the FDIC will presume that the company and the controlling shareholder or management official are acting in concert.

Second, the final rule includes an acting in concert presumption between an individual and one or more members of the individual's immediate family. If two or more members of an immediate family will own or control voting securities of a covered institution, then the FDIC will presume that those persons are acting in concert. The definition of immediate family is discussed in section III.b.5 above.

The final rule also includes presumptions of acting in concert between (i) two or more companies under common control or a company and each other company it controls; (ii) persons that have made or propose to make a joint filing under sections 13 or 14 of the Securities Exchange Act of 1934; 39 and (iii) a person and any trust for which the person serves as trustee or any trust for which the person is a beneficiary.

39 Section 13 of the Securities Exchange Act of 1934 (the “Exchange Act”) requires the filing of timely and accurate annual and periodic reports, and Section 14 of the Exchange Act requires the filing of proxy materials. For purposes of the reporting provisions of section 13(g), section 13(g)(3) provides that two or more persons acting “as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer, such syndicate or group shall be deemed a “person” for the purposes of” section 13(g)”. Section 14 has a similar reporting provision for such persons.

The final rule also includes a presumption that persons that are parties to any agreement, contract, understanding, relationship, or other arrangement, whether written or otherwise, regarding the acquisition, voting, or transfer of control of voting securities of a covered institution, other than through revocable proxies as described in 303.84(a)(5), are presumed to be acting in concert. The FDIC has included these presumptions in the final rule because the interests of such parties are so aligned that there exists a natural tendency to act together toward such a common goal.

The transferred CBCA regulation includes a presumption of acting in concert for a company that provides certain financial assistance to a controlling shareholder or management official of such company to enable the purchase of a State saving association's stock.40 The FDIC believes that such situations are included within the presumption regarding a company and any controlling shareholder or management official of that company. The transferred CBCA regulation also includes a presumption of acting in concert when one person provides credit to, or is instrumental in obtaining financing for, another person to purchase stock of a covered institution.41 The FDIC does not believe this situation, by itself, aligns persons' interests to an extent sufficient to warrant a presumption of acting in concert. Accordingly, the final rule does not include that presumption. However, the FDIC notes that providing or facilitating the financing for another person to purchase stock would be relevant evidence of acting in concert that in combination with other facts and circumstances may result in a determination that those persons are acting in concert.

41 12 CFR 391.43(d)(3)(ii).

4. Section 303.82(b)(3) Convertible Securities, Options, and Warrants

The final rule includes a rebuttable presumption that an acquisition of convertible securities, options, and warrants is presumed to constitute the acquisition of voting securities as if the conversion already occurred or the options or warrants were already exercised. The existing Subpart E of Part 303 does not explicitly include such a presumption; however, the transferred CBCA regulation, and the related regulations of the Board of Governors, treat such securities in a similar manner. The FDIC's longstanding position is that the acquisition of an option or warrant constitutes the acquisition of the underlying voting securities for purposes of the Change in Bank Control Act even if they may only be exercised after a period of time. The FDIC also believes that nonvoting interests that may be converted into voting securities at the election of the holder of the convertible securities, or that convert after the passage of time, should be considered voting securities at all times for purposes of the Change in Bank Control Act. However, the FDIC recognizes that nonvoting securities that are convertible into voting securities carry less influence when the nonvoting securities may not be converted into voting securities in the hands of the investor and may only be converted after transfer by the investor: (i) In a widespread public distribution; (ii) in transfers in which no transferee (or group of associated transferees) would receive 2 percent or more of any class of voting securities of the banking organization; or (iii) to a transferee that would control more than 50 percent of the voting securities of the banking organization without any transfer from the investor. The FDIC would generally consider such convertible securities as nonvoting equity.

5. Section 303.82(b)(4) Rebuttal of Presumptions

The procedures for rebutting a presumption of control remain unchanged from the existing Subpart E of Part 303.42 The final rule does not include the detailed procedures for rebutting the presumptions included in the transferred CBCA regulation because the FDIC believes that the variety of the facts and circumstances often encountered dictate the more flexible process embodied in the existing Subpart E of Part 303.43

42See 12 CFR 303.82(e).

43See 12 CFR 391.43(e).

6. Section 303.82(c) Acquisition of Loans in Default

The final rule provides that an acquisition of a loan in default that is secured by voting securities of a covered institution is deemed to be an acquisition of the underlying voting securities. This treatment is not substantively different from the treatment of a loan in default secured by voting securities in the existing Subpart E of Part 303; 44 however, the final rule is not identical to existing Subpart E of Part 303. The FDIC has received questions about the use of the term “presumes” in Subpart E of Part 303 and whether the presumption is rebuttable. As the presumption is not rebuttable, the final rule clarifies this issue by stating that such acquisitions are “deemed” to be an acquisition of the underlying voting securities for purposes of the Change in Bank Control Act.

44See 12 CFR 303.82(c).

7. Transferred CBCA Regulation's Safe Harbor

Notwithstanding any other provisions in the transferred CBCA regulation, the “Safe Harbor” provision permits an acquirer of an otherwise controlling interest in a State savings association to avoid filing a Notice if the acquirer has no intention of participating in, or seeking to exercise control over, a State savings association's management or policies.45 To qualify for the safe harbor, the acquirer must make certain certifications to the FDIC. The final rule does not include this regulatory safe harbor. The FDIC believes that any certifications or passivity commitments executed in connection with an acquisition of voting securities must be tailored to the facts and circumstances of each situation and a fixed set of certifications would not likely capture the variety of circumstances presented in such situations.

45 12 CFR 391.43(f).

d. Section 303.83 Transactions That Require Notice, but Not Prior Notice

Existing Subpart E of Part 303 and the transferred CBCA regulation do not require prior Notice for the acquisition of voting securities for certain types of acquisitions. For example, both regulations permit a person acquiring voting securities through inheritance or bona fide gift to provide Notice within 90 calendar days after the acquisition. Existing Subpart E of Part 303 and the transferred CBCA regulation, however, differ materially in what transactions are eligible for an after-the-fact Notice and the limitations imposed on the acquirer before receiving a non-objection. As discussed in detail below, the final rule materially amends existing Subpart E of Part 303 by incorporating several aspects of the transferred CBCA regulation.46

46See 12 CFR 303.83(b) and 12 CFR 391.42(d).

1. Section 303.83(a)(1)

The final rule, like the existing Subpart E of Part 303 and the transferred CBCA regulation, provides that acquisitions through bona fide gift that result in control of an institution requires the acquirer to provide Notice to the FDIC within 90 days after the acquisition.

2. Section 303.83(a)(2)

The final rule, as does the existing Subpart E of Part 303, provides that the acquisition of voting securities in satisfaction of a debt previously contracted for in good faith that would otherwise require prior Notice requires the acquirer to provide Notice to the FDIC within 90 days after the acquisition. (Note that the acquisition of a defaulted loan secured by an amount of a covered institution's voting securities that would result in the acquirer holding a controlling amount of the institution's voting securities requires prior Notice).47 The transferred CBCA regulation creates separate Notice requirements for such acquisitions based on whether the loan was made in the ordinary course of business for the lender; however, the FDIC does not believe that distinction warrants separate Notice procedures, and therefore, the FDIC has not adopted such separate Notice requirements.

47See section 303.82(c).

3. Section 303.83(a)(3)

The final rule, as does existing Subpart E of Part 303, permits an acquirer to provide Notice to the FDIC within 90 days after the acquisition of voting securities through an inheritance where the acquisition would result in the acquirer holding a controlling amount of the institution's voting securities. The final rule provides a slightly longer period for filing a Notice than the transferred CBCA regulation. The transferred CBCA regulation provides a sixty-day Notice period for State savings associations.48 In the final rule, acquirers of State savings associations or parent companies of State savings associations have the same timeframe (90 days after the acquisition) as acquirers of State nonmember banks or parent companies of State nonmember banks.

48 12 CFR 391.42(d)(1)(v).

4. Section 303.83(b)(1)

The final rule, like the existing Subpart E of Part 303 and the transferred CBCA regulation, permits the filing of a Notice within 90 days after being notified of a redemption of voting securities that results in the acquisition of control of the covered institution.The final rule is substantively the same as existing Subpart E of Part 303. The difference relates to a change in regulatory language to reflect that a person might acquire control without acquiring additional voting securities when a covered institution redeems voting securities. For example, if the two largest shareholders hold 23 and 21 percent of a covered institution's voting securities, and the covered institution redeems all of the voting securities held by the person with 23 percent, the person with 21 percent would have to file a Notice. As such, the final rule uses the term “acquisition of control” instead of “a percentage increase in voting securities”. The transferred CBCA regulation provides different Notice procedures for redemptions based on whether the redemption is pro rata or is not pro rata.49 The FDIC does not believe the distinction between types of redemptions merits varying Notice procedures. Accordingly, the final rule provides that if a person acquires control of a covered institution as a result of a redemption, that person has 90 days after receiving notice of the transaction to provide Notice to the FDIC.

49 12 CFR 391.42(d)(1)(iii).

5. Section 303.83(b)(2)

Existing Subpart E of Part 303 permits a person to provide the FDIC Notice within 90 days after receiving notice of a sale of shares by any shareholder that is not within the control of a person and which results in that person becoming the largest shareholder.50 The final rule revises this provision. Under the final rule, if a person gains control as a result of any third-party event or action that is not within the control of the person acquiring control, that person must file a Notice within 90 days of receiving notice of such action. This provision, similar to the catch-all in the transferred CBCA regulation, is intended to provide a broader exemption from prior Notice requirements than an exemption based solely on an acquisition of control arising from the sale of securities which results in the acquirer becoming the largest shareholder.51 The FDIC also interprets the catch-all to include any transfer that results from the operation of law. For example, some trustees are appointed by operation of law or in the course of a bankruptcy proceeding. Under the final rule, such a trustee must provide the FDIC with a Notice within 90 days after the trustee is appointed and acquires control of a covered institution. This provision codifies long-standing FDIC policy. The FDIC notes that if the person acquiring control causes the third-party event or action, then prior Notice is required.

50 12 CFR 303.83(b)(2)(ii).

51See 12 CFR 391.42(d)(1)(iv).

6. Section 303.83(c)

The final rule expressly provides that the FDIC may disapprove a Notice filed after-the-fact and that nothing in section 303.83 limits the FDIC's authority to disapprove a Notice. Existing Subpart E of Part 303 includes this provision with respect to acquisitions of control of State nonmember banks and certain parent companies of State nonmember banks; the final rule also applies this provision to acquisitions of control of State savings associations and certain parent companies of State savings associations.

7. Section 303.83(d)

The final rule explicitly states that the relevant information that the FDIC may require under this section may include all of the information typically required for a prior Notice. The relevant information may include, without limitation, all the information requested by the Interagency Notice of Change in Control form and the Interagency Biographical and Financial Report. This provision is not in existing Subpart E of Part 303, but is included in the final rule for transparency and to codify long-standing FDIC policy.

8. Section 303.83(e)

The final rule expressly states that if the FDIC disapproves a Notice, then the notificant must divest control of the covered institution which may include, without limitation, disposing of some or all of the voting securities so that the notificant(s) is no longer in control of the covered institution. This provision is not in existing Subpart E of Part 303, but is included in the final rule for clarity and to codify long-standing FDIC policy.

9. Additional Transferred CBCA Regulation Provisions Not Included

In addition to the provisions discussed above, the final rule does not include the express caveat that transactions eligible for after-the-fact Notice are only eligible for after-the-fact Notice provided that the timing of the transaction is outside the control of the notificant. The FDIC does not believe that it is necessary to state explicitly such a restraint on eligibility for an after-the-fact Notice because failure to comply with the statutory or regulatory provisions may subject the acquirer to liability. As a result, the FDIC has historically interpreted the exceptions to prior Notice as including this restraint.

e. Section 303.84 Transactions That Do Not Require Notice 1. Section 303.84(a)(1)

Section 303.84(a)(1) includes grandfather provisions for long-held control interests in covered institutions. Under section 303.84(a)(1)(i), Notice is not required when a person acquires additional voting securities of covered institution if the person held the power to vote 25 percent or more of any class of voting securities continuously since the later of March 9, 1979, or the date the institution commenced business. This exemption from Notice requirements is not substantively different from the exemption in the existing Subpart E of Part 303 and only updates terminology.52

52See 12 CFR 303.83(a)(1)(i).

The transferred CBCA regulation has a substantively identical exemption to 303.84(a)(1)(i) in the final rule for persons that have previously held the power to vote 25 percent or more of any class of voting securities continuously since March 9, 1979; however, it does not exempt persons who held the power to vote 25 percent or more of any class of voting securities since the date the savings association commenced business.53 The final rule, however, exempts such an acquisition. As such, compared to the transferred CBCA regulation, the final rule expands the Notice exemptions for persons who held the power to vote 25 percent or more of any class of voting securities since the date the savings association commenced business. The FDIC believes this expansion makes the change in control requirements more uniform and consistent among State savings associations, State nonmember banks, and certain parent companies of either. In general, the FDIC does not believe significant reasons exist to treat acquisitions of control of State savings associations or parent companies thereof differently, in this respect, than acquisitions of control of State nonmember banks and parent companies thereof, and, by issuing this final rule, has tried to make their treatment as uniform as possible. Furthermore, because shareholders who have held over 25 percent of the voting securities since the commencement of a State savings association were likely reviewed by the FDIC when the institution acquired its charter and deposit insurance, generally, the FDIC does not believe that the same shareholders need to be reviewed a second time when they acquire additional voting securities.

53 12 CFR 391.42(c)(2)(v)(A) and (B).

Under section 303.84(a)(1)(ii), Notice is not required when a person who is presumed to have controlled a covered institution continuously since March 9, 1979, acquires additional voting securities of an institution provided that the aggregate amount of voting securities held does not exceed 25 percent or more of any class of voting securities, or the FDIC has determined that the person has continuously controlled the institution since March 9, 1979.54 The final rule does not amend this exemption for State nonmember banks or certain parent companies thereof. The transferred CBCA regulation included a similar provision, except with a grandfather date of December 26, 1985.55 The final rule does not include the grandfather date from the transferred CBCA regulation; rather it adopts the same grandfather provisions for State savings associations as are applicable for State nonmember banks. This treatment generally reflects the FDIC's position that acquirers of State savings associations should be treated in a similar manner to acquirers of State nonmember banks. In addition, this treatment is consistent with the OCC's treatment of Federal savings associations.56

54 12 CFR 303.83(a)(1)(ii).

55 The difference in the grandfather date is due to a difference in when the presumptions in the transferred CBCA regulation and Existing Subpart E of Part 303 became effective. The FDIC does not anticipate many persons, if any, would be affected by the March 9,1979 grandfather date for State savings associations.

56 12 CFR 5.50(c)(2).

2. Section 303.84(a)(2)

The existing Subpart E of Part 303 and the transferred CBCA regulations exempt from Notice requirements certain persons who have controlled a covered institution in compliance with the procedures of the Change in Bank Control Act or the repealed Change in Savings and Loan Control Act, or any regulations issued under either act, and who acquires additional voting securities.57 The final rule retains this exemption, with an exception for a notice that is required by a person who increases their ownership as provided in 12 CFR 303.82(a)(2). As noted above, both the OCC and the Board of Governors reserve the right to limit the future acquisitions of a person who has once been approved to acquire control.

57 12 CFR 303.83(a)(2) and 391.42(c)(2)(v).

3. Section 303.84(a)(3)

Under the Change in Bank Control Act and both the existing Subpart E of Part 303 and the transferred CBCA regulation, acquisitions of voting securities that are subject to approval under section 3 of the BHC Act,58 section 18(c) of the FDI Act,59 or section 10 of the Home Owners' Loan Act 60 are exempt from Notice requirements. These are statutory exemptions and are included in the final rule for clarity.61

58 12 U.S.C. 1842 et seq.

59 12 U.S.C. 1828(c).

60 12 U.S.C. 1467b.

61 12 U.S.C. 1817(j)(17).

4. Section 303.84(a)(4)

The existing Subpart E of Part 303 exempts from Notice requirements those transactions that are exempt under the BHC Act including, foreclosures by institutional lenders, fiduciary acquisitions by banks, and increases of majority holdings by bank holding companies described in sections 2(a)(5), 3(a)(A), or 3(a)(B), respectively, of the BHC Act, 12 U.S.C. 1841(a)(5), 1842(a)(A), and 1842(a)(B).62 The final rule includes these exemptions, but does not include the text preceding the statutory references. The text, “foreclosures by institutional lenders, fiduciary acquisitions by banks, and increases of majority holdings by bank holding companies” is removed for clarity only; no substantive change is intended or effected. Intended as shorthand references to the subject matter of the statutory provisions, the text has generated confusion regarding its proper interpretation in that it could be interpreted as limiting the scope of those statutory references. In order to eliminate that confusion, the FDIC has deleted the text. Consequently, the final rule provides that any transaction described in sections 2(a)(5), 3(a)(A), or 3(a)(B) of the BHC Act by a person described in those provisions is exempt from Notice requirements.

62 12 CFR 303.83(a)(4). The transferred CBCA regulation includes references to exempt transactions in 12 CFR 391.42(c)(2)(i)(A), (ii), (iii), and (iv) that are substantially similar to the exempt transactions included in the final rule.

5. Section 303.84(a)(5)

The existing Subpart E of Part 303 exempts a customary one-time proxy solicitation from the Notice requirements.63 The final rule technically modifies this exemption by expressly limiting its applicability to only revocable proxies, which is in line with long-standing FDIC interpretation. This exemption is applicable any time revocable proxies are solicited for a single meeting of a covered institution. This exemption does not cover irrevocable proxies or revocable proxies that do not terminate within a reasonable period after the meeting. The transferred CBCA regulation does not include a similar exemption for the one-time solicitation of revocable proxies. However, the FDIC believes that this exemption is just as appropriate for state savings associations as it is for state nonmember banks, and the final rule extends this exemption to State savings associations.

63 12 CFR 303.83(a)(5).

6. Section 303.84(a)(6)

The existing Subpart E of Part 303 also exempts from Notice requirements the receipt of voting shares through a pro rata stock dividend.64 The transferred CBCA regulation has a similar exemption, but extends the exemption to stock splits, if the proportional interests of the recipients remain substantially the same.65 This language is similar to language contained in the Board of Governors' change in control regulation.66 The FDIC believes the effect of a stock split is substantially similar to the effect of a pro rata stock dividend and has incorporated this exemption. Thus, the final rule permits an exemption for an increase in voting securities through either a pro rata stock dividend or a stock split, provided the proportional interests of the recipients remain the same.

64 12 CFR 303.83(a)(6).

65 12 CFR 391.42(c)(2)(i)(C).

66See 12 CFR 225.42(a)(6).

7. Section 303.84(a)(7)

The final rule, like the existing Subpart E of Part 303, exempts the acquisition of voting securities in a foreign bank that has an insured branch in the United States.

8. Section 303.84(a)(8)

The existing Subpart E of Part 303 exempts from Notice requirements the acquisition of voting shares of a depository institution holding company that either the Board of Governors or the former OTS reviews under the Change in Bank Control Act.67 The purpose of this exemption is to avoid duplicate regulatory review of the same acquisition of control by both the Board of Governors and the FDIC. The final rule includes this exemption, but removes the reference to the former OTS. The final rule also continues the FDIC's longstanding practice to recognize this exemption only when the Board of Governors actually reviews a Notice under the Change in Bank Control Act and not when the Board of Governors does not require and review a Notice. Accordingly, if the Board of Governors determines to accept passivity commitments in lieu of a Notice, the FDIC will evaluate the facts and circumstances of the case to determine whether a Notice is required to be filed with the FDIC for the indirect acquisition of control of an FDIC-supervised institution. This revision to the existing Subpart E of Part 303 is consistent with the language in the transferred CBCA regulation, which states that transactions for which “a change of control notice must be submitted” to the Board of Governors are exempt from Notice requirements.68 This revision is also consistent with the purpose of the exemptions and the FDIC's long-standing practice.

67 12 CFR 303.83(a)(8). This fact pattern would arise, for example, when an individual investor, rather than a company, seeks to acquire control of a bank holding company.

68 12 CFR 391.42(c)(2)(iv).

9. Other Transferred CBCA Regulation Exemptions

The transferred CBCA regulation also includes an exemption for acquisitions of up to twenty-five percent of a class of stock by a tax-qualified employee stock benefit plan as defined in 12 CFR 192.25.69 The final rule does not include this provision because such plans are treated in the same manner as any trust. To the extent that a trustee does not have voting rights or the power to direct how the votes will be cast, typically the FDIC would not determine that the trustee has control.

69 12 CFR 391.42(c)(2)(i)(E).

f. 303.85 Filing Procedures

The filing procedures in the final rule are identical to the filing procedures in the existing Subpart E of Part 303.70 The FDIC is not substantially modifying the filing procedures in the existing Subpart E of Part 303 because these procedures are well-understood by the industry and have historically been easy to implement by both the FDIC and the industry. The final rule changes the filing procedures specified in the transferred CBCA regulation such that acquirers of State savings associations and certain parent companies thereof do not need to file a Notice using the OTS's Notice Form 1393.71 Under the final rule, a specific Notice form is not required, however, all of the information required by the FFIEC Interagency Notice of Change in Control form as well as the Interagency Biographical and Financial Report would need to be submitted.72 The FDIC encourages the use of the FFIEC forms.

70See 12 CFR 303.84.

71 12 CFR 391.45(a) and (b).

72 A notificant may choose to use an interagency form which is available at the FFIEC Web site or from an FDIC Regional Director.

Additionally, the final rule does not specifically state that the notificant may amend the Notice, as in the transferred CBCA regulation, but it is current FDIC policy that notificants can amend a Notice at their own initiative or upon the request of the FDIC.

g. 303.86 Processing and Disapproval of Notices

The procedural requirements in the final rule are substantively identical to the procedural requirements in the existing Subpart E of Part 303.73 Similar to the reasoning for not substantially modifying the filing procedures in the existing Subpart E of Part 303, the FDIC is not making any substantive changes to the processing procedures in the final rule. Relative to the procedural requirements in the existing Subpart E of Part 303, the only modification is to state explicitly that the Change in Bank Control Act permits the FDIC to extend the notice period.74 Material changes applicable to State savings associations, as compared to the transferred CBCA regulation, are discussed below.75

73See 12 CFR 303.85.

74See 12 CFR 303.86(b)(1).

75 See 12 CFR 391.45(c) and 391.46 for relevant provisions of the transferred CBCA regulation.

First, the final rule does not include the provision in the transferred CBCA regulation that failure by a State savings association to respond to a written request for information or documents within 30 calendar days would be deemed a withdrawal of the Notice or rebuttal filing.76 Instead, any written request for information from the FDIC may include a time-limit within which the institution must respond before the Notice or rebuttal filing would be considered abandoned or withdrawn. This procedure provides more flexibility depending on the depth and amount of information requested.

76See 12 CFR 391.45(c)(1).

Second, the final rule does not include the limitation in the transferred CBCA regulation restricting the FDIC's additional information requests, after the initial information request, to only information regarding matters derived from the initial information request or Notice, or information of a material nature that was not reasonably available for the acquirer, was concealed, or pertained to developments after the time of the initial information request.77 The final rule does not include such a restriction because the FDIC believes it should have the flexibility to obtain all material information throughout the notice review period.

77See 12 CFR 391.45(c)(3).

Additionally, the transferred CBCA regulation includes a list of factors that give rise to a rebuttable presumption that an acquirer may fail the integrity and financial condition statutory factors.78 For example, if during the 10-year period immediately preceding the filing of the Notice, certain judgments, consents, orders, or administrative proceedings terminated in any agreements or orders issued against the acquirer, or affiliates of the acquirer, by any governmental entity, which involve: (A) Fraud, moral turpitude, dishonesty, breach of trust or fiduciary duties, organized crime or racketeering; (B) violation of securities or commodities laws or regulations; (C) violation of depository institution laws or regulations; (D) violation of housing authority laws or regulations; or (E) violation of the rules, regulations, codes of conduct or ethics of a self-regulatory trade or professional organization, there is a rebuttable presumption that the notificant cannot meet the statutory integrity factor. For the financial condition factor, for instance, if the notificant failed to furnish a business plan or furnished a business plan projecting activities which are inconsistent with economical home financing, then there is a rebuttable presumption the notificant cannot meet the financial condition statutory factor. As discussed above, the final rule does not adopt the presumption regarding disqualification factors. Nevertheless, the FDIC notes that these are the sort of facts that it considers when evaluating the financial or integrity factors.

78 12 CFR 391.46(g).

h. 303.87 Public Notice Requirement

The final rule does not substantively amend the public notice requirements in the existing Subpart E of Part 303.79 The final rule includes minor revisions to the public notice requirements for Notices that are not filed in accordance with the Change in Bank Control Act and this subpart within the time periods specified. The final rule harmonizes the public notice requirements for such Notices with the requirements for Notices filed in accordance with the Change in Bank Control Act and this subpart. Material changes applicable to State savings associations, as compared to the transferred CBCA regulation, are discussed below.80

79See 12 CFR 303.86.

80See 12 CFR 391.45.

First, the transferred CBCA regulation does not explicitly permit the FDIC to delay publication requirements. The final rule, like the existing Subpart E of Part 303, permits the FDIC to delay the publication required if the FDIC determines, for good cause, that it is in the public interest to grant a delay.

The final rule also permits the FDIC to shorten the public comment period to a period of not less than 10 days, or waive the public comment or newspaper publication requirements, or act on a Notice before the expiration of a public comment period, if it determines that an emergency exists or that disclosure of the Notice, solicitation of public comment, or delay until expiration of the public comment period would seriously threaten the safety and soundness of the institution to be acquired. The transferred CBCA regulation permits the FDIC to waive the public notice period and submission of comments for supervisory reasons.81 The final rule includes the language from the existing Subpart E of Part 303 and not the broader language from the transferred CBCA regulation because the FDIC believes that such a waiver should be rare and granted only as specified in the existing Subpart E of Part 303. The FDIC believes that public comment is an important right and should only be waived for an emergency or serious threats to an institution's safety and soundness.

81 12 CFR 391.45(g).

The transferred CBCA regulation provides for a 30-day comment period, but the existing Subpart E of Part 303 and the final rule include a 20-day comment period.82 The final rule includes a 20-day comment period because, in the FDIC's experience, the 20-day comment period in the existing Subpart E of Part 303 has provided potential commenters sufficient time to comment. In addition, a 20-day comment period gives the FDIC sufficient time to review any comments during the limited statutory review period (60-days unless extended further). Finally, a 20-day comment period provides consistency among the Federal banking agencies with respect to State savings associations, State nonmember banks, national banks, and State member banks.

82 12 CFR 303.86(d) and 12 CFR 391.45(e).

The final rule also requires that if a Notice was not filed in accordance with the Change in Bank Control Act and this subpart within the time periods specified, the notificant must publish an announcement of the acquisition of control in a newspaper of general circulation in the community in which the home office of the FDIC-supervised institution acquired is located within 10 days after being directed to file a Notice by the FDIC. This express requirement is not included in the transferred CBCA regulation.

The transferred CBCA regulation includes a provision regarding how an applicant can request that information submitted in connection with a Notice be treated as confidential.83 The final rule does not include these procedures because the FDIC has comparable disclosure and confidentiality regulations in 12 CFR part 309 that already cover such requests.

83 12 CFR 391.45(f).

Finally, the transferred CBCA regulation explicitly states that the FDIC will notify the State savings association's State supervisor of the filing of a Notice.84 As this is a statutory requirement, the FDIC does not believe its inclusion in the final rule is necessary.

84 12 CFR 391.45(h).

i. 303.88 Reporting of Stock Loans and Changes in Chief Executive Officers and Directors

The final rule includes two longstanding statutory reporting requirements that are not included in existing Subpart E of Part 303 or the transferred CBCA regulation. The first statutory reporting requirement relates to any foreign bank, or any affiliate thereof, that has credit outstanding to any person or group of persons which is secured, directly or indirectly, by 25 percent or more of any class of voting securities of a covered institution.85 The second statutory reporting requirement included in the final rule relates to changes in chief executive officers and directors of a bank within 12 months of a change in control being consummated.86 The final rule does not add to, or modify, the existing statutory requirements and only includes the longstanding statutory requirements to enhance transparency for covered institutions.

85 12 U.S.C. 1817(j)(9).

86 12 U.S.C. 1817(j)(12).

j. Other Transferred CBCA Regulation Provisions

The final rule does not include similar language to that in 12 CFR 391.45(i)-(j), which outlines additional procedures for Notices that involve other filings to the FDIC. Notificants should review other applicable regulatory sections, such as 12 CFR 303.60 et seq. concerning merger applications or mutual-to-stock conversions, for further information on related filings. The FDIC generally prefers not to cross-reference filings that a particular transaction may require. The FDIC notes that acquisitions of voting securities subject to approval under section 18(c) of the FDI Act are exempt from Notice requirements.

The transferred CBCA regulation also contains a rebuttal of control agreement.87 The final rule does not include this agreement because the FDIC believes that a rebuttal of control should be tailored to the facts and circumstances of each situation, and a standard agreement would not typically capture the various circumstances that may be present in some situations. The FDIC prefers to make any potential rebuttal of control decision only after reviewing the facts and circumstances of the particular acquisition.88

87 12 CFR 391.48.

88See also discussion at II.c.7, supra.

The final rule also excludes the requirement in the transferred CBCA regulation that certain acquirers of beneficial ownership exceeding 10 percent of any class of stock of a State savings association file a certification of ownership. The FDIC believes that the regulatory burden of these filings exceeds the benefits derived from them.

k. Existing OTS Guidance

All guidance issued by the OTS that would otherwise apply to changes in control of State savings associations and that is inconsistent with the provisions of this final rule or the FDIC's policies or procedures is rescinded on the effective date of this final rule to the extent that such guidance would otherwise apply to changes in control of State savings associations.

IV. Regulatory Analyses A. Paperwork Reduction Act (PRA)

In accordance with the requirements of the Paperwork Reduction Act of 1995, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.89 The Interagency Notice of Change in Control form has previously been approved by the OMB under Control No. 3064-0019 for all covered institutions, including State nonmember banks and State savings associations. This final rule does not revise the Interagency Notice of Change in Control form for covered institutions; therefore, no Information Collection Request will be submitted to OMB.

89 44 U.S.C. 3501 et seq.

B. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act (RFA) generally requires that, in connection with a final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of a final rule on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million). A regulatory flexibility analysis, however, is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory statement in the Federal Register together with the final rule. For the reasons provided below, the FDIC certifies that the final rule does not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.

The final rule only affects persons acquiring control of covered institutions, which may include small banking entities. As such, the rule does not have a significant economic impact on a substantial number of small entities as the final rule does not impose any new requirements or prohibitions on small banking entities and does not impose any direct costs on small banking entities. As discussed in the preamble, the final rule primarily revises the circumstances that require the filing of a Notice for persons acquiring control of a covered institution, including a small banking entity. Any impact of the final rule is borne by the persons acquiring a controlling interest in a covered institution and not by the covered institution directly. Furthermore, for State nonmember banks and certain of their parent companies, the final rule generally codifies existing FDIC practice and should only marginally affect the number of persons subject to Notice requirements. While the changes for State savings associations are more material, the changes generally conform the requirements for acquirers of State savings associations under the transferred CBCA regulation with the requirements for acquirers of other insured depository institutions and should not materially increase the number of change in control Notices that must be filed. Currently, the FDIC receives approximately 35 change in control Notices each year, and the FDIC does not expect the final rule to increase the number of Notices received. As such, the final rule does not have a significant economic impact on a substantial number of small banking entities.

C. Plain Language

Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000. The FDIC sought to present the proposed rule in a simple and straightforward manner and did not receive any comments on the use of plain language. The FDIC has similarly drafted the final rule.

List of Subjects in 12 CFR Part 303

Administrative practice and procedure, Banks, Banking, Savings associations, Change in bank control.

Federal Deposit Insurance Corporation 12 CFR Chapter III Authority and Issuance

For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends parts 303 and 391 of chapter III of Title 12, Code of Federal Regulations as follows:

PART 303—FILING PROCEDURES 1. Revise the authority citation for part 303 to read as follows: Authority:

12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819(a) (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207, 5414; 15 U.S.C. 1601-1607.

2. Revise Subpart E to read as follows: Subpart E—Change in Bank Control Act Sec. 303.80 Scope. 303.81 Definitions. 303.82 Transactions that require prior notice. 303.83 Transactions that require notice, but not prior notice. 303.84 Transactions that do not require notice. 303.85 Filing procedures. 303.86 Processing. 303.87 Public notice requirements. 303.88 Reporting of stock loans and changes in chief executive officers and directors. 303.89-303.99 [Reserved] Subpart E—Change in Bank Control
§ 303.80 Scope.

This subpart implements the provisions of the Change in Bank Control Act of 1978, section 7(j) of the FDI Act (12 U.S.C. 1817(j)) (CBCA), and sets forth the filing requirements and processing procedures for a notice of change in control with respect to the acquisition of control of a State nonmember bank, a State savings association, or certain parent companies of either a State nonmember bank or a State savings association.

§ 303.81 Definitions.

For purposes of this subpart:

(a) Acting in concert means knowing participation in a joint activity or parallel action towards a common goal of acquiring control of a covered institution whether or not pursuant to an express agreement.

(b) Company means a company as defined in section 2 of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841 et seq.) and any person that is not an individual including for example, a limited liability company.

(c) Control means the power, directly or indirectly, to direct the management or policies of a covered institution or to vote 25 percent or more of any class of voting securities of a covered institution.

(d) Convertible securities mean debt or equity interests that may be converted into voting securities.

(e) Covered institution means an insured State nonmember bank, an insured State savings association, and any company that controls, directly or indirectly, an insured State nonmember bank or an insured State savings association other than a holding company that is the subject of an exemption described in either section 303.84(a)(3) or (a)(8).

(f) Immediate family means a person's parents, mother-in-law, father-in-law, children, step-children, siblings, step-siblings, brothers-in-law, sisters-in-law, grandparents, and grandchildren, whether biological, adoptive, adjudicated, contractual, or de facto; the spouse of any of the foregoing; and the person's spouse.

(g) Person means an individual, corporation, limited liability company (LLC), partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, voting trust, or any other form of entity; and includes each party to a voting agreement and any group of persons acting in concert.

(h) Management official means any officer, LLC manager, director, partner, or trustee of an entity, or other person with similar functions and powers with respect to a company.

(i)(1) Voting securities means shares of common or preferred stock, general or limited partnership shares or interests, membership interests, or similar interests if the shares or interests, by statute, charter, or in any manner, entitle the holder:

(i) To vote for, or to select, directors, trustees, managers of an LLC, partners, or other persons exercising similar functions of the issuing entity; or

(ii) To vote on, or to direct, the conduct of the operations or significant policies of the issuing entity.

(2) Nonvoting shares: Shares of common or preferred stock, limited partnership shares or interests, membership interests, or similar interests are not “voting securities” if:

(i) Any voting rights associated with the shares or interests are limited solely to the type customarily provided by State statute with regard to matters that would significantly and adversely affect the rights or preference of the security or other interest, such as the issuance of additional amounts or classes of senior securities, the modification of the terms of the security or interest, the dissolution of the issuing entity, or the payment of dividends by the issuing entity when preferred dividends are in arrears;

(ii) The shares or interests represent an essentially passive investment or financing device and do not otherwise provide the holder with control over the issuing entity; and

(iii) The shares or interests do not entitle the holder, by statute, charter, or in any manner, to select, or to vote for the selection of, directors, trustees, managers of an LLC, partners, or persons exercising similar functions of the issuing entity.

(3) Class of voting securities: Voting securities issued by a single issuer are deemed to be the same class of voting securities, regardless of differences in dividend rights or liquidation preference, if the securities are voted together as a single class on all matters for which the securities have voting rights other than matters described in paragraph (i)(2)(i) of this section that affect solely the rights or preferences of the securities.

§ 303.82 Transactions that require prior notice.

(a) Prior notice requirement. (1) Except as provided in §§ 303.83 and 303.84, no person, acting directly or indirectly, or through or in concert with one or more persons, shall acquire control of a covered institution unless the person shall have given the FDIC prior notice of the proposed acquisition as provided in the CBCA and this subpart, and the FDIC has not disapproved the acquisition within 60 days or such longer period as may be permitted under the CBCA; and

(2) Except as provided in §§ 303.83 and 303.84, and unless waived by the FDIC, no person who has been approved to acquire control of a covered institution and who has maintained that control shall acquire, directly or indirectly, or through or in concert with one or more persons, voting securities of such covered institution if that person's ownership, control, or power to vote will increase from less than 25 percent to 25 percent or more of any class of voting securities of the covered institution, unless the person shall have given the FDIC prior notice of the proposed acquisition as provided in the CBCA and this subpart, and the FDIC has not disapproved the acquisition within 60 days or such longer period as may be permitted under the CBCA.

(b) Rebuttable presumptions—(1) Rebuttable presumptions of control. The FDIC presumes that an acquisition of voting securities of a covered institution constitutes the acquisition of the power to direct the management or policies of that institution requiring prior notice to the FDIC, if, immediately after the transaction, the acquiring person will own, control, or hold with power to vote 10 percent or more of any class of voting securities of the institution, and if:

(i) The institution has registered securities under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l); or

(ii) No other person will own, control or hold the power to vote a greater percentage of that class of voting securities immediately after the transaction.

(2) Rebuttable presumptions of acting in concert. The following persons who own or control, or propose to own or control voting securities in a covered institution, shall be presumed to be acting in concert for purposes of this subpart:

(i) A company and any controlling shareholder or management official of the company;

(ii) An individual and one or more members of the individual's immediate family;

(iii) Companies under common control or a company and each company it controls;

(iv) Two or more persons that have made, or propose to make, a joint filing related to the proposed acquisition under sections 13 or 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78n), and the rules promulgated thereunder by the Securities and Exchange Commission;

(v) A person and any trust for which the person serves as trustee or any trust for which the person is a beneficiary; and

(vi) Persons that are parties to any agreement, contract, understanding, relationship, or other arrangement, whether written or otherwise, regarding the acquisition, voting, or transfer of control of voting securities of a covered institution, other than through revocable proxies as described in § 303.84(a)(5).

(3) Convertible securities, options, and warrants. The acquisition of convertible securities, or options or warrants to acquire voting securities is presumed to constitute the acquisition of voting securities.

(4) Rebuttal of presumptions. The FDIC will afford any person seeking to rebut a presumption in this paragraph (b) an opportunity to present its views in writing.

(c) Acquisition of loans in default. An acquisition of a loan in default that is secured by voting securities of a covered institution is deemed to be an acquisition of the underlying securities for purposes of this subpart. Before acquiring a loan in default that upon foreclosure would result in the acquiring person owning, controlling, or holding with the power to vote a controlling amount of a covered institution's voting securities, the potential acquirer must give the FDIC prior written notice as specified in this subpart.

§ 303.83 Transactions that require notice, but not prior notice.

(a) Notice within 90 days after the acquisition. The following acquisitions of voting securities of a covered institution, which otherwise would require prior notice under this subpart, instead require the acquirer to provide to the appropriate FDIC office within 90 calendar days after the acquisition all relevant information requested by the FDIC:

(1) The acquisition of voting securities as a bona fide gift;

(2) The acquisition of voting securities in satisfaction of a debt previously contracted in good faith, except as provided in § 303.82(c); and

(3) The acquisition of voting securities through inheritance.

(b) Notice within 90 days after receiving notice of the event giving rise to the acquisition of control. The following acquisitions of control of a covered institution, which otherwise would require prior notice under this subpart, instead require the person acquiring control to provide to the appropriate FDIC office, within 90 calendar days after receiving notice of the event giving rise to the acquisition of control, all relevant information requested by the FDIC:

(1) The acquisition of control resulting from a redemption of voting securities by the issuing covered institution; and

(2) The acquisition of control as a result of any event or action (including without limitation the sale of securities) by any third party that is not within the control of the person acquiring control.

(c) The FDIC may disapprove a notice filed after an acquisition of control, and nothing in this section limits the authority of the FDIC to disapprove a notice pursuant to § 303.86(c).

(d) The relevant information that the FDIC may require under this section may include all information and documents routinely required for a prior notice as provided in § 303.85.

(e) If the FDIC disapproves a Notice filed under this § 303.83, the notificant(s) must divest control of the covered institution which may include, without limitation, disposing of some or all of the voting securities so that the notificant(s) is no longer in control of the covered institution, within such period of time and in the manner that the FDIC may determine.

§ 303.84 Transactions that do not require notice.

(a) Exempt transactions. The following transactions do not require notice to the FDIC under this subpart:

(1) The acquisition of additional voting securities of a covered institution by a person who:

(i) Held the power to vote 25 percent or more of any class of voting securities of the institution continuously since the later of March 9, 1979, or the date that the institution commenced business; or

(ii) Is presumed, under § 303.82(b) to have controlled the institution continuously since March 9, 1979, if the aggregate amount of voting securities held does not exceed 25 percent or more of any class of voting securities of the institution or, in other cases, where the FDIC determines that the person has controlled the institution continuously since March 9, 1979;

(2) The acquisition of additional voting securities of a covered institution by a person who has lawfully acquired and maintained control of the institution (for purposes of § 303.82) after obtaining the FDIC's non-objection under the CBCA and the FDIC's regulations or the OTS's non-objection under the repealed Change in Savings and Loan Control Act, 12 U.S.C. 1730(q), and the regulations thereunder then in effect, to acquire control of the institution, unless a notice is required for an increase in ownership described in 12 CFR 303.82(a)(2);

(3) Acquisitions of voting securities subject to approval under section 3 of the Bank Holding Company Act (12 U.S.C. 1842(a)), section 18(c) of the FDI Act (12 U.S.C. 1828(c)), or section 10 of the Home Owners' Loan Act (12 U.S.C. 1467a);

(4) Any transaction described in sections 2(a)(5), 3(a)(A), or 3(a)(B) of the Bank Holding Company Act (12 U.S.C. 1841(a)(5), 1842(a)(A), or 1842(a)(B)) by a person described in those provisions;

(5) A customary one-time solicitation of a revocable proxy;

(6) The receipt of voting securities of a covered institution through a pro rata stock dividend or stock split if the proportional interests of the recipients remain substantially the same;

(7) The acquisition of voting securities in a foreign bank that has an insured branch in the United States. (This exemption does not extend to the reports and information required under paragraphs 9, 10, and 12 of the CBCA (12 U.S.C. 1817(j)(9), (10), and (12)); and

(8) The acquisition of voting securities of a depository institution holding company for which the Board of Governors of the Federal Reserve System reviews a notice pursuant to the CBCA (12 U.S.C. 1817(j)).

§ 303.85 Filing procedures.

(a) Filing notice. (1) A notice required under this subpart shall be filed with the appropriate FDIC office and shall contain all the information required by paragraph 6 of the CBCA, section 7(j) of the FDI Act, (12 U.S.C. 1817(j)(6)), or prescribed in the designated interagency forms which may be obtained from any FDIC regional director.

(2) The FDIC may waive any of the informational requirements of the notice if the FDIC determines that it is in the public interest.

(3) A notificant shall notify the appropriate FDIC office immediately of any material changes in the information contained in a notice submitted to the FDIC, including changes in financial or other conditions.

(4) When the acquiring person is an individual, or group of individuals acting in concert, the requirement to provide personal financial data may be satisfied by a current statement of assets and liabilities and an income summary, as required in the designated interagency form, together with a statement of any material changes since the date of the statement or summary. The FDIC may require additional information if appropriate.

(b) Other laws. Nothing in this subpart shall affect any obligation which the acquiring person(s) may have to comply with the federal securities laws or other laws.

§ 303.86 Processing.

(a) Acceptance of notice, additional information. The FDIC shall notify the person or persons submitting a notice under this subpart in writing of the date the notice is accepted as substantially complete. The FDIC may request additional information at any time.

(b) Commencement of the 60-day notice period: consummation of acquisition. (1) The 60-day notice period specified in § 303.82 shall commence on the day after the date of acceptance of a substantially complete notice by the appropriate regional director. The notificant(s) may consummate the proposed acquisition after the expiration of the 60-day notice period, unless the FDIC disapproves the proposed acquisition or extends the notice period as provided in the CBCA.

(2) The notificant(s) may consummate the proposed transaction before the expiration of the 60-day period, including any extensions, if the FDIC notifies the notificant(s) in writing of its intention not to disapprove the acquisition.

(c) Disapproval of acquisition of control. Subpart D of 12 CFR part 308 sets forth the rules of practice and procedure for a notice of disapproval.

§ 303.87 Public notice requirements.

(a) Publication—(1) Newspaper announcement. Any person(s) filing a notice under this subpart shall publish an announcement soliciting public comment on the proposed acquisition. The announcement shall be published in a newspaper of general circulation in the community in which the home office of the covered institution to be acquired is located.

(2) Timing of publication. The announcement shall be published as close as is practicable to the date the notice is filed with the appropriate FDIC office, but in no event more than 10 calendar days before or after the filing date. If the filing is not filed in accordance with the CBCA and this subpart within the time periods specified herein, the acquiring person(s) shall, within 10 days of being directed by the FDIC to file a Notice, publish an announcement of the acquisition of control.

(3) Contents of newspaper announcement. The newspaper announcement shall conform to the public notice requirements set forth in § 303.7. If the filing is not filed in accordance with the CBCA and this subpart within the time periods specified herein, the announcement shall also include the date of the acquisition and contain a statement indicating that the FDIC is currently reviewing the acquisition of control.

(b) Delay of publication. The FDIC may permit delay in the publication required by this section if the FDIC determines, for good cause, that it is in the public interest to grant such a delay. Requests for delay of publication may be submitted to the appropriate FDIC office.

(c) Shortening or waiving public comment period, waiving publications; acting before close of public comment period. The FDIC may shorten the public comment period to a period of not less than 10 days, or waive the public comment or newspaper publication requirements of paragraph (a) of this section, or act on a notice before the expiration of a public comment period, if it determines in writing either that an emergency exists or that disclosure of the notice, solicitation of public comment, or delay until expiration of the public comment period would seriously threaten the safety and soundness of the State nonmember bank or State savings association to be acquired.

(d) Consideration of public comments. In acting upon a notice filed under this subpart, the FDIC shall consider all public comments received in writing within 20 days following the required newspaper publication or, if the FDIC has shortened the public comment period pursuant to paragraph (c) of this section, within such shorter period.

§ 303.88 Reporting of stock loans and changes in chief executive officers and directors.

(a) Requirements of reporting stock loans. (1) Any foreign bank or affiliate of a foreign bank that has credit outstanding to any person or group of persons, in the aggregate, which is secured, directly or indirectly, by 25 percent or more of any class of voting securities of a covered institution, shall file a consolidated report with the appropriate FDIC office.

(2) Any voting securities of the covered institution held by the foreign bank or any affiliate of the foreign bank as principal must be included in the calculation of the number of voting securities in which the foreign bank or its affiliate has a security interest for purposes of this paragraph (a).

(b) Definitions. For purposes of paragraph (a) of this section:

(1) Foreign bank shall have the same meaning as in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101).

(2) Affiliate shall have the same meaning as in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101).

(3) Credit outstanding includes any loan or extension of credit; the issuance of a guarantee, acceptance, or letter of credit, including an endorsement or standby letter of credit; and any other type of transaction that extends credit or financing to the person or group of persons.

(4) Group of persons includes any number of persons that the foreign bank or any affiliate of a foreign bank has reason to believe:

(i) Are acting together, in concert, or with one another to acquire or control voting securities of the same covered institution, including an acquisition of voting securities of the same covered institution at approximately the same time under substantially the same terms; or

(ii) Have made, or propose to make, a joint filing under section 13 or 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78n), and the rules promulgated thereunder by the Securities and Exchange Commission regarding ownership of the voting securities of the same covered institution.

(c) Exceptions. Compliance with paragraph (a) of this section is not required if:

(1) The person or group of persons referred to in paragraph (a) has disclosed the amount borrowed and the security interest therein to the appropriate FDIC office in connection with a notice filed under the CBCA, an application filed under either 12 U.S.C. 1841, et seq. or 12 U.S.C. 1467a, or any other application filed with the FDIC as a substitute for a notice under § 303.82 of this subpart, including an application filed under section 18(c) of the FDI Act (Bank Merger Act, 12 U.S.C. 1828(c)) or section 5 of the FDI Act (12 U.S.C. 1815); or

(2) The transaction involves a person or group of persons that has been the owner or owners of record of the stock for a period of one year or more; or, if the transaction involves stock issued by a newly chartered bank, before the bank is opened for business.

(d) Report requirements for purposes of paragraph (a) of this section. (1) The consolidated report must indicate the number and percentage of voting securities securing each applicable extension of credit, the identity of the borrower, the number of voting securities held as principal by the foreign bank and any affiliate thereof, and any additional information that the FDIC may require in connection with a particular report.

(2) A foreign bank, or any affiliate of a foreign bank, shall file the consolidated report in writing within 30 days of the date on which the foreign bank or affiliate first believes that the security for any outstanding credit consists of 25 percent or more of any class of voting securities of a covered institution.

(e) Foreign bank or affiliate not supervised by FDIC. If the foreign bank, or any affiliate thereof, is not supervised by the FDIC, it shall file a copy of the report filed under paragraph (a) of this section with its appropriate Federal banking agency.

(f) Reporting requirement. After the consummation of a change in control, a covered institution must notify the FDIC in writing of any changes or replacements of its chief executive officer or of any director occurring during the 12-month period beginning on the date of consummation. This notice must be filed within 10 days of such change or replacement and must include a statement of the past and current business and professional affiliations of the new chief executive officers or directors.

§§ 303.89-303.99 [Reserved]
PART 391—FORMER OFFICE OF THRIFT SUPERVISION REGULATIONS 3. The authority for part 391 is revised to read as follows: Authority:

12 U.S.C. 1819(a) (Tenth).; Subpart A also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; 1881-1884; 15 U.S.C. 1681w; 15 U.S.C. 6801; 6805.; Subpart B also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; 1881-1884; 15 U.S.C.1681w; 15 U.S.C. 6801; 6805.; Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w.; Subpart D also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 42 U.S.C. 4012a; 4104a; 4104b; 4106; 4128.

Subpart E—[Removed and Reserved]
4. Remove and reserve subpart E, consisting of §§ 391.40 through 391.48.

By order of the Board of Directors.

Dated at Washington, DC this 22nd day of October, 2015. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
[FR Doc. 2015-27289 Filed 10-27-15; 8:45 am] BILLING CODE 6714-01-P
FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 308, 364, and 391 RIN 3064-AE28 Removal of Transferred OTS Regulations Regarding Safety and Soundness Guidelines and Compliance Procedures; Rules on Safety and Soundness AGENCY:

Federal Deposit Insurance Corporation.

ACTION:

Final rule.

SUMMARY:

The Federal Deposit Insurance Corporation (“FDIC”) is adopting a final rule (“Final Rule”) to rescind and remove from the Code of Federal Regulations 12 CFR part 391, subpart B (“part 391, subpart B”), entitled “Safety and Soundness Guidelines and Compliance Procedures,” appendices A and B to part 391, subpart B, and supplement A to appendix B. The Final Rule also amends 12 CFR part 308, subpart R (“part 308, subpart R”), entitled “Submission and Review of Safety and Soundness Compliance Plans and Issuance of Orders to Correct Safety and Soundness Deficiencies,” and 12 CFR part 364 (“part 364”), entitled “Standards for Safety and Soundness” and its corresponding appendices and supplement. Part 391, subpart B was one of several rules transferred to the FDIC following dissolution of the former Office of Thrift Supervision (“OTS”) in connection with the implementation of applicable provisions of Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Section 316(b)(3) of the Dodd-Frank Act provided that the former OTS rules that were transferred to the FDIC would be enforceable by or against the FDIC until they were modified, terminated, set aside, or superseded in accordance with applicable law by the FDIC, by any court of competent jurisdiction, or by operation of law. On January 30, 2015, the FDIC published in the Federal Register a notice of proposed rulemaking (“NPR” or “Proposed Rule”) that explained and solicited public comment on a proposal to rescind and remove part 391, subpart B and to amend part 364, its appendices, and its supplement and part 308, subpart R by making them applicable to “State savings associations” and making minor technical updates to the appendices and supplement to part 364. The FDIC received no comments on the Proposed Rule and consequently is adopting the Final Rule as proposed in the NPR without change.

DATES:

The Final Rule is effective on November 27, 2015.

FOR FURTHER INFORMATION CONTACT:

Rebecca M. Parks, Review Examiner, Division of Risk Management Supervision (202) 898-3912; Jann L. Harley, Senior Attorney, Legal Division (312) 382-6535; or Michael P. Condon, Counsel, Legal Division (202) 898-6536.

SUPPLEMENTARY INFORMATION: I. Background The Dodd-Frank Act

The Dodd-Frank Act provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency (“OCC”), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (“FRB”), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. The section provides that if such materials were in effect on the day before the transfer date, they continue in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations which would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be Enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.1

1 76 FR 39247 (July 6, 2011).

Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “appropriate Federal banking agency” contained in Section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify, and rescind regulations involving such associations, as well as for State nonmember banks and insured branches of foreign banks.

As noted, on June 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.2 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

2 76 FR 47652 (Aug. 5, 2011).

II. Proposed Rule A. Removal of Part 391, Subpart B

On January 30, 2015, the FDIC published an NPR proposing to remove part 391, subpart B, which was one of the OTS's former rules that was transferred to the FDIC and governs safety and soundness guidelines, the submission and review of safety and soundness compliance plans, and the issuance of orders to correct safety and soundness deficiencies. The OTS's rule, formerly found at 12 CFR part 570, was transferred to the FDIC with only nomenclature changes and is now found in the FDIC's rules at part 391, subpart B, entitled “Safety and Soundness Guidelines and Compliance Procedures.” The “Interagency Guidelines Establishing Standards for Safety and Soundness” were found at appendix A to part 391, subpart B, the “Interagency Guidelines Establishing Information Security Standards” were found at appendix B to part 391, subpart B, and the “Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice” were found at the supplement to appendix B to part 391, subpart B.

Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 364, entitled “Standards for Safety and Soundness,” a rule establishing safety and soundness standards for State nonmember insured banks and to State-licensed insured branches of foreign banks, that are subject to section 39 of the FDI Act, 12 U.S.C. 1831p-1. Part 364 also established safety and soundness standards relating to information security for State nonmember insured banks, insured State licensed branches of foreign banks, and any subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisors) as set out in appendix B to part 364, the “Interagency Guidelines Establishing Information Security Standards” and supplement A to appendix B to part 364, the “Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice.” Additionally, before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 308, subpart R, entitled “Submission and Review of Safety and Soundness Compliance Plans and Issuance of Orders to Correct Safety and Soundness Deficiencies.”

The NPR proposed to remove part 391, subpart B, its appendices, and its supplement because they are redundant of the rules found in part 364, its appendices, and its supplement and part 308, subpart R. Rescinding part 391, subpart B, serves to streamline the FDIC's rules and eliminate unnecessary regulations.

B. Amendments to Part 364, Its Appendices, and Part 308, Subpart B

In addition, the NPR proposed to revise part 308, subpart R, and part 364 and the accompanying appendices A and B and supplement A to appendix B. Furthermore, to clarify that part 308, subpart R, and part 364 and its accompanying appendices A and B and supplement A to appendix B, apply to all insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency, the NPR proposed to amend part 308, subpart R, and part 364 and to reissue the appendices and supplement A to appendix B to part 364 to add “State savings associations” within the list of institutions to which the rules and the appendices apply.

FDIC's Existing 12 CFR Part 308, Subpart R

Section 132 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”), Pub. L. 102-242, added Section 39 to the FDI Act (12 U.S.C. 21 1831p-1), which required each Federal banking agency to establish by regulation certain safety and soundness standards for the insured depository institutions for which it was the primary Federal regulator. Section 39 of the FDI Act was further amended on September 23, 1994 by section 318 of the Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325. In response to Section 39 of the FDI Act, the FDIC adopted subpart R of part 308 in 1995 to address the submission and review of safety and soundness compliance plans and issuance of orders to correct safety and soundness deficiencies.

FDIC's Existing 12 CFR Part 364 and Appendices A and B and Supplement A to Appendix B

Section 132 of the FDICIA, Pub. L. 102-242, added Section 39 to the FDI Act (12 U.S.C. 21 1831p-1), which required each Federal banking agency to establish by regulation certain safety and soundness standards for the insured depository institutions for which it was the primary Federal regulator. Section 39 of the FDI Act was further amended on September 23, 1994 by section 318 of the Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325. In response to Section 39 of the FDI Act, the FDIC adopted part 364 in 1995 and appendix A to part 364, the “Interagency Guidelines Establishing Standards for Safety and Soundness,” in 1995. The FDIC adopted appendix B to part 364, the “Interagency Guidelines Establishing Information Security Standards,” in 1998. The FDIC adopted supplement A to appendix B to part 364, the “Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice,” in 2005.

Former OTS's 12 CFR Part 570 (Transferred to FDIC's Part 391, Subpart B)

In 1995, the OTS adopted 12 CFR part 570 as a final rule governing safety and soundness guidelines and compliance procedures for State savings associations. The OTS adopted appendix A to part 570, the “Interagency Guidelines Establishing Standards for Safety and Soundness,” in 1995, adopted appendix B to part 570, the “Interagency Guidelines Establishing Information Security Standards,” in 1998, and adopted the supplement to appendix B, the “Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice,” in 2005.

Comparison of Former OTS's 12 CFR Part 570 (Transferred to FDIC's Part 391, Subpart B) and FDIC's Part 364 and Part 308, Subpart R

Despite the differences addressed above and minor technical nuances, the OTS's rule was otherwise substantively similar to the FDIC's rules governing safety and soundness guidelines and compliance procedures found in part 308, subpart R, and part 364 and its accompanying appendices and supplement. After careful comparison of the OTS part 570 (which existed prior to the transfer of the OTS rules to part 391) with the FDIC's part 308, subpart R, and the FDIC's part 364, the FDIC concluded that the transferred OTS rules found at part 391, subpart B, and the accompanying guidelines found in appendices A and B and the supplement to appendix B, are substantively redundant. Therefore, based on the above, the NPR proposed to rescind and remove from the Code of Federal Regulations the rules located at part 391, subpart B, including its appendices and supplement.

In addition, the NPR proposed to amend part 364 and appendix A and B and supplement A to appendix B to include State savings associations within the scope of the regulation and guidelines and minor technical updates. The NPR also proposed to amend part 308, subpart R to apply to State savings associations. The safety and soundness guidelines in part 364 and its accompanying appendices and supplement to appendices apply to all FDIC-supervised institutions, and the procedures found in part 308, subpart R, for the submission and review of safety and soundness compliance plans and issuance of orders to correct safety and soundness deficiencies also apply to all FDIC-supervised institutions.

III. Comments

The FDIC issued the NPR with a 60-day comment period, which closed on March 31, 2015. The FDIC received no comments on the Proposed Rule, and consequently, the Final Rule is adopted as proposed without any changes.

IV. Explanation of the Final Rule

As discussed in the NPR, part 391, subpart B is substantively similar to part 364 and part 308, subpart R for safety and soundness guidelines and compliance plans, and the designation of part 364 and part 308, Subpart R as the single authority for safety and soundness guidelines and compliance plans will serve to streamline the FDIC's rules and eliminate unnecessary regulations. To that effect, the Final Rule removes and rescinds 12 CFR part 391, subpart B, its appendices, and its supplement in their entirety. Consistent with the Proposed Rule, the Final Rule also make conforming and technical amendments to part 364 and its appendices and part 308, subpart R, making all applicable to state savings associations.

V. Regulatory Analysis and Procedure A. The Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3501-3521), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

The Final Rule rescinds and removes part 391, subpart B, from the FDIC regulations. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by Title III of the Dodd-Frank Act. Part 391, subpart B, is largely redundant of the FDIC's existing part 364 regarding standards for safety and soundness and subpart R of the FDIC's existing part 308 regarding the submission and review of safety and soundness compliance plans and issuance of orders to correct safety and soundness deficiencies.

The Final Rule amends parts 364 and subpart R of part 308 to include State savings associations within the scope of those regulations. This measure is to clarify that State savings associations, as well as State nonmember insured banks and foreign banks having insured branches, are all subject to part 364 and the provisions of subpart R of part 308. Thus, these provisions of the Proposed Rule will neither create any new paperwork information collections nor impact current burden estimates. Based on the above, no information collection request has been submitted to the OMB for review.

B. The Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million).3 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory statement in the Federal Register together with the rule. For the reasons provided below, the FDIC certifies that the Final Rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.

3 5 U.S.C. 601 et seq.

As discussed in this notice of proposed rulemaking, part 391, subpart B was transferred from OTS's part 570 which established safety and soundness guidelines and the process for requesting compliance plans and issuing orders to correct deficiencies. OTS's part 570 had been in effect since 1995, and all state savings associations were required to comply with it. Because it is redundant of existing part 364 of the FDIC's rules and subpart R of part 308 of the FDIC's rules, the FDIC proposes rescinding and removing part 391, subpart B. As a result, all FDIC-supervised institutions, including State savings associations, would be required to comply with part 364 and part 308, subpart R. Because all State savings associations have been required to comply with substantially similar safety and soundness guidelines and have been subject to substantially similar procedures for the filing of safety and soundness compliance plans and orders to correct deficiencies since 1995, the Final Rule will have no significant economic impact on any State savings association.

C. Plain Language

Section 722 of the Gramm-Leach-Bliley Act, 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. In the NPR, the FDIC invited comments on whether the Proposed Rule was clearly stated and effectively organized, and how the FDIC might make it easier to understand. Although the FDIC did not receive any comments, the FDIC sought to present the Final Rule in a simple and straightforward manner.

D. The Economic Growth and Regulatory Paperwork Reduction Act

Under Section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.4 The FDIC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is commencing the next decennial review. As part of the NPR, the FDIC invited comments concerning whether the Proposed Rule would impose any outdated or unnecessary regulatory requirements on insured depository institutions. The FDIC received no comments.

4 Pub. L. 104-208 (Sept. 30, 1996).

List of Subjects 12 CFR Part 308

Banks, banking, safety and soundness compliance plans, savings associations.

12 CFR Part 364

Banks, banking, safety and soundness guidelines.

12 CFR Part 391

Safety and soundness guidelines.

Authority and Issuance

For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation amends parts 308, 364, and 391 of title 12 of the Code of Federal Regulations as follows:

PART 308—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 308 continues to read as follows: Authority:

5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717, 15 U.S.C. 78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 110 Stat. 1321-358; and Pub. L. 109-351.

2. Revise subpart R to read as follows: Subpart R—Submission and Review of Safety and Soundness Compliance Plans and Issuance of Orders To Correct Safety and Soundness Deficiencies Sec. 308.300 Scope. 308.301 Purpose. 308.302 Determination and notification of failure to meet a safety and soundness standard and request for compliance plan. 308.303 Filing of safety and soundness compliance plan. 308.304 Issuance of orders to correct deficiencies and to take or refrain from taking other actions. 308.305 Enforcement of orders.
§ 308.300 Scope.

The rules and procedures set forth in this subpart apply to insured state nonmember banks, to state-licensed insured branches of foreign banks, that are subject to the provisions of section 39 of the Federal Deposit Insurance Act (section 39) (12 U.S.C. 1831p-1), and to state savings associations (in aggregate, bank or banks and state savings association or state savings associations).

§ 308.301 Purpose.

Section 39 of the FDI Act requires the FDIC to establish safety and soundness standards. Pursuant to section 39, a bank or savings association may be required to submit a compliance plan if it is not in compliance with a safety and soundness standard established by guideline under section 39(a) or (b). An enforceable order under section 8 of the FDI Act may be issued if, after being notified that it is in violation of a safety and soundness standard established under section 39, the bank or savings association fails to submit an acceptable compliance plan or fails in any material respect to implement an accepted plan. This subpart establishes procedures for requiring submission of a compliance plan and issuing an enforceable order pursuant to section 39.

§ 308.302 Determination and notification of failure to meet a safety and soundness standard and request for compliance plan.

(a) Determination. The FDIC may, based upon an examination, inspection or any other information that becomes available to the FDIC, determine that a bank or state savings association has failed to satisfy the safety and soundness standards set out in part 364 of this chapter and in the Interagency Guidelines Establishing Standards for Safety and Soundness in appendix A and the Interagency Guidelines Establishing Information Security Standards in appendix B to part 364 of this chapter.

(b) Request for compliance plan. If the FDIC determines that a bank or state savings association has failed a safety and soundness standard pursuant to paragraph (a) of this section, the FDIC may request, by letter or through a report of examination, the submission of a compliance plan and the bank or state savings association shall be deemed to have notice of the request three days after mailing of the letter by the FDIC or delivery of the report of examination.

§ 308.303 Filing of safety and soundness compliance plan.

(a) Schedule for filing compliance plan—(1) In general. A bank or state savings association shall file a written safety and soundness compliance plan with the FDIC within 30 days of receiving a request for a compliance plan pursuant to § 308.302(b), unless the FDIC notifies the bank or state savings association in writing that the plan is to be filed within a different period.

(2) Other plans. If a bank or state savings association is obligated to file, or is currently operating under, a capital restoration plan submitted pursuant to section 38 of the FDI Act (12 U.S.C. 1831o), a cease-and-desist order entered into pursuant to section 8 of the FDI Act, a formal or informal agreement, or a response to a report of examination or report of inspection, it may, with the permission of the FDIC, submit a compliance plan under this section as part of that plan, order, agreement, or response, subject to the deadline provided in paragraph (a)(1) of this section.

(b) Contents of plan. The compliance plan shall include a description of the steps the bank or state savings association will take to correct the deficiency and the time within which those steps will be taken.

(c) Review of safety and soundness compliance plans. Within 30 days after receiving a safety and soundness compliance plan under this subpart, the FDIC shall provide written notice to the bank or state savings association of whether the plan has been approved or seek additional information from the bank or state savings association regarding the plan. The FDIC may extend the time within which notice regarding approval of a plan will be provided.

(d) Failure to submit or implement a compliance plan—(1) Supervisory actions. If a bank or state savings association fails to submit an acceptable plan within the time specified by the FDIC or fails in any material respect to implement a compliance plan, then the FDIC shall, by order, require the bank or state savings association to correct the deficiency and may take further actions provided in section 39(e)(2)(B). Pursuant to section 39(e)(3), the FDIC may be required to take certain actions if the bank or state savings association commenced operations or experienced a change in control within the previous 24-month period, or the bank or state savings association experienced extraordinary growth during the previous 18-month period.

(2) Extraordinary growth. For purposes of paragraph (d)(1) of this section, extraordinary growth means an increase in assets of more than 7.5 percent during any quarter within the 18-month period preceding the issuance of a request for submission of a compliance plan, by a bank or state savings association that is not well capitalized for purposes of section 38 of the FDI Act. For purposes of calculating an increase in assets, assets acquired through merger or acquisition approved pursuant to the Bank Merger Act (12 U.S.C. 1828(c)) will be excluded.

(e) Amendment of compliance plan. A bank or state savings association that has filed an approved compliance plan may, after prior written notice to and approval by the FDIC, amend the plan to reflect a change in circumstance. Until such time as a proposed amendment has been approved, the bank or state savings association shall implement the compliance plan as previously approved.

§ 308.304 Issuance of orders to correct deficiencies and to take or refrain from taking other actions.

(a) Notice of intent to issue order—(1) In general. The FDIC shall provide a bank or state savings association prior written notice of the FDIC's intention to issue an order requiring the bank or state savings association to correct a safety and soundness deficiency or to take or refrain from taking other actions pursuant to section 39 of the FDI Act. The bank or state savings association shall have such time to respond to a proposed order as provided by the FDIC under paragraph (c) of this section.

(2) Immediate issuance of final order. If the FDIC finds it necessary in order to carry out the purposes of section 39 of the FDI Act, the FDIC may, without providing the notice prescribed in paragraph (a)(1) of this section, issue an order requiring a bank or state savings association immediately to take actions to correct a safety and soundness deficiency or take or refrain from taking other actions pursuant to section 39. A bank or state savings association that is subject to such an immediately effective order may submit a written appeal of the order to the FDIC. Such an appeal must be received by the FDIC within 14 calendar days of the issuance of the order, unless the FDIC permits a longer period. The FDIC shall consider any such appeal, if filed in a timely matter, within 60 days of receiving the appeal. During such period of review, the order shall remain in effect unless the FDIC, in its sole discretion, stays the effectiveness of the order.

(b) Contents of notice. A notice of intent to issue an order shall include:

(1) A statement of the safety and soundness deficiency or deficiencies that have been identified at the bank or state savings association;

(2) A description of any restrictions, prohibitions, or affirmative actions that the FDIC proposes to impose or require;

(3) The proposed date when such restrictions or prohibitions would be effective or the proposed date for completion of any required action; and

(4) The date by which the bank or state savings association subject to the order may file with the FDIC a written response to the notice.

(c) Response to notice—(1) Time for response. A bank or state savings association may file a written response to a notice of intent to issue an order within the time period set by the FDIC. Such a response must be received by the FDIC within 14 calendar days from the date of the notice unless the FDIC determines that a different period is appropriate in light of the safety and soundness of the bank or state savings association or other relevant circumstances.

(2) Contents of response. The response should include:

(i) An explanation why the action proposed by the FDIC is not an appropriate exercise of discretion under section 39;

(ii) Any recommended modification of the proposed order; and

(iii) Any other relevant information, mitigating circumstances, documentation, or other evidence in support of the position of the bank or state savings association regarding the proposed order.

(d) Agency consideration of response. After considering the response, the FDIC may:

(1) Issue the order as proposed or in modified form;

(2) Determine not to issue the order and so notify the bank or state savings association; or

(3) Seek additional information or clarification of the response from the bank or state savings association, or any other relevant source.

(e) Failure to file response. Failure by a bank or state savings association to file with the FDIC, within the specified time period, a written response to a proposed order shall constitute a waiver of the opportunity to respond and shall constitute consent to the issuance of the order.

(f) Request for modification of rescission of order. Any bank or state savings association that is subject to an order under this subpart may, upon a change in circumstances, request in writing that the FDIC reconsider the terms of the order, and may propose that the order be rescinded or modified. Unless otherwise ordered by the FDIC, the order shall continue in place while such request is pending before the FDIC.

§ 308.305 Enforcement of orders.

(a) Judicial remedies. Whenever a bank or state savings association fails to comply with an order issued under section 39, the FDIC may seek enforcement of the order in the appropriate United States district court pursuant to section 8(i)(1) of the FDI Act.

(b) Failure to comply with order. Pursuant to section 8(i)(2)(A) of the FDI Act, the FDIC may assess a civil money penalty against any bank or state savings association that violates or otherwise fails to comply with any final order issued under section 39 and against any institution-affiliated party who participates in such violation or noncompliance.

(c) Other enforcement action. In addition to the actions described in paragraphs (a) and (b) of this section, the FDIC may seek enforcement of the provisions of section 39 or this part through any other judicial or administrative proceeding authorized by law.

3. Revise part 364 to read as follows: PART 364—STANDARDS FOR SAFETY AND SOUNDNESS Sec. 364.100 Purpose. 364.101 Standards for safety and soundness. Appendix A to Part 364—Interagency Guidelines Establishing Standards for Safety and Soundness Appendix B to Part 364—Interagency Guidelines Establishing Information Security Standards Authority:

12 U.S.C. 1818 and 1819 (Tenth), 1831p-1; 15 U.S.C. 1681b, 1681s, 1681w, 6801(b), 6805(b)(1).

§ 364.100 Purpose.

Section 39 of the Federal Deposit Insurance Act requires the Federal Deposit Insurance Corporation to establish safety and soundness standards. Pursuant to section 39, this part establishes safety and soundness standards by guideline.

§ 364.101 Standards for safety and soundness.

(a) General standards. The Interagency Guidelines Establishing Standards for Safety and Soundness prescribed pursuant to section 39 of the Federal Deposit Insurance Act (12 U.S.C. 1831p-1), as set forth as appendix A to this part, apply to all insured state nonmember banks, to state-licensed insured branches of foreign banks, that are subject to the provisions of section 39 of the Federal Deposit Insurance Act, and to state savings associations (in aggregate, bank or banks and savings association or savings associations).

(b) Interagency Guidelines Establishing Information Security Standards. The Interagency Guidelines Establishing Information Security Standards prescribed pursuant to section 39 of the Federal Deposit Insurance Act (12 U.S.C. 1831p-1), and sections 501 and 505(b) of the Gramm-Leach-Bliley Act (15 U.S.C. 6801, 6805(b)), and with respect to the proper disposal of consumer information requirements pursuant to section 628 of the Fair Credit Reporting Act (15 U.S.C. 1681w), as set forth in appendix B to this part, apply to all insured state nonmember banks, insured state licensed branches of foreign banks, any subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers), and to state savings associations. The interagency regulations and guidelines on identity theft detection, prevention, and mitigation prescribed pursuant to section 114 of the Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. 1681m(e), are set forth in §§ 334.90, 334.91, and Appendix J of part 334.

Appendix A to Part 364—Interagency Guidelines Establishing Standards for Safety and Soundness I. Introduction. A. Preservation of existing authority. B. Definitions. II. Operational and Managerial Standards. A. Internal controls and information systems. B. Internal audit system. C. Loan documentation. D. Credit underwriting. E. Interest rate exposure. F. Asset growth. G. Asset quality. H. Earnings. I. Compensation, fees and benefits. III. Prohibition on Compensation That Constitutes an Unsafe and Unsound Practice. A. Excessive compensation. B. Compensation leading to material financial loss. I. Introduction

i. Section 39 of the Federal Deposit Insurance Act 1 (FDI Act) requires each Federal banking agency (collectively, the agencies) to establish certain safety and soundness standards by regulation or by guidelines for all insured depository institutions. Under section 39, the agencies must establish three types of standards: (1) Operational and managerial standards; (2) compensation standards; and (3) such standards relating to asset quality, earnings, and stock valuation as they determine to be appropriate.

ii. Section 39(a) requires the agencies to establish operational and managerial standards relating to: (1) Internal controls, information systems and internal audit systems, in accordance with section 36 of the FDI Act (12 U.S.C. 1831m); (2) loan documentation; (3) credit underwriting; (4) interest rate exposure; (5) asset growth; and (6) compensation, fees, and benefits, in accordance with subsection (c) of section 39. Section 39(b) requires the agencies to establish standards relating to asset quality, earnings, and stock valuation that the agencies determine to be appropriate.

iii. Section 39(c) requires the agencies to establish standards prohibiting as an unsafe and unsound practice any compensatory arrangement that would provide any executive officer, employee, director, or principal shareholder of the institution with excessive compensation, fees or benefits and any compensatory arrangement that could lead to material financial loss to an institution. Section 39(c) also requires that the agencies establish standards that specify when compensation is excessive.

iv. If an agency determines that an institution fails to meet any standard established by guidelines under subsection (a) or (b) of section 39, the agency may require the institution to submit to the agency an acceptable plan to achieve compliance with the standard. In the event that an institution fails to submit an acceptable plan within the time allowed by the agency or fails in any material respect to implement an accepted plan, the agency must, by order, require the institution to correct the deficiency. The agency may, and in some cases must, take other supervisory actions until the deficiency has been corrected.

v. The agencies have adopted amendments to their rules and regulations to establish deadlines for submission and review of compliance plans.2

vi. The following Guidelines set out the safety and soundness standards that the agencies use to identify and address problems at insured depository institutions before capital becomes impaired. The agencies believe that the standards adopted in these Guidelines serve this end without dictating how institutions must be managed and operated. These standards are designed to identify potential safety and soundness concerns and ensure that action is taken to address those concerns before they pose a risk to the Deposit Insurance Fund.

A. Preservation of Existing Authority

Neither section 39 nor these Guidelines in any way limits the authority of the agencies to address unsafe or unsound practices, violations of law, unsafe or unsound conditions, or other practices. Action under section 39 and these Guidelines may be taken independently of, in conjunction with, or in addition to any other enforcement action available to the agencies. Nothing in these Guidelines limits the authority of the FDIC pursuant to section 38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and Part 325 of Title 12 of the Code of Federal Regulations.

B. Definitions

1. In general. For purposes of these Guidelines, except as modified in the Guidelines or unless the context otherwise requires, the terms used have the same meanings as set forth in sections 3 and 39 of the FDI Act (12 U.S.C. 1813 and 1831p-1).

2. Board of directors, in the case of a state-licensed insured branch of a foreign bank and in the case of a federal branch of a foreign bank, means the managing official in charge of the insured foreign branch.

3. Compensation means all direct and indirect payments or benefits, both cash and non-cash, granted to or for the benefit of any executive officer, employee, director, or principal shareholder, including but not limited to payments or benefits derived from an employment contract, compensation or benefit agreement, fee arrangement, perquisite, stock option plan, postemployment benefit, or other compensatory arrangement.

4. Director shall have the meaning described in 12 CFR 215.2(d).3

5. Executive officer shall have the meaning described in 12 CFR 215.2(e).4

6. Principal shareholder shall have the meaning described in 12 CFR 215.2(m).5

II. Operational and Managerial Standards

A. Internal controls and information systems. An institution should have internal controls and information systems that are appropriate to the size of the institution and the nature, scope and risk of its activities and that provide for:

1. An organizational structure that establishes clear lines of authority and responsibility for monitoring adherence to established policies;

2. Effective risk assessment;

3. Timely and accurate financial, operational and regulatory reports;

4. Adequate procedures to safeguard and manage assets; and

5. Compliance with applicable laws and regulations.

B. Internal audit system. An institution should have an internal audit system that is appropriate to the size of the institution and the nature and scope of its activities and that provides for:

1. Adequate monitoring of the system of internal controls through an internal audit function. For an institution whose size, complexity or scope of operations does not warrant a full scale internal audit function, a system of independent reviews of key internal controls may be used;

2. Independence and objectivity;

3. Qualified persons;

4. Adequate testing and review of information systems;

5. Adequate documentation of tests and findings and any corrective actions;

6. Verification and review of management actions to address material weaknesses; and

7. Review by the institution's audit committee or board of directors of the effectiveness of the internal audit systems.

C. Loan documentation. An institution should establish and maintain loan documentation practices that:

1. Enable the institution to make an informed lending decision and to assess risk, as necessary, on an ongoing basis;

2. Identify the purpose of a loan and the source of repayment, and assess the ability of the borrower to repay the indebtedness in a timely manner;

3. Ensure that any claim against a borrower is legally enforceable;

4. Demonstrate appropriate administration and monitoring of a loan; and

5. Take account of the size and complexity of a loan.

D. Credit underwriting. An institution should establish and maintain prudent credit underwriting practices that:

1. Are commensurate with the types of loans the institution will make and consider the terms and conditions under which they will be made;

2. Consider the nature of the markets in which loans will be made;

3. Provide for consideration, prior to credit commitment, of the borrower's overall financial condition and resources, the financial responsibility of any guarantor, the nature and value of any underlying collateral, and the borrower's character and willingness to repay as agreed;

4. Establish a system of independent, ongoing credit review and appropriate communication to management and to the board of directors;

5. Take adequate account of concentration of credit risk; and

6. Are appropriate to the size of the institution and the nature and scope of its activities.

E. Interest rate exposure. An institution should:

1. Manage interest rate risk in a manner that is appropriate to the size of the institution and the complexity of its assets and liabilities; and

2. Provide for periodic reporting to management and the board of directors regarding interest rate risk with adequate information for management and the board of directors to assess the level of risk.

F. Asset growth. An institution's asset growth should be prudent and consider:

1. The source, volatility and use of the funds that support asset growth;

2. Any increase in credit risk or interest rate risk as a result of growth; and

3. The effect of growth on the institution's capital.

G. Asset quality. An insured depository institution should establish and maintain a system that is commensurate with the institution's size and the nature and scope of its operations to identify problem assets and prevent deterioration in those assets. The institution should:

1. Conduct periodic asset quality reviews to identify problem assets;

2. Estimate the inherent losses in those assets and establish reserves that are sufficient to absorb estimated losses;

3. Compare problem asset totals to capital;

4. Take appropriate corrective action to resolve problem assets;

5. Consider the size and potential risks of material asset concentrations; and

6. Provide periodic asset reports with adequate information for management and the board of directors to assess the level of asset risk.

H. Earnings. An insured depository institution should establish and maintain a system that is commensurate with the institution's size and the nature and scope of its operations to evaluate and monitor earnings and ensure that earnings are sufficient to maintain adequate capital and reserves. The institution should:

1. Compare recent earnings trends relative to equity, assets, or other commonly used benchmarks to the institution's historical results and those of its peers;

2. Evaluate the adequacy of earnings given the size, complexity, and risk profile of the institution's assets and operations;

3. Assess the source, volatility, and sustainability of earnings, including the effect of nonrecurring or extraordinary income or expense;

4. Take steps to ensure that earnings are sufficient to maintain adequate capital and reserves after considering the institution's asset quality and growth rate; and

5. Provide periodic earnings reports with adequate information for management and the board of directors to assess earnings performance.

I. Compensation, fees and benefits. An institution should maintain safeguards to prevent the payment of compensation, fees, and benefits that are excessive or that could lead to material financial loss to the institution.

III. Prohibition on Compensation That Constitutes an Unsafe and Unsound Practice A. Excessive Compensation

Excessive compensation is prohibited as an unsafe and unsound practice. Compensation shall be considered excessive when amounts paid are unreasonable or disproportionate to the services performed by an executive officer, employee, director, or principal shareholder, considering the following:

1. The combined value of all cash and noncash benefits provided to the individual;

2. The compensation history of the individual and other individuals with comparable expertise at the institution;

3. The financial condition of the institution;

4. Comparable compensation practices at comparable institutions, based upon such factors as asset size, geographic location, and the complexity of the loan portfolio or other assets;

5. For postemployment benefits, the projected total cost and benefit to the institution;

6. Any connection between the individual and any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the institution; and

7. Any other factors the agencies determine to be relevant.

B. Compensation Leading to Material Financial Loss

Compensation that could lead to material financial loss to an institution is prohibited as an unsafe and unsound practice.

1 Section 39 of the Federal Deposit Insurance Act (12 U.S.C. 1831p-1) was added by section 132 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA), Pub. L. 102-242, 105 Stat. 2236 (1991), and amended by section 956 of the Housing and Community Development Act of 1992, Pub. L. 102-550, 106 Stat. 3895 (1992) and section 318 of the Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2160 (1994).

2 For the Office of the Comptroller of the Currency, these regulations appear at 12 CFR Part 30; for the Board of Governors of the Federal Reserve System, these regulations appear at 12 CFR Part 263; and for the Federal Deposit Insurance Corporation, these regulations appear at 12 CFR Part 308, subpart R.

3 In applying these definitions for savings associations, pursuant to 12 U.S.C. 1464, savings associations shall use the terms “savings association” and “insured savings association” in place of the terms “member bank” and “insured bank”.

4 See footnote 3 in section I.B.4. of this appendix.

5 See footnote 3 in section I.B.4. of this appendix.

Appendix B to Part 364—Interagency Guidelines Establishing Information Security Standards Table of Contents I. Introduction A. Scope B. Preservation of Existing Authority C. Definitions II. Standards for Safeguarding Customer Information A. Information Security Program B. Objectives III. Development and Implementation of Customer Information Security Program A. Involve the Board of Directors B. Assess Risk C. Manage and Control Risk D. Oversee Service Provider Arrangements E. Adjust the Program F. Report to the Board G. Implement the Standards I. Introduction

The Interagency Guidelines Establishing Information Security Standards (Guidelines) set forth standards pursuant to section 39 of the Federal Deposit Insurance Act, 12 U.S.C. 1831p-1, and sections 501 and 505(b), 15 U.S.C. 6801 and 6805(b), of the Gramm-Leach-Bliley Act. These Guidelines address standards for developing and implementing administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of customer information. These Guidelines also address standards with respect to the proper disposal of consumer information pursuant to sections 621 and 628 of the Fair Credit Reporting Act (15 U.S.C. 1681s and 1681w).

A. Scope. The Guidelines apply to customer information maintained by or on behalf of, and to the disposal of consumer information by or on the behalf of, entities over which the Federal Deposit Insurance Corporation (FDIC) has authority. Such entities, referred to as “insured depository institution” or “institution” are banks insured by the FDIC (other than members of the Federal Reserve System), state savings associations insured by the FDIC, insured state branches of foreign banks, and any subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers).

B. Preservation of Existing Authority. Neither section 39 nor these Guidelines in any way limit the authority of the FDIC to address unsafe or unsound practices, violations of law, unsafe or unsound conditions, or other practices. The FDIC may take action under section 39 and these Guidelines independently of, in conjunction with, or in addition to, any other enforcement action available to the FDIC.

C. Definitions. 1. Except as modified in the Guidelines, or unless the context otherwise requires, the terms used in these Guidelines have the same meanings as set forth in sections 3 and 39 of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).

2. For purposes of the Guidelines, the following definitions apply:

a. Board of directors, in the case of a branch or agency of a foreign bank, means the managing official in charge of the branch or agency.

b. Consumer Information means any record about an individual, whether in paper, electronic, or other form, that is a consumer report or is derived from a consumer report and that is maintained or otherwise possessed by or on behalf of the institution for a business purpose. Consumer information also means a compilation of such records. The term does not include any record that does not personally identify an individual.

i. Examples: (1) Consumer information includes:

(A) A consumer report that an institution obtains;

(B) information from a consumer report that the institution obtains from its affiliate after the consumer has been given a notice and has elected not to opt out of that sharing;

(C) information from a consumer report that the institution obtains about an individual who applies for but does not receive a loan, including any loan sought by an individual for a business purpose;

(D) information from a consumer report that the institution obtains about an individual who guarantees a loan (including a loan to a business entity); or

(E) information from a consumer report that the institution obtains about an employee or prospective employee.

(2) Consumer information does not include:

(A) aggregate information, such as the mean score, derived from a group of consumer reports; or

(B) blind data, such as payment history on accounts that are not personally identifiable, that may be used for developing credit scoring models or for other purposes.

c. Consumer report has the same meaning as set forth in the Fair Credit Reporting Act, 15 U.S.C. 1681a(d).

d. Customer means any customer of the institution as defined in § 332.3(h) of this chapter.

e. Customer information means any record containing nonpublic personal information, as defined in § 332.3(n) of this chapter, about a customer, whether in paper, electronic, or other form, that is maintained by or on behalf of the institution.

f. Customer information systems means any methods used to access, collect, store, use, transmit, protect, or dispose of customer information.

g. Service provider means any person or entity that maintains, processes, or otherwise is permitted access to customer information or consumer information through its provision of services directly to the institution.

II. Standards for Information Security

A. Information Security Program. Each insured depository institution shall implement a comprehensive written information security program that includes administrative, technical, and physical safeguards appropriate to the size and complexity of the institution and the nature and scope of its activities. While all parts of the institution are not required to implement a uniform set of policies, all elements of the information security program must be coordinated.

B. Objectives. An institution's information security program shall be designed to:

1. Ensure the security and confidentiality of customer information;

2. Protect against any anticipated threats or hazards to the security or integrity of such information;

3. Protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer; and

4 Ensure the proper disposal of customer information and consumer information.

III. Development and Implementation of Information Security Program

A. Involve the Board of Directors. The board of directors or an appropriate committee of the board of each insured depository institution shall:

1. Approve the institution's written information security program; and

2. Oversee the development, implementation, and maintenance of the institution's information security program, including assigning specific responsibility for its implementation and reviewing reports from management.

B. Assess Risk.

Each institution shall:

1. Identify reasonably foreseeable internal and external threats that could result in unauthorized disclosure, misuse, alteration, or destruction of customer information or customer information systems.

2. Assess the likelihood and potential damage of these threats, taking into consideration the sensitivity of customer information.

3. Assess the sufficiency of policies, procedures, customer information systems, and other arrangements in place to control risks.

C. Manage and Control Risk. Each institution shall:

1. Design its information security program to control the identified risks, commensurate with the sensitivity of the information as well as the complexity and scope of the institution's activities. Each institution must consider whether the following security measures are appropriate for the institution and, if so, adopt those measures the institution concludes are appropriate:

a. Access controls on customer information systems, including controls to authenticate and permit access only to authorized individuals and controls to prevent employees from providing customer information to unauthorized individuals who may seek to obtain this information through fraudulent means.

b. Access restrictions at physical locations containing customer information, such as buildings, computer facilities, and records storage facilities to permit access only to authorized individuals;

c. Encryption of electronic customer information, including while in transit or in storage on networks or systems to which unauthorized individuals may have access;

d. Procedures designed to ensure that customer information system modifications are consistent with the institution's information security program;

e. Dual control procedures, segregation of duties, and employee background checks for employees with responsibilities for or access to customer information;

f. Monitoring systems and procedures to detect actual and attempted attacks on or intrusions into customer information systems;

g. Response programs that specify actions to be taken when the institution suspects or detects that unauthorized individuals have gained access to customer information systems, including appropriate reports to regulatory and law enforcement agencies; and

h. Measures to protect against destruction, loss, or damage of customer information due to potential environmental hazards, such as fire and water damage or technological failures.

2. Train staff to implement the institution's information security program.

3. Regularly test the key controls, systems and procedures of the information security program. The frequency and nature of such tests should be determined by the institution's risk assessment. Tests should be conducted or reviewed by independent third parties or staff independent of those that develop or maintain the security programs.

4. Develop, implement, and maintain, as part of its information security program, appropriate measures to properly dispose of customer information and consumer information in accordance with each of the requirements of this paragraph III.

D. Oversee Service Provider Arrangements. Each institution shall:

1. Exercise appropriate due diligence in selecting its service providers;

2. Require its service providers by contract to implement appropriate measures designed to meet the objectives of these Guidelines; and

3. Where indicated by the institution's risk assessment, monitor its service providers to confirm that they have satisfied their obligations as required by paragraph D.2. As part of this monitoring, an institution should review audits, summaries of test results, or other equivalent evaluations of its service providers.

E. Adjust the Program. Each institution shall monitor, evaluate, and adjust, as appropriate, the information security program in light of any relevant changes in technology, the sensitivity of its customer information, internal or external threats to information, and the institution's own changing business arrangements, such as mergers and acquisitions, alliances and joint ventures, outsourcing arrangements, and changes to customer information systems.

F. Report to the Board. Each institution shall report to its board or an appropriate committee of the board at least annually. This report should describe the overall status of the information security program and the institution's compliance with these Guidelines. The report, which will vary depending upon the complexity of each institution's program should discuss material matters related to its program, addressing issues such as: Risk assessment; risk management and control decisions; service provider arrangements; results of testing; security breaches or violations, and management's responses; and recommendations for changes in the information security program.

G. Implement the Standards. 1. Effective date. Each institution must implement an information security program pursuant to these Guidelines by July 1, 2001.

2. Two-year grandfathering of agreements with service providers. Until July 1, 2003, a contract that an institution has entered into with a service provider to perform services for it or functions on its behalf, satisfies the provisions of paragraph III.D., even if the contract does not include a requirement that the servicer maintain the security and confidentiality of customer information as long as the institution entered into the contract on or before March 5, 2001.

3. Effective date for measures relating to the disposal of consumer information. Each institution must satisfy these Guidelines with respect to the proper disposal of consumer information by July 1, 2005.

4. Exception for existing agreements with service providers relating to the disposal of consumer information. Notwithstanding the requirement in paragraph III.G.3., an institution's contracts with its service providers that have access to consumer information and that may dispose of consumer information, entered into before July 1, 2005, must comply with the provisions of the Guidelines relating to the proper disposal of consumer information by July 1, 2006.

Supplement A to Appendix B to Part 364 Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice I. Background

This Guidance 1 interprets section 501(b) of the Gramm-Leach-Bliley Act (GLBA) and the Interagency Guidelines Establishing Information Security Standards (the Security Guidelines) 2 and describes response programs, including customer notification procedures, that a financial institution should develop and implement to address unauthorized access to or use of customer information that could result in substantial harm or inconvenience to a customer. The scope of, and definitions of terms used in, this Guidance are identical to those of the Security Guidelines. For example, the term “customer information” is the same term used in the Security Guidelines, and means any record containing nonpublic personal information about a customer, whether in paper, electronic, or other form, maintained by or on behalf of the institution.

A. Interagency Security Guidelines

Section 501(b) of the GLBA required the Agencies to establish appropriate standards for financial institutions subject to their jurisdiction that include administrative, technical, and physical safeguards, to protect the security and confidentiality of customer information. Accordingly, the Agencies issued Security Guidelines requiring every financial institution to have an information security program designed to:

1. Ensure the security and confidentiality of customer information;

2. Protect against any anticipated threats or hazards to the security or integrity of such information; and

3. Protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer.

B. Risk Assessment and Controls

1. The Security Guidelines direct every financial institution to assess the following risks, among others, when developing its information security program:

a. Reasonably foreseeable internal and external threats that could result in unauthorized disclosure, misuse, alteration, or destruction of customer information or customer information systems;

b. The likelihood and potential damage of threats, taking into consideration the sensitivity of customer information; and

c. The sufficiency of policies, procedures, customer information systems, and other arrangements in place to control risks.3

2. Following the assessment of these risks, the Security Guidelines require a financial institution to design a program to address the identified risks. The particular security measures an institution should adopt will depend upon the risks presented by the complexity and scope of its business. At a minimum, the financial institution is required to consider the specific security measures enumerated in the Security Guidelines,4 and adopt those that are appropriate for the institution, including:

a. Access controls on customer information systems, including controls to authenticate and permit access only to authorized individuals and controls to prevent employees from providing customer information to unauthorized individuals who may seek to obtain this information through fraudulent means;

b. Background checks for employees with responsibilities for access to customer information; and

c. Response programs that specify actions to be taken when the financial institution suspects or detects that unauthorized individuals have gained access to customer information systems, including appropriate reports to regulatory and law enforcement agencies.5

C. Service Providers

The Security Guidelines direct every financial institution to require its service providers by contract to implement appropriate measures designed to protect against unauthorized access to or use of customer information that could result in substantial harm or inconvenience to any customers.6

II. Response Program

Millions of Americans, throughout the country, have been victims of identity theft.7 Identity thieves misuse personal information they obtain from a number of sources, including financial institutions, to perpetrate identity theft. Therefore, financial institutions should take preventative measures to safeguard customer information against attempts to gain unauthorized access to the information. For example, financial institutions should place access controls on customer information systems and conduct background checks for employees who are authorized to access customer information.8 However, every financial institution should also develop and implement a risk-based response program to address incidents of unauthorized access to customer information in customer information systems 9 that occur nonetheless. A response program should be a key part of an institution's information security program.10 The program should be appropriate to the size and complexity of the institution and the nature and scope of its activities.

In addition, each institution should be able to address incidents of unauthorized access to customer information in customer information systems maintained by its domestic and foreign service providers. Therefore, consistent with the obligations in the Guidelines that relate to these arrangements, and with existing guidance on this topic issued by the Agencies,11 an institution's contract with its service provider should require the service provider to take appropriate actions to address incidents of unauthorized access to the financial institution's customer information, including notification to the institution as soon as possible of any such incident, to enable the institution to expeditiously implement its response program.

A. Components of a Response Program

1. At a minimum, an institution's response program should contain procedures for the following:

a. Assessing the nature and scope of an incident, and identifying what customer information systems and types of customer information have been accessed or misused;

b. Notifying its primary Federal regulator as soon as possible when the institution becomes aware of an incident involving unauthorized access to or use of sensitive customer information, as defined below;

c. Consistent with the Agencies' Suspicious Activity Report (“SAR”) regulations,12 notifying appropriate law enforcement authorities, in addition to filing a timely SAR in situations involving Federal criminal violations requiring immediate attention, such as when a reportable violation is ongoing;

d. Taking appropriate steps to contain and control the incident to prevent further unauthorized access to or use of customer information, for example, by monitoring, freezing, or closing affected accounts, while preserving records and other evidence; 13 and

e. Notifying customers when warranted.

2. Where an incident of unauthorized access to customer information involves customer information systems maintained by an institution's service providers, it is the responsibility of the financial institution to notify the institution's customers and regulator. However, an institution may authorize or contract with its service provider to notify the institutions' customers or regulator on its behalf.

III. Customer Notice

Financial institutions have an affirmative duty to protect their customers' information against unauthorized access or use. Notifying customers of a security incident involving the unauthorized access or use of the customer's information in accordance with the standard set forth below is a key part of that duty. Timely notification of customers is important to manage an institution's reputation risk. Effective notice also may reduce an institution's legal risk, assist in maintaining good customer relations, and enable the institution's customers to take steps to protect themselves against the consequences of identity theft. When customer notification is warranted, an institution may not forgo notifying its customers of an incident because the institution believes that it may be potentially embarrassed or inconvenienced by doing so.

A. Standard for Providing Notice

When a financial institution becomes aware of an incident of unauthorized access to sensitive customer information, the institution should conduct a reasonable investigation to promptly determine the likelihood that the information has been or will be misused. If the institution determines that misuse of its information about a customer has occurred or is reasonably possible, it should notify the affected customer as soon as possible. Customer notice may be delayed if an appropriate law enforcement agency determines that notification will interfere with a criminal investigation and provides the institution with a written request for the delay. However, the institution should notify its customers as soon as notification will no longer interfere with the investigation.

1. Sensitive Customer Information

Under the Guidelines, an institution must protect against unauthorized access to or use of customer information that could result in substantial harm or inconvenience to any customer. Substantial harm or inconvenience is most likely to result from improper access to sensitive customer information because this type of information is most likely to be misused, as in the commission of identity theft. For purposes of this Guidance, sensitive customer information means a customer's name, address, or telephone number, in conjunction with the customer's social security number, driver's license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the customer's account. Sensitive customer information also includes any combination of components of customer information that would allow someone to log onto or access the customer's account, such as user name or password or password and account number.

2. Affected Customers

If a financial institution, based upon its investigation, can determine from its logs or other data precisely which customers' information has been improperly accessed, it may limit notification to those customers with regard to whom the institution determines that misuse of their information has occurred or is reasonably possible. However, there may be situations where the institution determines that a group of files has been accessed improperly, but is unable to identify which specific customers' information has been accessed. If the circumstances of the unauthorized access lead the institution to determine that misuse of the information is reasonably possible, it should notify all customers in the group.

B. Content of Customer Notice

1. Customer notice should be given in a clear and conspicuous manner. The notice should describe the incident in general terms and the type of customer information that was the subject of unauthorized access or use. It also should generally describe what the institution has done to protect the customers' information from further unauthorized access. In addition, it should include a telephone number that customers can call for further information and assistance.14 The notice also should remind customers of the need to remain vigilant over the next twelve to twenty-four months, and to promptly report incidents of suspected identify theft to the institution. The notice should include the following additional items, when appropriate:

a. A recommendation that the customer review account statements and immediately report any suspicious activity to the institution;

b. A description of fraud alerts and an explanation of how the customer may place a fraud alert in the customer's consumer reports to put the customer's creditors on notice that the customer may be a victim of fraud;

c. A recommendation that the customer periodically obtain credit reports from each nationwide credit reporting agency and have information relating to fraudulent transactions deleted;

d. An explanation of how the customer may obtain a credit report free of charge; and

e. Information about the availability of the FTC's online guidance regarding steps a consumer can take to protect against identity theft. The notice should encourage the customer to report any incidents of identity theft to the FTC, and should provide the FTC's Web site address and toll-free telephone number that customers may use to obtain the identity theft guidance and report suspected incidents of identity theft.15

2. The Agencies encourage financial institutions to notify the nationwide consumer reporting agencies prior to sending notices to a large number of customers that include contact information for the reporting agencies.

C. Delivery of Customer Notice

Customer notice should be delivered in any manner designed to ensure that a customer can reasonably be expected to receive it. For example, the institution may choose to contact all customers affected by telephone or by mail, or by electronic mail for those customers for whom it has a valid email address and who have agreed to receive communications electronically.

1 This Guidance was jointly issued by the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), and the Office of Thrift Supervision (OTS). Pursuant to 12 U.S.C. 5412, the OTS is no longer a party to this Guidance.

2 12 CFR part 30, app. B (OCC); 12 CFR part 208, app. D-2 and part 225, app. F (Board); and 12 CFR part 364, app. B (FDIC). The “Interagency Guidelines Establishing Information Security Standards” were formerly known as “The Interagency Guidelines Establishing Standards for Safeguarding Customer Information.”

3See Security Guidelines, III.B.

4See Security Guidelines, III.C.

5See Security Guidelines, III.C.

6See Security Guidelines, II.B, and III.D. Further, the Agencies note that, in addition to contractual obligations to a financial institution, a service provider may be required to implement its own comprehensive information security program in accordance with the Safeguards Rule promulgated by the Federal Trade Commission (FTC), 12 CFR part 314.

7 The FTC estimates that nearly 10 million Americans discovered they were victims of some form of identity theft in 2002. See The Federal Trade Commission. Identity Theft Survey Report (September 2003), available at http://www.ftc.gov/os/2003/09/synovatereport.pdf.

8 Institutions should also conduct background checks of employees to ensure that the institution does not violate 12 U.S.C. 1829, which prohibits an institution from hiring an individual convicted of certain criminal offenses or who is subject to a prohibition order under 12 U.S.C. 1818(e)(6).

9 Under the Guidelines, an institution's customer information systems consist of all of the methods used to access, collect, store, use, transmit, protect, or dispose of customer information, including the systems maintained by its service providers. See Security Guidelines, I.C.2.d.

10See FFIEC Information Technology Examination Handbook, Information Security Booklet, Dec. 2002 available at http://ithandbook.ffiec.gov/it-booklets/information-security.aspx. Federal Reserve SR 97-32, Sound Practice Guidance for Information Security for Networks, Dec. 4, 1997; OCC Bulletin 2000-14, “Infrastructure Threats—Intrusion Risks” (May 15, 2000), for additional guidance on preventing, detecting, and responding to intrusions into financial institutions computer systems.

11See Federal Reserve SR Ltr. 13-19, Guidance on Managing Outsourcing Risk, Dec. 5, 2013; OCC Bulletin 2013-29, “Third-Party Relationships—Risk Management Guidance,” Oct. 30, 2013; and FDIC FIL 44-08, Guidance for Managing Third Party Risk, June 6, 2008 and FIL 68-99, Risk Assessment Tools and Practices for Information System Security, July 7, 1999.

12 An institution's obligations to file a SAR is set out in the Agencies' SAR regulations and Agency guidance. See, for example, 12 CFR 21.11 (national banks, Federal branches and agencies); 12 CFR 163.180 (Federal savings associations); 12 CFR 208.62 (State member banks); 12 CFR 211.5(k) (Edge and agreement corporations); 12 CFR 211.24(f) (uninsured State branches and agencies of foreign banks); 12 CFR 225.4(f) (bank holding companies and their nonbank subsidiaries); and 12 CFR part 353 (FDIC-supervised institutions). National banks must file SARs in connection with computer intrusions and other computer crimes. See OCC Bulletin 2000-14, “Infrastructure Threats—Intrusion Risks” (May 15, 2000); Advisory Letter 97-9, “Reporting Computer Related Crimes” (November 19, 1997) (general guidance still applicable though instructions for new SAR form published in 65 FR 1229, 1230 (January 7, 2000)). See also Federal Reserve SR 01-11, Identity Theft and Pretext Calling, Apr. 26, 2001.

13See FFIEC Information Technology Examination Handbook, Information Security Booklet, Dec. 2002, pp. 68-74.

14 The institution should, therefore, ensure that it has reasonable policies and procedures in place, including trained personnel, to respond appropriately to customer inquiries and requests for assistance.

15 Currently, the FTC Web site for the ID Theft brochure and the FTC Hotline phone number are http://www.consumer.gov/idtheft and 1-877-IDTHEFT. The institution may also refer customers to any materials developed pursuant to section 151(b) of the FACT Act (educational materials developed by the FTC to teach the public how to prevent identity theft).

PART 391—FORMER OFFICE OF THRIFT SUPERVISION REGULATIONS 4. The authority citation for part 391 is revised to read as follows: Authority:

12 U.S.C. 1819 (Tenth).

Subpart A also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; 1881-1884; 15 U.S.C. 1681w; 15 U.S.C. 6801; 6805.

Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w.

Subpart D also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 42 U.S.C. 4012a; 4104a; 4104b; 4106; 4128.

Subpart E also issued under 12 U.S.C. 1467a; 1468; 1817; 1831i.

Subpart B—[Removed and Reserved] 5. Remove and reserve subpart B consisting of §§ 391.10 through 391.14, and Appendices A and B. Dated at Washington, DC, this 22nd day of October 2015.

By order of the Board of Directors.

Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
[FR Doc. 2015-27293 Filed 10-27-15; 8:45 am] BILLING CODE 6714-01-P
FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 334 and 391 RIN 3064-AE29 Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments; Amendment to the “Creditor” Definition in Identity Theft Red Flags Rule; Removal of FDIC Regulations Regarding Fair Credit Reporting Transferred to the Consumer Financial Protection Bureau AGENCY:

Federal Deposit Insurance Corporation.

ACTION:

Final rule.

SUMMARY:

The Federal Deposit Insurance Corporation (FDIC) is adopting a final rule (Final Rule) to make several amendments to its regulations covering “Fair Credit Reporting.” The amendments conform FDIC Fair Credit Reporting regulations to the Dodd-Frank Act by consolidating the regulations for all institutions for which the FDIC is the appropriate Federal banking agency into a single part. The amendments also address the role of the Consumer Financial Protection Bureau in promulgating rules relating to Fair Credit Reporting.

DATES:

The Final Rule is effective November 27, 2015.

FOR FURTHER INFORMATION CONTACT:

Sandra Barker, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-3615 or [email protected]; Jeffrey Kopchik, Senior Policy Analyst, Division of Risk Management Supervision, (703) 254-0459 or [email protected]; Richard M. Schwartz, Counsel, Legal Division, (202) 898-7424 or [email protected]

SUPPLEMENTARY INFORMATION:

I. Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments to 12 CFR Part 334 of FDIC's Rules and Regulations A. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) 1 provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency (OCC), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (FRB), as to savings and loan holding companies.2 Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provided the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. The section provided that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

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

2 Section 312 of the Dodd-Frank Act, codified at 12 U.S.C. 5412.

Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be Enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.3

3 76 FR 39247 (July 6, 2011).

Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “appropriate Federal banking agency” contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations whose deposits are insured by the FDIC (State savings associations) to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify and rescind regulations involving such associations, as well as for State nonmember banks and insured branches of foreign banks.

As noted, on June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.4 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

4 76 FR 47652 (Aug. 5, 2011).

One of the OTS rules transferred to the FDIC governed OTS oversight of the Fair Credit Reporting regulations, which implemented the Fair Credit Reporting Act (FCRA),5 in the context of State savings associations. The OTS rule, formerly found at 12 CFR part 571, was transferred to the FDIC 6 and was moved to the FDIC's rules at part 391, subpart C, entitled “Fair Credit Reporting.” Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 334, also entitled “Fair Credit Reporting,” a rule governing FDIC regulation with respect to IDIs for which the FDIC has been designated the appropriate Federal banking agency. After careful review and comparison of part 391, subpart C and part 334, the FDIC rescinds part 391, subpart C, because, as discussed below, it is substantively redundant to existing part 334 and simultaneously makes technical conforming edits to our existing rule.

5 15 U.S.C. 1681a, et seq.

6 The Dodd-Frank Act transferred the rule-writing authority of several parts of the “Fair Credit Reporting” regulations contained in parts 334 and 571, as well as the regulations of the OCC, FRB, and National Credit Union Administration (“NCUA”), to the newly created CFPB. See sections 1061 and 1088, codified at 12 U.S.C. 5581, 15 U.S.C. 1681 et seq. When the OTS regulations for state savings associations were transferred to part 391, only those portions of the regulation that were retained by the FDIC were included.

B. FDIC's Existing 12 CFR Section 334.2 and Former OTS's 12 CFR Section 571.2 (transferred to FDIC's Part 391, Subpart C, as 12 CFR Section 391.20)

On November 22, 2005, the FDIC, OTS, OCC, FRB and NCUA (“the Agencies”) jointly published rules in the Federal Register7 to implement section 411 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act),8 which amended section 604 of the FCRA.9 Section 411 of the FACT Act generally limited the ability of creditors to obtain and use medical information in connection with credit eligibility determinations and the ability of consumer reporting agencies to disclose medical information, as well as restricting the sharing of medical information and other medically related information with affiliates.10 That section required the Agencies to issue regulations on several aspects related to the medical privacy amendment.

7 70 FR 70664 (Nov. 22, 2005).

8 Public Law 108-159, 117 Stat. 1952, 1999-2002 (2003).

9 15 U.S.C. 1681b.

10 70 FR at 70664.

Although Dodd-Frank Act transferred the 2005 medical privacy regulations to the CFPB, as discussed below, the Agencies issued a regulation in the “General Provisions” portion of the Fair Credit Reporting regulations that remains in effect in the Agencies' regulations today.

That regulation related to “examples” issued in any regulation in the Fair Credit Reporting part. The OTS regulation, stated: “The examples in this part are not exclusive. Compliance with an example, to the extent applicable, constitutes compliance with this part. Examples in a paragraph illustrate only the issue described in the paragraph and do not illustrate any other issue that may arise in this part.” 11 The concurrently issued FDIC regulation contains identical language.12

11 12 CFR 571.2.

12 12 CFR 334.2.

The OTS regulation issued at § 391.20 was amended slightly because it was placed in a subpart of part 391: the word “part” was replace by “subpart.” Nevertheless, the portion of the OTS regulation that applied to State savings associations and their subsidiaries, originally codified at 12 CFR part 571 and subsequently transferred to FDIC's part 391, subpart C, is substantively similar to the current FDIC regulations codified at 12 CFR part 334. Therefore, to eliminate redundancy and streamline its regulations, the FDIC rescinds and removes § 391.20.

C. FDIC's Existing 12 CFR Section 334.83 and Former OTS's 12 CFR Section 571.83 (transferred to FDIC's Part 391, Subpart C, as 12 CFR Section 391.21)

Section 216 of the FACT Act added a new section 628 to the FCRA that, in general was designed to protect a consumer against the risks associated with the unauthorized access to information about a consumer contained in a consumer report, such as fraud and related crimes including identity theft.13 Specifically, section 216 required each of the Agencies, including the Federal Trade Commission (FTC), to adopt a regulation with respect to the entities subject to its enforcement authority “requiring any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, derived from a consumer report for a business purpose to properly dispose of any such information or compilation.” 14 The FDIC, OCC, FRB and OTS jointly published their rules in the Federal Register on December 28, 2004.15 The FDIC and OTS regulations were identical.16 Neither regulation contained a scope provision, because each regulation referred to the respective agency's version of the Interagency Guidelines Establishing Information Security Standards, which itself contained a scope provision.17

13 Public Law 108-159, 117 Stat. at 1985-86; 15 U.S.C. 1681w.

14Id.

15 69 FR 77610 (Dec. 28, 2004).

16 12 CFR 334.83, 571.83 (2004).

17Id. (both regulations stated, in relevant part, “You must properly dispose of any consumer information that you maintain or otherwise possess in accordance with the Interagency Guidelines Establishing Information Security Standards . . . to the extent the Guidelines are applicable to you.”). Both the FDIC's and the OTS's Interagency Guidelines were placed in the Safety and Soundness regulations, parts 364 and 570, respectively.

In 2007, the Agencies jointly issued rules pursuant to section 114 of the FACT Act, which dealt with identity theft “red flag” rules and rules on the duties of credit card issuers to validate notifications of changes of address under certain circumstances,18 as discussed in more detail below. Although those regulations were nearly identical from agency to agency, the OTS unilaterally amended its disposal regulation, as part of that rulemaking, to include a scope provision.19 The OTS explained that that amendment was nonsubstantive and technical in nature, caused by the placement of the address discrepancy regulation in the same subpart as the disposal regulation.20 No other Agency amended its disposal regulation.

18 72 FR 63718 (Nov. 9, 2007). That rulemaking also included rules issued pursuant to section 315 of the FACT Act, which required the Agencies to issue joint regulations that provide guidance regarding reasonable policies and procedures that a user of a consumer report should employ when the user receives a notice of an address discrepancy. The rule-writing authority for that rule was given to the CFPB in the Dodd-Frank Act.

19See 12 CFR 571.83(a) (2007).

20 72 FR at 63739.

After careful comparison of the FDIC's disposal regulation with the transferred OTS rule in part 391, subpart C, the FDIC has concluded that, with the exception of the scope provision, which now includes “State savings associations whose deposits are insured by the Federal Deposit Insurance Corporation,” 21 the transferred OTS rule is substantively redundant. Therefore, based on the foregoing, the FDIC rescinds and removes from the Code of Federal Regulations the rule located at part 391, subpart C and makes minor conforming changes to incorporate State savings associations.

21 The scope provision of the original 2007 amendment covered all savings associations with deposits insured by the FDIC and Federal savings associations' operating subsidiaries. When the OTS disposal regulation was transferred to section 391.21, it was amended to state that the scope provision applies to “State savings associations whose deposits are insured by the Federal Deposit Insurance Corporation,” consistent with the authority given to the FDIC in the Dodd-Frank Act.

There were several ways to deal with this technical difference between the FDIC and the OTS disposal regulations, including adding a scope provision to the FDIC's disposal regulation at § 334.83, an idea that was not proposed back in 2007. Instead, because of the direct reference in the disposal regulation to the Interagency Guidelines Establishing Information Security Standards, the FDIC, through a separate final rule relating to the FDIC's Safety and Soundness regulations, 12 CFR part 364, to be issued shortly, is adopting a change in the scope provision of the FDIC's version to cover State savings associations.

As a backstop for this and any future fair credit regulations, the FDIC is also making a change to § 334.1(b), the general scope provision of the FDIC's Fair Credit Reporting regulations, to cover State savings associations. The FDIC is also adding a definition of “State savings association” to § 334.3. That definition would have the same meaning as in section 3(b)(3) of the FDI Act, 12 U.S.C. 1813(b)(3).22

22 “The term `State savings association' means— (A) any building and loan association, savings and loan association, or homestead association; or (B) any cooperative bank (other than a cooperative bank which is a State bank as defined in subsection (a)(2) of this section), which is organized and operating according to the laws of the State (as defined in subsection (a)(3) of this section) in which it is chartered or organized.” 12 U.S.C. 1813(b)(3).

D. FDIC's Existing 12 CFR Sections 334.90 and 334.91 and Part 334, Appendix J, and Former OTS's 12 CFR Sections 571.82 and 571.90 and Part 571, Appendix J (transferred to FDIC's Part 391, Subpart C, as 12 CFR Sections 391.22 and 391.23 and Part 391, Subpart C, Appendix)

As discussed above (and in some detail below), the Agencies, in 2007, jointly issued rules pursuant to section 114 of the FACT Act, which dealt with identity theft “red flag” rules and rules on the duties of credit card issuers to validate notifications of changes of address under certain circumstances.23 In addition to the rules required in section 114, the Agencies also jointly issued Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation.

23 72 FR 63718 (Nov. 9, 2007).

The FDIC's “red flag” rule, styled as “duties regarding the detection, prevention, and mitigation of identity theft,” was issued as § 334.90. The concurrently issued OTS rule was issued as § 571.90. That rule was later transferred to the FDIC rules as § 391.22. Apart from their scope provisions, the FDIC and the OTS “red flag” rules are substantively identical. As with the disposal rule, the scope of the transferred OTS rule covers “a State savings association whose deposits are insured by the Federal Deposit Insurance Corporation.” 24

24 12 CFR 391.22(a).

The FDIC's “duties of card issuers regarding changes of address” regulation was issued as § 334.91. The concurrently issued OTS rule was issued as § 571.91. That rule was later transferred to the FDIC rules as § 391.23. As with the “red flag” rules, apart from their scope provisions, the FDIC and OTS change of address rules are substantively identical. The OTS rule covers “an issuer of a debit or credit card (card issuer) that is a State savings association whose deposits are insured by the Federal Deposit Insurance Corporation.” 25

25 12 CFR 391.23(a).

Finally, the FDIC's Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation was issued as part 334, appendix J. The concurrently issued OTS guidelines were issued as part 571, appendix J. Those guidelines were later transferred to the FDIC rules as part 391, subpart C, appendix. The FDIC and the OTS guidelines are substantively identical.

After careful comparison of the FDIC's rules and guidelines with the transferred OTS rules and guidelines in part 391, subpart C, the FDIC has concluded that, with the exception of the scope provisions, as set out above, the transferred OTS rules and guidelines are substantively redundant. Therefore, based on the foregoing, the FDIC rescinds and removes from the Code of Federal Regulations the rules located at §§ 391.22 and 391.23 and guidelines located at part 391, subpart C, appendix, and makes minor conforming changes in §§ 334.90 and 334.91 to incorporate State savings associations.

II. Amendments to Fair Credit Red Flag Identity Theft Rule and Guidelines

As discussed above, on November 9, 2007, the FDIC, OCC, FRB, NCUA, OTS, and FTC published final rules and guidelines 26 to implement the identity theft red flags provisions of section 114 of the FACT Act.27 In addition to these agencies, the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) obtained rulemaking authority for these regulations under section 615 of the FCRA, as amended by section 1088 of the Dodd-Frank Act.

26 72 FR 63718 (Nov. 9, 2007).

27 15 U.S.C. 1681m(e).

Section 615 directed the covered Agencies to issue joint regulations and guidelines requiring “financial institutions” and “creditors” to develop and implement a written identity theft program to identify, detect, and respond to possible risks of identity theft relevant to them.

The 2007 final interagency rule (the Red Flags Rule) 28 included a definition of “financial institution,” as set forth in in section 603(t) of the FCRA, as amended in section 111 of the FACT Act.29 That term includes “a State or National bank, a State or Federal savings and loan association, a mutual savings bank, a State or Federal credit union, or any other person that, directly or indirectly, holds a transaction account (as defined in section 19(b) of the Federal Reserve Act) belonging to a consumer.” 30

28 12 CFR 334.90(b)(7).

29 15 U.S.C. 1681a(t).

30Id.

The Red Flags Rule 31 also included a definition of “creditor,” as set forth in section 603(r)(5) of the FCRA, as amended in section 111 of the FACT Act.32 That definition referenced the definition of “creditor” in section 702 of the Equal Credit Opportunity Act (“ECOA”). The ECOA defines the term “creditor” broadly as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew or continue credit.”  33 The ECOA further defines “credit” as “the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.” 34 Regulation B, promulgated under the ECOA, defines “credit” in similar terms: “the right granted by a creditor to an applicant to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment therefor.” 35

31 12 CFR 334.90(b)(5)

32 15 U.S.C. 1681a(r)(5).

33 15 U.S.C. 1691a(e).

34 15 U.S.C. 1691a(d).

35 12 CFR 1002.2(j).

The current FDIC definition of “creditor” also expressly includes “lenders such as banks, finance companies, automobile dealers, mortgage brokers, utility companies, and telecommunications companies,” 36 the same definition as the joint rules issued by the OCC, FRB, OTS and FTC.

36 12 CFR 334.90(b)(5).

Since the scope of the FDIC's red flag regulation covers “an insured state nonmember bank, or a subsidiary of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisors),” 37 the vast majority, but not all, of the entities covered by the FDIC regulation fall under the “financial institutions” definition.38

37 12 CFR 334.90(a).

38 This result would be the same if the new scope provision of the Red Flags Rule as proposed in this notice of proposed rulemaking—which would add “a State savings association whose deposits are insured by the Federal Deposit Insurance Corporation”—is finalized.

In contrast, the vast majority of the entities supervised by the FTC's rule would be covered by the statutory “creditor” definition. As such, the FTC had issued guidance on the scope of that definition. For example, in a set of answers to frequently asked questions issued in June, 2009, the FTC stated: “Under the [Red Flags Rule], the definition of `creditor' is broad and includes businesses or organizations that regularly provide goods or services first and allow customers to pay later. . . . Examples of groups that may fall within this definition are utilities, health care providers, lawyers, accountants, and other professionals, and telecommunications companies.” 39 The FTC had also stated in the preamble to the final Red Flags Rule that a “broad scope of entities” was covered.40 Similar guidance was provided in policy statements issued in 2008 and early 2009.41 This guidance led to a law suit brought by the American Bar Association against the FTC alleging that the application of the rules to attorneys exceeded FTC's authority. Similar complaints were brought by the American Medical Association and other professionals.

39See American Bar Ass'n v. Federal Trade Comm'n (“ABA v. FTC”), 671 F. Supp. 2d 64, 70 (D.D.C. 2009) (quoting Red Flags Rule: Frequently Asked Questions, http://www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm (since amended)), vacated as moot, 636 F.3d 641 (D.C. Cir. 2011).

40 72 FR at 63741.

41See ABA v. FTC, 671 F. Supp. 2d at 69-70.

In December 2010, Congress enacted the Red Flag Program Clarification Act (Clarification Act), 15 U.S.C. 1681m(e)(4), which narrowed the scope of entities covered as “creditors” under the Red Flags Rule.42 The Clarification Act retained the ECOA definition of “creditor,” but generally limited the application of the Red Flags Rule to those ECOA creditors that “regularly and in the ordinary course of business” engaged in at least one of the following three types of conduct:

42 Pub. L. 111-319, 124 Stat. 3457 (2010).

1. Obtaining or using consumer reports, directly or indirectly, in connection with a credit transaction; 43

43 15 U.S.C. 1681m(e)(4)(A)(i).

2. Furnishing information to consumer reporting agencies in connection with a credit transaction; 44 or

44 15 U.S.C. 1681m(e)(4)(A)(ii).

3. Advancing funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person.45

45 15 U.S.C. 1681m(e)(4)(A)(iii).

The Clarification Act also expressly excluded creditors that advanced funds on behalf of a person for expenses incidental to a service provided by the creditor to that person.46

46 15 U.S.C. 1681m(e)(4)(B).

Finally, in addition to limiting the scope of coverage for “creditors” by creating these specified categories, the Clarification Act empowered the Agencies to determine through a future rulemaking whether to include any other type of creditor that offers or maintains accounts that are subject to a reasonably foreseeable risk of identity theft.47

47 15 U.S.C. 1681m(e)(4)(C).

When amending its Red Flag “creditor” definition in 2012, the FTC choose not to use its discretionary rulemaking to extend coverage of the Red Flags Rule to additional creditors and merely cited to the Clarification Act statutory definition.48 The FDIC is now adopting a similar result, to amend the “creditor” definition in its Red Flags Rule to expressly cite to the Clarification Act statutory provision, 15 U.S.C. 1681m(e)(4).

48See 77 FR 72712 (Dec. 6, 2012).

The FDIC has conferred with staff from the other Federal banking agencies, who do not object to the issuance of this final rulemaking to amend the Red Flags Rule to conform it to the Clarification Act. In fact, in May, 2014, both the OCC and the Federal Reserve Board issued final rules making the conforming change.49 The SEC and CFTC have previously issued final rules under section 615 of FCRA that included a definition of “creditor” as set forth in the Clarification Act.50

49See 79 FR 28393, 28400 (May 16, 2014) (OCC); 79 FR 30709, 30711 (May 29, 2014) (Federal Reserve Board).

50See 78 FR 23638 (Apr. 19, 2013) (SEC and CFTC joint final rules; the CFTC “creditor” definition cited the Clarification Act provision, but also specifically listed the covered entities).

The FDIC is also adopting a technical amendment to supplement A to the guidelines that accompanied the Red Flags Rule consistent with the amendments, discussed below, to vacate the FDIC Fair Credit Reporting regulations with rule writing authority transferred to the CFPB.51 In supplement A, the Agencies provided a list of red flags to be considered by the entities covered by the rule. One of those red flags was “[a] consumer reporting agency provides a notice of address discrepancy, as defined in § 334.82(b) of this part.” 52 Since the FDIC is vacating its regulation at 12 CFR 334.82, the FDIC is changing the citation in that red flag to the CFPB regulation: § 1022.82(b).

51 12 CFR part 334, supplement A to appendix J.

52Id. at 3.

III. Removal of FDIC Fair Credit Regulations Transferred to the Consumer Financial Protection Bureau

In amending the FCRA, the FACT Act gave the FDIC, along with the other Federal banking regulators (and, in some cases, the FTC and the SEC), rule writing authority for a variety of Fair Credit Reporting regulations. Since 2004, those regulations have been promulgated on an inter-agency basis as follows:

• 2004: Disposal of Consumer Information, 12 CFR 334.83, implementing FACT Act section 216 (FCRA section 628 (15 U.S.C. 1681w));

• 2005: Medical Information, 12 CFR part 334, subpart D, implementing FACT Act section 411 (FCRA section 604(g)(5) (15 U.S.C. 1681b(g)(5));

• 2007: Affiliate Marketing, 12 CFR part 334, subpart C and appendix C, implementing FACT Act section 214 (FCRA section 624 note (15 U.S.C. 1681s-3 note));

• 2007: Identity Theft Red Flags, 12 CFR part 334, subpart J and appendix J, implementing FACT Act section 114 (FCRA section 615(e) (15 U.S.C. 1681m(e)); 53

53 As amended by the Clarification Act. See discussion above.

• 2007: Address Discrepancy, 12 CFR 334.82, implementing FACT Act section 315 (FCRA section 605(h) (15 U.S.C. 1681c(h)); and

• 2009: Duties of Furnishers of Information, 12 CFR part 334, subpart E and appendix E, implementing FACT Act section 312 (FCRA section 623(e) (15 U.S.C. 1681S-2(e)).

Title X of the Dodd-Frank Act amended a number of consumer financial protection laws, including provisions of the FCRA. In addition to substantive amendments, the Dodd-Frank Act transferred rulemaking authority from the FDIC, FRB, OCC, FTC, NCUA, and OTS for several provisions of the “Fair Credit Reporting” regulations to the CFPB, effective July 21, 2011.54 These include the following regulations listed above: medical information; affiliate marketing; address discrepancy; and duties of furnishers of information. Those regulations were covered under 12 CFR part 334 subparts C, D, and E, as well as 12 CFR 334.82 in subpart I. The transfer also included the related Appendices, 12 CFR part 334, Appendices C and E. On December 21, 2011, the CFPB published in the Federal Register an interim final rule Regulation V, which implemented the Dodd-Frank Act amendments to the FCRA with regard to those regulations and appendices.

54See sections 1061 and 1088 of the Dodd-Frank Act.

As discussed above, the Dodd-Frank Act did not transfer all rulemaking authority under the FCRA. Specifically, the Act did not transfer to the CFPB the authority to promulgate: rules on the disposal of consumer information; 55 rules on identity theft red flags and corresponding interagency guidelines on identity theft detection, prevention, and mitigation; 56 and rules on the duties of card issuers regarding changes of address.57 These existing provisions are not included in the Bureau's new Regulation V.58

55See 15 U.S.C. 1681m(e); section 1088 of the Dodd-Frank Act.

56See 15 U.S.C. 1681w; section 1088 of the Dodd-Frank Act.

57See 15 U.S.C. 1681m(e); section 1088 of the Dodd-Frank Act.

58 The Act also did not transfer rulemaking authority under the FCRA over any motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both, subject to certain exceptions. See section 1029 of the Dodd-Frank Act.

As a result of the of rule writing authority transferred to the CFPB, the FDIC rescinds and removes those regulations and appendices covered under the CFPB's Regulation V. In addition to the specific citations set out above, the FDIC is also rescinding and removing those parts of the Purpose and Definition provisions of the “Fair Credit Reporting” regulations that related to the substantive regulations transferred to the CFPB.59

59 Those provisions include part of 12 CFR 334.1 and the definitions set out at 12 CFR 334.3(a), (b), (d), (i), and (k).

Even though there is no longer rule writing authority for those “Fair Credit Reporting” rules, the FDIC will continue to examine for compliance with the rules and take enforcement action when warranted.

IV. Regulatory Analysis and Procedure A. The Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

Part of the Final Rule rescinds and removes part 391, subpart C from the FDIC regulations. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act. Part 391, subpart C is largely redundant of the FDIC's existing part 334 regarding “Fair Credit Reporting” regulations, including appendix J to the part. The FDIC reviewed its burden estimates for the collection at the time it assumed responsibility for supervision of State savings associations transferred from the OTS and determined that no changes to the burden estimates were necessary. This Final Rule will not modify the FDIC's existing collection and does not involve any new collections of information pursuant to the PRA.

The Final Rule also amends §§ 334.83, 334.90, and 334.91 to include State savings associations and their subsidiaries within the scope of part 334. The Final Rule also amends those provisions to define “State savings association.” These measures clarify that State savings associations, as well as State nonmember banks are subject to part 334. Thus, these provisions of the Final Rule will not involve any new collections of information under the PRA or impact current burden estimates.

Part of the Final Rule would amend the “creditor” definition in the FDIC's Identity Theft Red Flag regulation in conformance with the Clarification Act. The vast majority of entities regulated by the FDIC under the Identity Theft Red Flag regulation fall under the “financial institution” definition, and, therefore, would be covered under the rule regardless of the change in the “creditor” definition. For any subsidiary of a covered financial institution not covered under the “financial institution” definition, the change to the “creditor” definition would, arguably, cover fewer, rather than more, entities. Thus, this provision of the Final Rule will not involve any new collections of information under the PRA or substantively impact current burden estimates.

Finally, part of the Final Rule rescinds and removes those portions of 12 CFR part 334 where rule writing authority was transferred to the CFPB. This portion of the Final Rule will also not involve any new collections of information under the PRA or impact current burden estimates.

Based on the foregoing, no information collection request has been submitted to the OMB for review.

B. The Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”), requires that each federal agency either (1) certify that a proposed rule would not, if adopted in final form, have a significant economic impact on a substantial number of small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million), or (2) prepare an initial regulatory flexibility analysis of the rule and publish the analysis for comment.60 For the reasons provided below, the FDIC certifies that the Final Rule would not have a significant economic impact on a substantial number of small entities.

60 5 U.S.C. 601 et seq.

As discussed in the proposed rule, part 391, subpart C was transferred from OTS part 571, which governed Fair Credit Reporting. OTS part 571 had been in effect beginning in 2004, and all State savings associations were required to comply with it. Because it is basically redundant of existing part 334 of the FDIC's rules, the FDIC rescinds and removes part 391, subpart C. As a result, all FDIC-supervised institutions—including State savings associations and their subsidiaries—are required to comply with part 334. Because all State savings associations and their subsidiaries have been required to comply with substantially the same rules beginning in 2004, today's Final Rule would have no significant economic impact on any State savings association.

In a similar way, portions of part 334 of the FDIC's rules were transferred to the CFPB Regulation V effective 2011. Because all FDIC supervised institutions—including State savings associations and their subsidiaries—have been required to comply with part 334 beginning in 2004, today's Final Rule would have no significant economic impact on those institutions.61

61 When propounding its new Regulation V, the CFPB made the following representation in its Regulatory Flexibility Act discussion:

[T]his rule has only a minor impact on entities subject to Regulation V. Accordingly, the undersigned certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities. The rule imposes no new, substantive obligations on covered entities and will require only minor, one-time adjustments to certain model form. . . .

76 FR at 79312.

With regard to the portion of the Final Rule amending the Red Flags Rule and appendix:

1. Statement of the need for, and objectives of, the proposed rule. As noted above, the Clarification Act amended the definition of “creditor” in the FCRA for purposes of the red flags provisions. The FDIC is amending the definition of “creditor” in its Red Flags Rule to reflect the revised definition of that term in the Clarification Act. As also noted above, the FDIC is updating a cross-reference in the Red Flags Rule to reflect the CFPB's rulemaking authority for the notice of address discrepancy provisions in the FCRA.

2. Small entities affected by the proposed rule. The Final Rule would amend the definition of “creditor” in 12 CFR 334.90 to conform to the revised definition of that term in the Clarification Act. The definition continues to refer to the FCRA definition of “creditor,” which references the ECOA definition of “creditor,” but limits the application of the red flags provisions to only those creditors that regularly and in the ordinary course of business: (a) Obtain or use consumer reports in connection with a credit transaction; (b) furnish information to consumer reporting agencies in connection with a credit transaction; or (c) advance funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person. 12 U.S.C. 1681m(e)(4)(A). Creditors that advance funds on behalf of a person for expenses incidental to a service provided by the creditor to that person are excluded from the definition. Small entity creditors that do not meet this more limited definition would no longer be covered by the rule. However, small entities that are financial institutions would still be covered by the rule, regardless of whether they meet the revised definition of creditor.

The Final Rule also updates a cross-reference in the Red Flags Rule to reflect the CFPB's rulemaking authority for the notice of address discrepancy provisions in the FCRA. This revision would have no effect on small entities because there was no substantive difference between the FDIC definition of a “notice of address discrepancy” and the CFPB's definition.

3. Recordkeeping, reporting, and compliance requirements. The Final Rule does not impose any new recordkeeping, reporting, or compliance requirements on small entities. Small entities that no longer meet the narrower definition of “creditor” would not have to comply with the requirements of the Red Flags Rule. However, small entity financial institutions would still be required to comply with the Red Flags Rule, regardless of whether they meet the revised definition of creditor.

4. Other federal rules. The FDIC has not identified any federal statutes or regulations that would duplicate, overlap, or conflict with the proposed revision.

5. Significant alternatives to the proposed revisions. The revisions to the definition of “creditor” and the cross-reference to the definition of a “notice of address discrepancy” reflect statutory changes. The FDIC does not believe there are significant alternatives to these revisions. Although the FDIC has authority to determine through a rulemaking that any other creditor that offers or maintains accounts that are subject to a reasonably foreseeable risk of identity theft is subject to the Red Flags Rule, the FDIC does not believe it is appropriate to use its discretionary rulemaking authority at this time.

C. Plain Language

Section 722 of the GLB Act, codified at 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. The FDIC received no comments on whether the Proposed Rule was clearly stated and effectively organized or on how the FDIC might make it easier to understand.

D. The Economic Growth and Regulatory Paperwork Reduction Act

Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (“EGRPRA”), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.62 The FDIC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is commencing the next decennial review. The action taken on this rule will be included as part of the EGRPRA review that is currently in progress. The FDIC received no comments concerning whether the Proposed Rule would impose any outdated or unnecessary regulatory requirements on insured depository institutions.

62 Public Law 104-208 (Sept. 30, 1996).

List of Subjects 12 CFR Part 334

Fair credit reporting.

12 CFR Part 391

Fair credit reporting.

Authority and Issuance

For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation amends parts 334 and 391 of title 12 of the Code of Federal Regulations as set forth below:

PART 334—FAIR CREDIT REPORTING Subpart A—General Provisions 1. The authority citation for part 334 continues to read as follows: Authority:

12 U.S.C. 1818, 1819 (Tenth), and 1831p-1; 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-2, 1681s-3, 1681t, 1681w, 6801 et seq., Pub. L. 108-159, 117 Stat. 1952.

2. Revise § 334.1 to read as follows:
§ 334.1 Purpose and scope.

(a) Purpose The purpose of this part is to implement the Fair Credit Reporting Act.

(b) Scope Except as otherwise provided in this part, the regulations in this part apply to insured state nonmember banks, state savings associations whose deposits are insured by the Federal Deposit Insurance Corporation, insured state licensed branches of foreign banks, and subsidiaries of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers).

3. Amend § 334.3 by adding paragraph (m) to read as follows:
§ 334.3 Definitions.

(m) State savings association has the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

Subparts C through E—[Removed and Reserved]
3. Remove and reserve subparts C, D, and E. Subpart I—Records Disposal 4. Revise the heading for subpart I to read as set forth above.
§ 334.82 [Removed and Reserved]
5. Remove and reserve § 334.82. Subpart J—Identity Theft Red Flags 6. Amend § 334.90 by revising paragraphs (a) and (b)(5) and adding paragraph (b)(11) to read as follows:
§ 334.90 Duties regarding the detection, prevention, and mitigation of identity theft.

(a) Scope This section applies to a financial institution or creditor that is an insured state nonmember bank, State savings association whose deposits are insured by the Federal Deposit Insurance Corporation, insured state licensed branch of a foreign bank, or a subsidiary of such entities (except brokers, dealers, persons providing insurance, investment companies, and investment advisers).

(b) * * *

(5) Creditor has the same meaning as in 15 U.S.C. 1681m(e)(4).

(11) State savings association has the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

7. Amend § 334.91 by revising paragraph (a) and adding paragraph (b)(3) to read as follows:
§ 334.91 Duties of card issuers regarding change of address.

(a) Scope This section applies to an issuer of a debit or credit card (card issuer) that is an insured state nonmember bank, state savings association whose deposits are insured by the Federal Deposit Insurance Corporation, insured state licensed branch of a foreign bank, or a subsidiary of such entities (except brokers, dealers, persons providing insurance, investment companies, or investment advisers).

(b) * * *

(3) State savings association has the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

8. In appendix J to part 334, amend supplement A under the heading “Alerts, Notifications or Warnings from a Consumer Reporting Agency” by revising paragraph 3 to read as follows: Appendix J to Part 334—Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation Supplement A to Appendix J Alerts, Notifications or Warnings from a Consumer Reporting Agency 3. A consumer reporting agency provides a notice of address discrepancy, as defined in 12 CFR 1022.82(b). PART 391—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 9. The authority citation for part 391 continues, in part, to read as follows: Authority:

12 U.S.C. 1819.

Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w.

Subpart C—[Removed and Reserved]
10. Remove and reserve subpart C, consisting of §§ 391.20 through 391.23 and an appendix. Dated at Washington, DC, this 22nd day of October, 2015.

By order of the Board of Directors.

Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
[FR Doc. 2015-27291 Filed 10-27-15; 8:45 am] BILLING CODE 6714-01-P
FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 330 and 370 RIN 3064-AE34 Temporary Liquidity Guarantee Program; Unlimited Deposit Insurance Coverage for Noninterest-Bearing Transaction Accounts AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Final rule.

SUMMARY:

The FDIC is rescinding and removing its regulations implementing the Temporary Liquidity Guarantee Program (TLGP) and the unlimited deposit insurance coverage for “noninterest-bearing transaction accounts” provided by section 343 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and related definitions. Because these programs have expired by their terms, the regulations implementing them are unnecessary and obsolete.

DATES:

Effective Date: The final rule is effective October 28, 2015.

FOR FURTHER INFORMATION CONTACT:

Schuyler Livingston, Economic Analyst, Division of Insurance and Research (202) 898-6830 or [email protected]; Marc Steckel, Deputy Director, Division of Resolutions and Receiverships (571) 858-8224 or [email protected]; Lisa D. Arquette, Associate Director, Division of Risk Management Supervision (202) 898-8633 or [email protected]; or Gregory S. Feder, Counsel, Legal Division (202) 898-8724 or [email protected].

SUPPLEMENTARY INFORMATION: I. Background

In October 2008, acting in response to unprecedented disruptions to the nation's credit markets and pursuant to section 13(c)(4)(G) of the Federal Deposit Insurance Act (FDI Act),1 the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) and the Board of Governors of the Federal Reserve System (FRB) recommended that the Secretary of the Treasury, following consultation with the President, make a determination that systemic risk existed in the nation's financial system. After the Treasury Secretary's determination of systemic risk, the FDIC was authorized to take action or to provide assistance as necessary to avoid or to mitigate the effects of the perceived risks to the financial system. Pursuant to this authority, the FDIC issued part 370 of Title 12 of the Code of Federal Regulations (part 370) which established the TLGP. The TLGP was composed of two distinct components: The Debt Guarantee Program (DGP) and the Transaction Account Guarantee Program (TAGP). The DGP provided a temporary FDIC guarantee for all newly issued senior unsecured debt issued by participating entities up to prescribed limits; the TAGP provided a temporary FDIC guarantee for all funds held at FDIC-insured depository institutions in noninterest-bearing transaction accounts above the existing deposit insurance limit.

1 12 U.S.C. 1823(c)(4)(G).

From its inception, the TLGP was intended to be a time-limited program. The FDIC's initial guarantee under the DGP expired on the earlier of the maturity date of the debt or June 30, 2012, for newly issued senior unsecured debt issued through June 30, 2009, by entities that opted into the DGP.2 To reduce market disruption at the conclusion of the DGP and to facilitate the orderly phase-out of the program, in 2009, the FDIC extended the issuance period for senior unsecured debt through October 31, 2009, and similarly extended the FDIC's guarantee on such obligations to the earlier of the stated maturity date of the debt or December 31, 2012.3 Later in 2009, the FDIC established a limited six-month emergency guarantee facility, available to participating entities on an application basis. Although no entities applied to avail themselves of the FDIC's emergency guarantee facility, the FDIC would have permitted approved entities to issue FDIC-guaranteed debt through April 30, 2010, for which the FDIC's guarantee would have expired on the earlier of the stated maturity date of the debt or December 31, 2012.4

2 73 FR 72244 (Nov. 26, 2008).

3 74 FR 26521 (Jun. 3, 2009).

4 74 FR 54743 (Oct. 23, 2009).

Under the TAGP, the FDIC's guarantee of all noninterest-bearing transaction accounts originally was scheduled to expire on December 31, 2009.5 In recognition of the continuing effects of economic turmoil, the FDIC twice extended the expiration deadline for the TAGP: First, until June 30, 2010,6 and, later, until December 31, 2010, “unless the Board, for good cause, extends the program for an additional period of time not to exceed one year.” 7 On September 30, 2010, the FDIC indicated that the TAGP would not be extended beyond December 31, 2010.8

5 73 FR 72244 (Nov. 26, 2008).

6 74 FR 45093 (Sept. 1, 2009).

7 75 FR 36506 (Jun. 28, 2010).

8 75 FR 60341 (Sept. 30, 2010).

Over the course of the DGP's existence, 122 entities issued TLGP debt. At its peak, the DGP guaranteed $345.8 billion of outstanding debt. The DGP guarantee on all TLGP debt that had not already matured expired on December 31, 2012. Therefore, at the end of 2012, no debt guaranteed by the FDIC under the DGP remained.

The FDIC collected $10.4 billion in fees and surcharges under the DGP. As of December 31, 2012, the FDIC had paid $153 million in losses resulting from six participating entities defaulting on debt issued under the DGP. The majority of these losses ($113 million) arose from banks with outstanding DGP notes that failed in 2011 and were placed into receivership.

The FDIC collected $1.2 billion in fees under the TAGP. Cumulative estimated TAGP losses on failures as of December 31, 2012, totaled $2.1 billion.

Overall, TLGP fees exceeded the losses from the program. From the inception of the TLGP, it was the FDIC's policy to recognize revenue to the Deposit Insurance Fund (DIF) for any portion of guarantee fees in excess of amounts needed to cover potential losses upon expiration of the TLGP guarantee period (December 31, 2012) or earlier. In total, $9.3 billion in TLGP fees were deposited into the DIF.

On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) was enacted.9 Section 343 of the Dodd-Frank Act provided for unlimited deposit insurance for noninterest-bearing transaction accounts for two years starting December 31, 2010, after which, by its terms, the section was repealed. This unlimited coverage for “noninterest-bearing transaction accounts” as defined in the Dodd-Frank Act was similar to, but not identical to, the protection provided for such account owners under the FDIC's TAGP. On November 15, 2010, the FDIC published a final rule in the Federal Register amending 12 CFR part 330 to implement section 343 of the Dodd-Frank Act, providing for unlimited deposit insurance for “noninterest-bearing transaction accounts” for two years starting December 31, 2010.10 The final rule added a new definition of noninterest-bearing transaction account to the FDIC's regulations at § 330.1(r) (now § 330.1(s)). The final rule also added new § 330.16 to provide for full insurance coverage, regardless of the standard maximum deposit insurance limit, to noninterest-bearing transaction accounts from December 31, 2010, through December 31, 2012.

9 Public Law 111-203 (July 21, 2010).

10 75 FR 69577 (Nov. 15, 2010) (adding 12 CFR 303.1(r), 303.16). The FDIC used its proposed rule implementing the Dodd-Frank coverage for noninterest-bearing transaction accounts as a vehicle for the FDIC's Board of Directors to announce that it would not continue the TAGP beyond December 31, 2010. 75 FR 60341(Sept. 30, 2010).

On January 27, 2011, the FDIC published a final rule in the Federal Register (1) amending the definition of “noninterest-bearing transaction account” to include IOLTA accounts; (2) requiring that notice be posted regarding the scope of coverage of the Dodd-Frank Act transaction account guarantee program at the bank's main office, in branch lobbies, and on its Web site; and (3) requiring that notice be provided to holders of NOW accounts that such accounts are no longer covered.11

11 76 FR 4813 (Jan. 27, 2011) (amending 12 CFR 303.1(r), 303.16).

The expiration dates for the DGP and the TAGP were stated clearly in the FDIC's TLGP regulation. Because December 31, 2010 (the expiration date of the TAGP) and December 31, 2012 (the expiration of the DGP) have passed, all of the FDIC's obligations under either component of the TLGP have expired. With the expiration of both the DGP and the TAGP, part 370 is unnecessary and obsolete.

Similarly, § 330.16(a) clearly provides that the unlimited deposit insurance for noninterest-bearing transaction accounts under the Dodd-Frank Act expired on December 31, 2012. After that date, by its terms, the section was repealed. As such, § 330.16 and the definition of “noninterest-bearing transaction account” at § 330.1(s) are unnecessary and obsolete.

II. The Final Rule

For the reasons set forth in the preceding section, the FDIC is issuing the final rule, which will rescind part 370, § 330.16, and § 330.1(s) and remove them from the FDIC's regulations.

III. Regulatory Analysis A. Administrative Procedure Act 1. Notice and Opportunity for Public Comment

Pursuant to section 553(b)(3)(B) of the Administrative Procedure Act (APA), providing notice and an opportunity for public comment is not required prior to the issuance of a substantive rule if an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. In this instance, the FDIC invokes this good cause exception to Section 553 of the APA.

The FDIC believes that good cause exists for issuing a final rule without providing notice and an opportunity for public comment because such an exercise is “unnecessary.” By the express terms of both regulations, the underlying programs described in part 370 and § 330.16 have expired, and, because of that, the rescission of these rules can have no effect on the banking industry or the public. Moreover, the rescission of part 370, § 330.1(s), and § 330.16 is not “substantive” as the programs that these regulations implemented have expired and they affect no substantive rights or obligations.

2. Effective Date

In addition, section 553(d)(3) of the APA provides that an agency, for good cause found and published with the rule, does not have to comply with the requirement that a substantive rule be published not less than 30 days before its effective date. The FDIC invokes this good cause exception because the rescission of part 370, § 330.1(s), and § 330.16 is not “substantive” as the programs that these regulations implemented have expired and they affect no substantive rights or obligations.12

12 5 U.S.C. 553(d)(3).

B. The Economic Growth and Regulatory Paperwork Reduction Act

Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA),13 the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions. The FDIC completed the last comprehensive review of its regulations under EGRPRA in 2006 and has commenced the next decennial review. Rescission of part 370 and § 330.16 is consistent with the required regulatory response to the EGRPRA review process: To eliminate unnecessary regulations to the extent such action is appropriate.

13 12 U.S.C. 3311.

C. Small Business Regulatory Enforcement Fairness Act

The Office of Management and Budget has determined that the Final Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA).14 As required by law, the FDIC will file the appropriate reports with Congress and the General Accounting Office so that the Final Rule may be reviewed.

14 Public Law 104-121 (Mar. 29, 1996), as amended by Public Law 110-28 (May 25, 2007).

D. Paperwork Reduction Act

Existing collections of information shall be discontinued or modified, as appropriate, to the extent that this rule obviates or alters any collection of information.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act 15 (RFA) applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b), or any other law.16 As discussed above, consistent with section 553(b)(3)(B) of the APA, the FDIC has determined for good cause that general notice and opportunity for public comment would be unnecessary. Therefore, pursuant to 5 U.S.C. 601(2), the RFA does not apply.

15 Public Law 96-354 (Sept. 19, 1980).

16 5 U.S.C. 601(2).

List of Subjects 12 CFR Part 330

Bank deposit insurance, Banks, Banking, Reporting and recordkeeping requirements, Savings and loan associations, Trusts and trustees.

12 CFR Part 370

Banks, Banking, Bank deposit insurance, Holding companies, National banks, Reporting and recordkeeping requirements, Savings associations.

Authority and Issuance

For the reasons set forth in the preamble above, under the authority of 12 U.S.C. 1821, the Board of Directors of the Federal Deposit Insurance Corporation amends chapter III of title 12 of the Code of Federal Regulations as follows:

PART 330—DEPOSIT INSURANCE COVERAGE 1. The authority citation for part 330 continues to read as follows: Authority:

12 U.S.C. 1813(l), 1813(m), 1817(i), 1818(q), 1819(a)(Tenth), 1820(f), 1820(g), 1821(a), 1821(d), 1822(c).

§ 330.1 [Amended]
2. Remove and reserve § 330.1(s).
§ 330.16 [Removed and Reserved]
3. Remove and reserve § 330.16.
PART 370—[Removed and Reserved] 4. Remove and reserve part 370. Dated at Washington, DC, this 22nd day of October 2015.

By order of the Board of Directors.

Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
[FR Doc. 2015-27294 Filed 10-27-15; 8:45 am] BILLING CODE 6714-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4205; Directorate Identifier 2015-NM-149-AD; Amendment 39-18301; AD 2015-21-08] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD requires repetitive eddy current inspections for any cracking in the inspar upper skin, and related investigative and corrective actions if necessary. This AD was prompted by a report that an operator discovered a crack in a certain section of the inspar upper skin, just forward of the rear spar on the right wing. We are issuing this AD to detect and correct any cracking in the inspar upper skin and rear spar upper chord, which could result in the inability of the structure to carry limit load, or result in a fuel leak, which could prevent continued safe flight and landing.

DATES:

This AD is effective November 12, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 12, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of April 9, 2014 (79 FR 12368, March 5, 2014). We must receive comments on this AD by December 14, 2015.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

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

For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4205.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4205; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We have received a report that an operator discovered a crack in the inspar upper skin at wing buttock line 157, just forward of the rear spar on the right wing. The crack measured 2.375 inches long. Two additional cracks were found in the skin at two holes common to the rear spar in the same area. Subsequent inspections specified in Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013, revealed that the rear spar upper chord was almost completely severed. Web cracks were also discovered on both wings. This condition, if not corrected, could result in the inability of the structure to carry limit load, or result in a fuel leak, which could prevent continued safe flight and landing. We are issuing this AD to correct the unsafe condition on these products.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015. The service information describes procedures for repetitive eddy current inspections for any cracking in the inspar upper skin, and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Other Relevant Rulemaking

AD 2014-12-13, Amendment 39-17874 (79 FR 39300, July 10, 2014), was issued for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. AD 2014-12-13 requires repetitive inspections for cracking of the aft support fitting for the main landing gear beam, and the rear spar upper chord and rear spar web in the area of rear spar station 224.14; and repair if necessary. AD 2014-12-13 refers to Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013, as the appropriate source of service information for accomplishing the required actions.

For those airplanes that have not yet done the high frequency eddy current open-hole inspection specified in Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013, this AD specifies using Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, to do the eddy current inspections for any cracking in the inspar upper skin area near the rear spar at wing buttock line 157. The eddy current inspections specified in Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, are intended to ensure there are no undetected cracks in the inspar upper skin area near the rear spar at wing buttock 157 prior to the accomplishment of the inspections specified in Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013.

FAA's Determination

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

AD Requirements

This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”

“Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

The phrase “corrective actions” is used in this AD. “Corrective actions” correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

Differences Between the AD and the Service Information

Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this AD requires repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

The effectivity of Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, includes Group 1, configuration 1, airplanes. Those airplanes have been inspected using a high frequency eddy current open-hole inspection, in accordance with Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013. We have determined that only those airplanes that have not done the high frequency eddy current open-hole inspection, in accordance with Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013, are affected by the identified unsafe condition addressed in this AD. Therefore, we have excluded Group 1, configuration 1, airplanes from the applicability of this AD.

Explanation of “RC” Steps in Service Information

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as Required for Compliance (RC) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

For service information that contains steps that are labeled as RC, the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

FAA's Justification and Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracking in the inspar upper skin and rear spar upper chord could result in the inability of the structure to carry limit load, or result in a fuel leak, which could prevent continued safe flight and landing. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2015-4205 and Directorate Identifier 2015-NM-149-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

Costs of Compliance

We estimate that this AD affects 495 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 1 work-hour × $85 per hour = $85 per inspection cycle $0 $85 per inspection cycle $42,075 per inspection cycle.

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • One-time inspection 86 work-hours × $85 per hour = $7,310 $0 $7,310 Repair 3,700 work-hours × $85 per hour = $314,500 0 314,500
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-21-08 The Boeing Company: Amendment 39-18301; Docket No. FAA-2015-4205; Directorate Identifier 2015-NM-149-AD. (a) Effective Date

    This AD is effective November 12, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015; except for Group 1, configuration 1, airplanes identified in Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by a report that an operator discovered a crack in the inspar upper skin at wing buttock line 157, just forward of the rear spar on the right wing. We are issuing this AD to detect and correct any cracking in the inspar upper skin and rear spar upper chord, which could result in the inability of the structure to carry limit load, or result in a fuel leak, which could prevent continued safe flight and landing.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    Except as provided by paragraph (h) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015: Do an eddy current inspection for any cracking in the inspar upper skin, and repair doublers and repair triplers, as applicable, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015; except as provided by paragraph (h) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspection thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015.

    (h) Exceptions to the Service Information

    (1) Where Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) The “Condition” column of table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, refers to total flight cycles “as of the original issue date of this service bulletin.” However, for this condition, this AD applies to the airplanes with the specified total flight cycles as of the effective date of this AD.

    (3) Although Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, specifies to contact Boeing for certain repair instructions, and specifies that action as “RC” (Required for Compliance), this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (i) Terminating Actions for Certain Airplanes

    For Group 1, configurations 5 through 7, airplanes specified in Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015, accomplishment of any applicable high frequency eddy current inspection, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013 (which was incorporated by reference in AD 2014-03-06, Amendment 39-17743 (79 FR 12368, March 5, 2014), and continues to be incorporated by reference in AD 2014-12-13, Amendment 39-17874 (79 FR 39300, July 10, 2014)), terminates the repetitive inspections in paragraph (g) of this AD for those airplanes, provided if any cracking is found, repair is done before further flight using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    Note 1 to paragraph (i) of this AD:

    AD 2014-12-13, Amendment 39-17874 (79 FR 39300, July 10, 2014), refers to Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013, as the appropriate source of service information for accomplishing the actions required in that AD.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (k) Related Information

    For more information about this AD, contact Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    (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 the AD specifies otherwise.

    (3) The following service information was approved for IBR on November 12, 2015.

    (i) Boeing Alert Service Bulletin 737-57A1326, dated September 22, 2015.

    (ii) Reserved.

    (4) The following service information was approved for IBR on April 9, 2014 (79 FR 12368, March 5, 2014).

    (i) Boeing Special Attention Service Bulletin 737-57-1318, dated May 15, 2013.

    (ii) Reserved.

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

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

    (7) 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 11, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-26993 Filed 10-27-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0593; Directorate Identifier 2015-NE-08-AD; Amendment 39-18254; AD 2015-17-21] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211-535E4-37, RB211-535E4-B-37, and RB211-535E4-C-37 turbofan engines. This AD requires reducing the cyclic life limits for certain high-pressure turbine (HPT) disks, removing those disks that have exceeded the new life limit, and replacing them with serviceable parts. This AD was prompted by RR updating the life limits for certain HPT disks. We are issuing this AD to prevent failure of the HPT disk, which could result in uncontained disk release, damage to the engine, and damage to the airplane.

    DATES:

    This AD becomes effective December 2, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 2, 2015.

    ADDRESSES:

    For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; Internet: https://www.aeromanager.com. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0593.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0593; 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 mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is 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:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on April 29, 2015 (80 FR 23737). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

    An engineering analysis, carried out by RR, of the lives of critical parts of the RB211-535E4-37 engine, has resulted in reduced cyclic life limits for certain high pressure (HP) turbine discs. The reduced limits are published in the RR RB211-535E4-37 Time Limits Manual (TLM): 05-10-01-800-000, current Revision dated July 2014.

    Operation of critical parts beyond these reduced cyclic life limits may result in part failure, possibly resulting in the release of high-energy debris, which may cause damage to the aeroplane and/or injury to the occupants.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 23737, April 29, 2015).

    Conclusion

    We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

    Related Service Information Under 1 CFR Part 51

    We reviewed Task 05-00-01-800-000, “Recording and Control of the Lives of Parts”, dated July 1, 2015, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015; and Task 05-10-01-800-000, “Group A Parts Lives—CONFIG-1”, dated July 1, 2014, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015. This service information provides revised life limits for the affected HPT disks. This service information is reasonably available because the interested parties have access to it through their normal course of business or see ADDRESSES for other ways to access this service information.

    Related Service Information

    We reviewed RR Non-Modification Service Bulletin (NMSB) No. RB.211-72-G188, Revision No. 1, dated October 30, 2013. The NMSB describes the updated lifing analysis of the affected HPT disks.

    Costs of Compliance

    We estimate that this AD affects 650 engines installed on airplanes of U.S. registry. We also estimate that it would take about 0 hours per engine to comply with this AD. The average labor rate is $85 per hour. The pro-rated cost of required parts would be about $12,213 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $7,938,450.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-17-21 Rolls-Royce plc: Amendment 39-18254; Docket No. FAA-2015-0593; Directorate Identifier 2015-NE-08-AD. (a) Effective Date

    This AD becomes effective December 2, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Rolls-Royce plc (RR), RB211-535E4-37, RB211-535E4-B-37, and RB211-535E4-C-37 turbofan engines.

    (d) Reason

    This AD was prompted by RR updating the life limits for certain high-pressure turbine (HPT) disks. We are issuing this AD to prevent failure of the HPT disk, which could result in uncontained disk release, damage to the engine, and damage to the airplane.

    (e) Actions and Compliance

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

    (1) After the effective date of this AD, use Task 05-00-01-800-000, “Recording and Control of the Lives of Parts”, dated July 1, 2015, of the Rolls-Royce (RR) RB211-535E4-37/23 Time Limits Manual (TLM), publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015 to determine the new life limits for the affected engine models and configurations, with the exception of those engine models mentioned in paragraph (e)(2) of this AD.

    (2) For RR RB211-535E4-B-37 or RB211-535E4-C-37 engines with an affected HPT disk that was previously installed on an RB211-535E4-37 engine operated under Flight Plan A, use Task 05-10-01-800-000, “Group A Parts Lives—CONFIG-1”, dated July 1, 2014, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015 to re-calculate equivalent cycles since new to obtain the new life limit.

    (3) If an affected engine model has an HPT disk installed with part number (P/N) UL27681 or UL39767, remove the affected HPT disk before the accumulated cyclic life exceeds either 19,500 flight cycles (FCs) under Flight Plan A, or 14,700 FCs under Flight Plan B, or within 25 FCs after the effective date of this AD, whichever occurs later.

    (4) For all affected engines, other than those specified in paragraph (e)(3) of this AD, remove each HPT disk before exceeding its applicable life limit as specified in Task 05-00-01-800-000, “Recording and Control of the Lives of Parts”, dated July 1, 2015, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015; and Task 05-10-01-800-000, “Group A Parts Lives—CONFIG-1”, dated July 1, 2014, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015.

    (5) Install an HPT disk eligible for installation.

    (f) Definition

    For the purpose of this AD, a part eligible for installation is one with a P/N listed in Task 05-00-01-800-000, “Recording and Control of the Lives of Parts”, dated July 1, 2015, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015; and Task 05-10-01-800-000, “Group A Parts Lives—CONFIG-1”, dated July 1, 2014, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015 with a total accumulated cyclic life that is less than the applicable life limit specified in those Tasks.

    (g) Alternative Methods of Compliance (AMOCs)

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

    (h) Related Information

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

    (2) Refer to MCAI European Aviation Safety Agency AD 2014-0249R1, dated February 18, 2015, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2015-0593.

    (i) Material Incorporated by Reference

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

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

    (i) Task 05-00-01-800-000, “Recording and Control of the Lives of Parts”, dated July 1, 2015, of the Rolls-Royce (RR) RB211-535E4-37/23 Time Limits Manual (TLM), publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015.

    (ii) Task 05-10-01-800-000, “Group A Parts Lives—CONFIG-1”, dated July 1, 2014, of the RR RB211-535E4-37/23 TLM, publication reference T-211(535)-6RR, Revision 49, dated July 1, 2015.

    (3) For RR service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; Internet: https://www.aeromanager.com.

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

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

    Issued in Burlington, Massachusetts, on August 21, 2015. Colleen M. D'Alessandro, Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2015-21729 Filed 10-27-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4207; Directorate Identifier 2015-NM-123-AD; Amendment 39-18304; AD 2015-21-11] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2015-16-01 for certain The Boeing Company Model airplanes. AD 2015-16-01 required incorporating design changes to improve the reliability of the cabin altitude warning system by installing a redundant cabin altitude pressure switch, replacing the aural warning module (AWM) with a new or reworked AWM, and changing certain wire bundles or connecting certain previously capped and stowed wires as necessary. For certain airplanes, AD 2015-16-01 also required prior or concurrent incorporation of related design changes by modifying the instrument panels, installing light assemblies, modifying the wire bundles, and installing a new circuit breaker, as necessary. This AD retains all actions required by AD 2015-16-01. This AD was prompted by the discovery of a typographical error in AD 2015-16-01 that referred to a nonexistent paragraph. We are issuing this AD to prevent the loss of cabin altitude warning, which could delay flightcrew recognition of a lack of cabin pressurization, and could result in incapacitation of the flightcrew due to hypoxia (a lack of oxygen in the body), and consequent loss of control of the airplane.

    DATES:

    This AD is effective November 12, 2015.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 15, 2015 (80 FR 48013, August 11, 2015).

    The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of November 7, 2012 (77 FR 60296, October 3, 2012).

    We must receive any comments on this AD by December 14, 2015.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4207.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4207; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Francis Smith, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-917-6596; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On July 22, 2015, we issued AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), for certain The Boeing Company Model 737 airplanes. AD 2015-16-01 required incorporating design changes to improve the reliability of the cabin altitude warning system by installing a redundant cabin altitude pressure switch, replacing the AWM with a new or reworked AWM, and changing certain wire bundles or connecting certain previously capped and stowed wires as necessary. For certain airplanes, AD 2015-16-01 also required prior or concurrent incorporation of related design changes by modifying the instrument panels, installing light assemblies, modifying the wire bundles, and installing a new circuit breaker, as necessary. AD 2015-16-01 resulted from the report of a flightcrew not receiving an aural warning during a lack of cabin pressurization event. We issued AD 2015-16-01 to prevent the loss of cabin altitude warning, which could delay flightcrew recognition of a lack of cabin pressurization, and could result in incapacitation of the flightcrew due to hypoxia (a lack of oxygen in the body), and consequent loss of control of the airplane.

    Actions Since AD 2015-16-01 Was Issued

    Since we issued AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), we have discovered a typographical error in paragraph (j)(1)(iii) of AD 2015-16-01. That error referred to paragraph (j)(4), which is a paragraph that does not exist in AD 2015-16-01. The correct reference is paragraph (j)(1)(iv) of AD 2015-16-01. We have changed paragraph (j)(1)(iii) of this AD accordingly.

    We have also revised paragraph (g)(2) of this AD to remove a limitation to use only Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014, after the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015).

    Related Service Information Under 1 CFR Part 51

    We reviewed the following service information:

    • Boeing Alert Service Bulletin 737-31A1325, Revision 2, dated June 5, 2014.

    • Boeing Alert Service Bulletin 737-31A1332, Revision 4, dated October 31, 2013.

    • Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013.

    • Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014.

    The service information describes procedures for incorporating design changes to improve the reliability of the cabin altitude warning system by installing a redundant cabin altitude pressure switch, replacing the AWM with a new or reworked AWM, and changing certain wire bundles or connecting certain previously capped and stowed wires as necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    FAA's Determination

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

    AD Requirements

    This AD requires the same actions as those required in AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015).

    FAA's Justification and Determination of the Effective Date

    We are superseding AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), to correct a typographical error in paragraph (j)(1)(iii) of AD 2015-16-01, which inadvertently referenced a non-existent paragraph, and to revise paragraph (g)(2) of this AD to remove a limitation to use only Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014, after the effective date of AD 2015-16-01. We have made no other changes to the requirements published in AD 2015-16-01. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2015-4207 and Directorate Identifier 2015-NM-123-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

    Costs of Compliance

    We estimate that this AD affects 1,618 airplanes of U.S. registry. The new requirements of this AD add no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Install a redundant cabin altitude pressure switch, replace the AWM with a new or reworked AWM, change certain wire bundles or connect certain capped and stowed wires [retained actions from AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), for 1,618 airplanes] Up to 62 work-hours × $85 per hour = up to $5,270 $33,576 Up to $38,846 Up to $62,852,828. Modify the instrument panels, install light assemblies, modify the wire bundles, and install a new circuit breaker (concurrent requirements) [retained actions from AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), for 1,596 airplanes] Up to 92 work-hours × $85 per hour = up to $7,820 5,292 Up to $13,112 Up to $20,926,752. Modify the instrument panels, install light assemblies, modify the wire bundles, and install a new circuit breaker (concurrent requirements) [retained actions from AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), for 22 airplanes] Up to 92 work-hours × $85 per hour = up to $7,820 5,292 Up to $13,112 Up to $288,464.
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (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) 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015) and adding the following new AD: 2015-21-11 The Boeing Company: Amendment 39-18304; Docket No. FAA-2015-4207; Directorate Identifier 2015-NM-123-AD. (a) Effective Date

    This AD is effective November 12, 2015.

    (b) Affected ADs

    This AD replaces AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015).

    (c) Applicability

    This AD applies to The Boeing Company airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model 737-100, -200, -200C, -300,-400, and -500 series airplanes, as identified in Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013.

    (2) Model 737-600, -700, -700C, -800,-900, and -900ER series airplanes, as identified in Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 21, Air Conditioning.

    (e) Unsafe Condition

    This AD was prompted by the report of a flightcrew not receiving an aural warning during a lack of cabin pressurization event. We are issuing this AD to prevent the loss of cabin altitude warning, which could delay flightcrew recognition of a lack of cabin pressurization, and could result in incapacitation of the flightcrew due to hypoxia (a lack of oxygen in the body), and consequent loss of control of the airplane.

    (f) Compliance

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

    (g) Retained Installation, With Removal of Limitation To Use Certain Service Information

    This paragraph restates the actions required by paragraph (g) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), with removal of the limitation to use certain service information from paragraph (g)(2) of this AD. Within 72 months after November 7, 2012 (the effective date of AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012)), install a redundant cabin altitude pressure switch, replace the aural warning module (AWM) with a new or reworked AWM, and change certain wire bundles or connect certain capped and stowed wires, as applicable, in accordance with the Accomplishment Instructions of the applicable service information in paragraphs (g)(1) and (g)(2) of this AD; except as provided by paragraph (k)(1) of this AD.

    (1) Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012; or Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013 (for Model 737-100, -200, -200C, -300, -400, and -500 series airplanes). As of September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), use Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013, for the actions specified in paragraph (g) of this AD.

    (2) Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, as revised by Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012; or Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014 (for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes).

    (h) Retained Concurrent Actions, With No Changes

    This paragraph restates the concurrent actions required by paragraph (h) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), with no changes. For airplanes identified in Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010 (for Model 737-100, -200, -200C, -300, -400, and -500 series airplanes); and Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012 (for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes); except as provided by paragraph (i) of this AD: Before or concurrently with accomplishment of the actions specified in paragraph (g) of this AD, as applicable, modify the instrument panels, install light assemblies, modify the wire bundles, and install a new circuit breaker, in accordance with the Accomplishment Instructions of the applicable service information in paragraphs (h)(1) and (h)(2) of this AD; except as provided by paragraph (k)(2) of this AD.

    (1) The service information for Model 737-100, -200, -200C, -300, -400, and -500 series airplanes as identified in paragraphs (h)(1)(i), (h)(1)(ii), and (h)(1)(iii), of this AD. As of September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), use Boeing Alert Service Bulletin 737-31A1325, Revision 2, dated June 5, 2014 (for Model 737-100, -200, -200C, -300, -400, and -500 series airplanes), for the actions specified in paragraph (h) of this AD.

    (i) Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010.

    (ii) Boeing Alert Service Bulletin 737-31A1325, Revision 1, dated July 5, 2012.

    (iii) Boeing Alert Service Bulletin 737-31A1325, Revision 2, dated June 5, 2014.

    (2) Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012; or Boeing Alert Service Bulletin 737-31A1332, Revision 4, dated October 31, 2013 (for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes). As of September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), use Boeing Alert Service Bulletin 737-31A1332, Revision 4, dated October 31, 2013 (for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes), for the actions specified in paragraph (h) of this AD.

    (i) Retained Additional Concurrent Requirement, With No Changes

    This paragraph restates the concurrent actions required by paragraph (i) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), with no changes. For airplanes having variable numbers YA001 through YA008 inclusive, YA251, YA501 through YA508 inclusive, and YC321 through YC325 inclusive: Before or concurrently with accomplishment of the actions specified in paragraph (g) of this AD, or within 18 months after September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), whichever occurs later, modify the instrument panels, install light assemblies, modify the wire bundles, and install a new circuit breaker, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-31A1332, Revision 4, dated October 31, 2013.

    (j) Retained Credit for Previous Actions, With Corrected Paragraph Reference

    (1) This paragraph restates the credit for previous actions stated in paragraph (i) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), with corrected paragraph reference.

    (i) This paragraph provides credit for the actions required by paragraph (g) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), if those actions were performed before November 7, 2012 (the effective date of AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012)), using Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, which was incorporated by reference in AD 2012-19-11.

    (ii) For airplanes identified in Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010; except airplanes having variable numbers YA001 through YA019 inclusive, YA201 through YA203 inclusive, YA231 through YA242 inclusive, YA251, YA252, YA271, YA272, YA301, YA302, YA311, YA312, YA501 through YA508 inclusive, YA541, YA701, YA702, YC001 through YC007 inclusive, YC051, YC052, YC101, YC102, YC111, YC121, YC301, YC302, YC321 through YC330 inclusive, YC381, YC401 through YC403 inclusive, YC501, YC502, and YE001 through YE003 inclusive: This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), using Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010, which was incorporated by reference in AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012).

    (iii) For airplanes identified in Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011; except airplanes identified in paragraph (j)(1)(iv) of this AD and airplanes having variable numbers YA001 through YA019 inclusive, YA201 through YA203 inclusive, YA231through YA242 inclusive, YA251, YA252, YA271, YA272, YA301, YA302, YA311, YA312, YA501 through YA508 inclusive, YA541, YA701, YA702, YC001 through YC007 inclusive, YC051, YC052, YC101, YC102, YC111, YC121, YC301, YC302, YC321 through YC330 inclusive, YC381, YC401 through YC403 inclusive, YC501, YC502, and YE001 through YE003 inclusive: This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), using Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011, which was incorporated by reference in AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012).

    (iv) For Group 21, Configuration 2 airplanes identified in Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012: This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), using Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011, which was incorporated by reference in AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012); and provided that the actions specified in Boeing Service Bulletin 737-21-1171, dated February 12, 2009 (which is not incorporated by reference in this AD), were accomplished prior to or concurrently with the actions specified in Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011.

    (2) This paragraph provides credit for the actions specified in paragraph (h) of this AD, if those actions were performed before September 15, 2015 (the effective date of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015)), using the service information identified in paragraph (j)(2)(i) or (j)(2)(ii) of this AD.

    (i) Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010, which was incorporated by reference in AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012).

    (ii) Boeing Alert Service Bulletin 737-31A1325, Revision 1, dated July 5, 2012, which is not incorporated by reference in this AD.

    (k) Retained Exceptions to the Service Information, With No Changes

    This paragraph restates the actions required by paragraph (k) of AD 2015-16-01, Amendment 39-18226 (80 FR 48013, August 11, 2015), with no changes.

    (1) Where Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013, specifies to contact Boeing for instructions: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (l) of this AD.

    (2) Where Boeing Alert Service Bulletin 737-31A1325, Revision 2, dated June 5, 2014, specifies to contact Boeing for instructions: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (l) of this AD.

    (l) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) AMOCs approved for AD 2012-19-11, Amendment 39-17206 (77 FR 60296, October 3, 2012), are approved as AMOCs for the corresponding provisions of this AD.

    (m) Related Information

    (1) For more information about this AD, contact Francis Smith, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6596; fax: 425-917-6590; email: [email protected]

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(5) and (n)(6) of this AD.

    (n) Material Incorporated by Reference

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

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

    (3) The following service information was approved for IBR on September 15, 2015 (80 FR 48013, August 11, 2015).

    (i) Boeing Alert Service Bulletin 737-31A1325, Revision 2, dated June 5, 2014.

    (ii) Boeing Alert Service Bulletin 737-31A1332, Revision 4, dated October 31, 2013.

    (iii) Boeing Special Attention Service Bulletin 737-21-1164, Revision 2, dated August 23, 2013.

    (iv) Boeing Special Attention Service Bulletin 737-21-1165, Revision 3, dated July 16, 2014.

    (4) The following service information was approved for IBR on November 7, 2012 (77 FR 60296, October 3, 2012).

    (i) Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010.

    (ii) Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010.

    (iii) Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011.

    (iv) Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012.

    (v) Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012.

    (vi) Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010.

    (vii) Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012.

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

    (6) 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.

    (7) 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 16, 2015. Jeffrey E. Duven, Manager,Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-27190 Filed 10-27-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 748 [Docket No. 150825776-5776-01] RIN 0694-AG69 Amendments to Existing Validated End-User Authorizations in the People's Republic of China AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to revise the existing authorizations for Validated End Users Advanced Micro-Fabrication Equipment, Inc., China (AMEC) and Applied Materials (China), Inc. (AMC) in the People's Republic of China (PRC). Specifically, BIS amends Supplement No. 7 to Part 748 of the EAR to add one item to AMEC's list of eligible items that may be exported, reexported or transferred (in country) to the company's eligible facility in the PRC, and to add a facility and an item to Validated End User AMC's list of eligible destinations and eligible items.

    DATES:

    This rule is effective October 28, 2015.

    FOR FURTHER INFORMATION CONTACT:

    End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Phone: 202-482-5991; Fax: 202-482-3911; Email: [email protected].

    SUPPLEMENTARY INFORMATION: Background Authorization Validated End-User

    Validated End-Users (VEUs) are designated entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. The names of the VEUs, as well as the dates they were so designated, and their respective eligible destinations and items are identified in Supplement No. 7 to part 748 of the EAR. Under the terms described in that supplement, VEUs may obtain eligible items without an export license from BIS, in conformity with Section 748.15 of the EAR. Eligible items vary between VEUs and may include commodities, software, and technology, except those controlled for missile technology or crime control reasons on the Commerce Control List (CCL) (part 774 of the EAR).

    VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy, and Commerce, and other agencies, as appropriate, is responsible for administering the VEU program. BIS amended the EAR in a final rule published on June 19, 2007 (72 FR 33646), to create Authorization VEU.

    Amendments to Existing VEU Authorization for Advanced Micro-Fabrication Equipment Inc. China (AMEC) and Applied Materials (China) Inc. (AMC) in the People's Republic of China Revision to the List of “Eligible Items (by ECCN)” for AMEC

    In this final rule, BIS amends Supplement No. 7 to Part 748 to add one Export Control Classification Number (ECCN), 3B001.a.2, to the list of items that may be exported, reexported or transferred (in country) to AMEC's facility in the PRC under Authorization VEU. This amendment is made in response to a request from AMEC and upon the ERC's determination that adding the additional ECCN is authorized under Section 748.15 of the EAR. The revised list of eligible items for AMEC is as follows:

    Eligible Items (by ECCN) That May Be Exported, Reexported or Transferred (In Country) to the Eligible Destination Identified Under AMEC's Validated End-User Authorization

    2B230, 3B001.a.2, 3B001.c and 3B001.e (items classified under ECCNs 3B001.a.2, 3B001.c, and 3B001.e are limited to components and accessories).

    Revision to the List of “Eligible Items (by ECCN)” and List of “Eligible Destinations” for AMC

    In this rule, BIS also amends Supplement No. 7 to Part 748 to add an eligible facility, Applied Materials (China), Inc.—Headquarters, to AMC's authorized list of “Eligible Destinations.” Further, BIS authorizes one ECCN, 3E001 (limited to “technology” according to the General Technology Note for the “development,” or “production” of items controlled by ECCN 3B001), for the list of items which may be exported, reexported or transferred (in country) to that facility in the PRC under AMC's Authorization VEU. These amendments are made in response to a request from AMC and upon the ERC's determination that adding the additional facility and additional ECCN is authorized under Section 748.15 of the EAR. The new eligible facility and related eligible items, identified by three asterisks in Supplement No. 7 to Part 748, for AMC are as follows:

    New Eligible Destination, Applied Materials (China), Inc.—Headquarters, 1388 Zhangdong Road, Bldg. 22, Zhangiang Hi-Tech Park, Pudong, Shanghai, 201203, China Eligible Item (by ECCN) That May Be Exported, Reexported or Transferred (In Country) to the Applied Materials (China), Inc.—Headquarters Eligible Destination Identified Under AMCs Validated End-User Authorization, 3E001 (limited to “technology” according to the General Technology Note for the “development” or “production” of items controlled by ECCN 3B001) Export Administration Act

    Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Rulemaking Requirements

    1. 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 determined to be not significant for purposes of Executive Order 12866.

    2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and OMB Control Number 0694-0088 are not expected to increase significantly as a result of this rule. Notwithstanding any other provisions of law, no person is required to respond to, nor be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

    3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

    4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because they are unnecessary. In determining whether to grant VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313 (July 6, 2006) (proposed rule), and 72 FR 33646 (June 19, 2007) (final rule)). Given the similarities between the authorizations provided under the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy. In publishing this final rule, BIS adds eligible destinations and items to two existing eligible VEUs. These changes have been made within the established regulatory framework of the VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR.

    Publication of this rule in other than final form is unnecessary because the authorizations granted in the rule are consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. In addition, as with license applications, VEU authorization applications contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such applications. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Additionally, just as the interagency reviews license applications, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments, allowing additional public comment on this amendment to individual VEU authorizations, which was determined according to those criteria, is unnecessary.

    Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. However, BIS finds good cause to waive the 30-day delay in effectiveness for this rule pursuant to 5 U.S.C. 553(d)(3) because the delay would be contrary to the public interest. BIS is simply amending the authorization of two existing VEUs by adding an ECCN and a facility for one and an ECCN for the other to the list of eligible items that may be sent to them, consistent with established objectives and parameters administered and enforced by the responsible designated departmental representatives to the End-User Review Committee. Delaying this action's effectiveness would likely cause confusion regarding which items are authorized by the U.S. Government and in turn stifle the purpose of the VEU Program. Accordingly, it is contrary to the public interest to delay this rule's effectiveness.

    No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.

    List of Subjects in 15 CFR Part 748

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:

    PART 748—[AMENDED] 1. The authority citation for Part 748 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

    2. Amend Supplement No. 7 to part 748, under “China (People's Republic of),” by revising the entries for “Advanced Micro-Fabrication Equipment, Inc., China” and “Applied Materials (China), Inc.” to read as follows: Supplement No. 7 to Part 748—Authorization Validated End-User (VEU): List of Validated End-Users, Respective Items Eligible for Export, Reexport and Transfer, and Eligible Destinations Country Validated
  • end-user
  • Eligible items
  • (by ECCN)
  • Eligible destination Federal Register citation
    Nothing in this Supplement shall be deemed to supersede other provisions in the EAR, including but not limited to § 748.15(c). *         *         *         *         *         *         * Advanced Micro-Fabrication Equipment, Inc., China 2B230, 3B001.a.2, 3B001.c and 3B001.e (items classified under ECCNs 3B001.a.2, 3B001.c and 3B001.e are limited to components and accessories) Advanced Micro-Fabrication Equipment, Inc., 188 Taihua Road, Jinqiao Export Processing Zone (South Area), Pudong, Shanghai 201201, China 78 FR 41291, 7/10/13. 80 FR [INSERT PAGE NUMBER], 10/28/15. Applied Materials (China), Inc These Items Authorized for those Applied Materials Destinations Identified by one asterisk (*):, 2B006.b, 2B230, 2B350.g.3, 2B350.i, 3B001.a, 3B001.b, 3B001.c, 3B001.e, 3B001.f, 3C001, 3C002, 3D002 (limited to “software” specially designed for the “use” of stored program controlled items classified under ECCN 3B001) * Applied Materials South East Asia Pte. Ltd.—Shanghai Depot, c/o Shanghai Applied Materials Technical Service Center, No. 2667 Zuchongzhi Road, Shanghai, China 201203
  • * Applied Materials South East Asia Pte. Ltd.—Beijing Depot, c/o Beijing Applied Materials Technical Service Center, No. 1 North Di Sheng Street, BDA, Beijing, China 100176.
  • 72 FR 59164, 10/19/07. 74 FR 19382, 4/29/09. 75 FR 27185, 5/14/10. 77 FR 10953, 2/24/12. 80 FR, [INSERT PAGE NUMBER], 10/28/15.
    * Applied Materials South East Asia Pte. Ltd.—Wuxi Depot, c/o Sinotrans Jiangsu Fuchang Logistics Co., Ltd., 1 Xi Qin Road, Wuxi Export Processing Zone, Wuxi, Jiangsu, China 214028. * Applied Materials South East Asia Pte. Ltd.—Wuhan Depot, c/o Wuhan Optics Valley Import & Export Co., Ltd., No. 101 Guanggu Road, East Lake High-Tec Development Zone, Wuhan, Hubei, China 430074. * Applied Materials (China), Inc.—Shanghai Depot, No. 2667, Zuchongzhi Road, Shanghai, China 201203. * Applied Materials (China), Inc.—Beijing Depot, No. 1 North Di Sheng Street, BDA, Beijing, China 100176. These Items Authorized for the Applied Materials Destination Identified by two asterisks (**): 2B006.b, 2B230, 2B350.g.3, 2B350.i, 3B001.a, 3B001.b, 3B001.c, 3B001.e, 3B001.f, 3C001, 3C002, 3D002 (limited to “software” specially designed for the “use” of stored program controlled items classified under ECCN 3B001), and 3E001 (limited to “technology” according to the General Technology Note for the “development” or “production” of items controlled by ECCN 3B001) ** Applied Materials (Xi'an) Ltd., No. 28 Xin Xi Ave., Xi'an High Tech Park, Export Processing Zone, Xi'an, Shaanxi, China 710075 This item is authorized for those Applied Materials Destination Identified by three asterisks (***): 3E001 (limited to “technology” according to the General Technology Note for the “development” or “production” of items controlled by ECCN 3B001) *** Applied Materials (China), Inc.—Headquarters, 1388 Zhangdong Road, Bldg. 22, Zhangjiang Hi-Tech Park, Pudong, Shanghai, 201203, China *         *         *         *         *         *         *
    Dated: October 21, 2015. Matthew S. Borman, Deputy Assistant Secretary for Export Administration.
    [FR Doc. 2015-27442 Filed 10-27-15; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 197 [Docket ID: DoD-2013-OS-0108] RIN 0790-AJ07 Historical Research in the Files of the Office of the Secretary of Defense (OSD) AGENCY:

    Department of Defense.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule updates and clarifies procedures regarding the review and accessibility to records and information in the custody of the Secretary of Defense and the OSD Components. The purpose of this rule is to provide such guidance to former Cabinet level officials and former Presidential appointees (FPAs), including their personnel, aides, and official researchers.

    DATES:

    This rule is effective November 27, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Ronald R. McCully, 571-372-0473.

    SUPPLEMENTARY INFORMATION: I. Executive Summary A. Purpose of the Regulatory Action

    a. The Office of the Secretary of Defense (OSD) is issuing a final rule that would update Part 197.5 of Title 32, Code of Federal Regulations. This final rule updates and clarifies procedures regarding the review and accessibility to records and information in the custody of the Secretary of Defense and the OSD Components. The purpose of this rule is to provide such guidance to former Cabinet level officials and former Presidential appointees (FPAs), including their personnel, aides, and official researchers.

    b. In accordance with Title 5 of the United States Code, “Government Organization and Employees,” this rule updates procedures for the programs that permit authorized personnel to perform historical research in records created by or in the custody of Office of the Secretary of Defense and its components consistent with federal regulations.

    B. Summary of the Major Provisions of the Regulatory Action In Question

    This final rule updates and clarifies procedures regarding the review and accessibility to records and information in the custody of the Secretary of Defense and the OSD Components. The purpose of this rule is to provide such guidance to former Cabinet level officials and former Presidential appointees (FPAs), including their personnel, aides, and official researchers.

    1. Explanation of FOIA Exemptions and Classification Categories: Explanation of restrictions applicable to the public's request for information within OSD files.

    2. Responsibilities: Outlines the responsibilities of Director of Administration and Management (D&AM); OSD Records Administrator, and the OSD Components.

    3. Procedures for Historical Researchers Permanently Assigned Within the Executive Branch Working on Official Projects: Updates and outlines procedures for access to information held within OSD files for historical research.

    4. Procedures for the Department of State (DoS) Foreign Relations of the United States (FRUS) Series: Updates and outlines for official researchers of the DOS to access information within OSD Files.

    5. Procedures for Historical Researchers Not Permanently Assigned to the Executive Branch: Updates and outlines procedures for Non DoD and executive branch personnel to access information within OSD files for historical research.

    6. Procedures for Document Review for the FRUS Series: Updates and outlines procedures for reviewing FRUS information within OSD files for historical research.

    7. Procedures for Copying Documents: Updates and outlines procedures for copying information within OSD files for historical research.

    8. General Guidelines for Researching OSD Records: Updates and outlines procedures for researching information within OSD files for historical research.

    9. General Guidelines for Researching OSD Records: Updates and outlines guidelines applicable to researchers while reviewing OSD files.

    C. Costs and Benefits

    Annual yearly cost vary and are dependent on the number of researchers requesting access to DoD owned information, the volume of information requiring review and/or declassification and other operational constraints within a given FY.

    Cost: Cost estimates use actual data for 2012 per hour. Cost is aggregated based on average rank (military), grade (civilian) and time in service for personnel qualified for oversight of researchers within the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA area.

    Military = Rank 05 with 10+ years of time in service Civilian = Grade GS-13, Step 5+ with minimum 5 years of time in service Military = $39.77 per hour Civilian = $48.51 per hour

    Benefit: This allows the government to assert positive control over access to classified and unclassified information requested for research purposes. DoD information intended for public release that pertains to military matters, national security issues, or subjects of significant concern to the DoD shall be reviewed for clearance prior to release.

    II. Public Comments

    On Thursday, May 8, 2014 (79 FR 26381-26391), the Department of Defense published a proposed rule requesting public comment. At the end of the 60-day public comment period, 1 comment was received.

    Comment: OGIS commends OSD for providing access guidance to former Cabinet-level officials and former Presidential appointees (FPAs), including their personnel, aides, and official researchers, particularly in regard to the nine FOIA exemptions, summarized in the “Table—Explanation of FOIA Exemptions.”

    The Table describes Exemption (b)(4) as protecting “trade secrets and commercial or financial information obtained from a private source which would cause substantial competitive harm to the source if disclosed.” (Emphasis added) OGIS notes that Exemption 4 applies to material obtained from a variety of sources, both public and private. Such sources may include “state governments, agencies of foreign governments, and Native American tribes or nations,” according to the Department of Justice Guide to the Freedom of Information Act, http://www.justice.gov/oip/foia_guide09/exemption4.pdf#_PAGE1.

    As such, OGIS suggests clarifying by changing “from a private source” to “a non-U.S. Government source.”

    Response: OSD concurs and, in consultation with the OSD FOIA Office, we will include in the next revision or update of the regulation.

    III. Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

    Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” because the rule does not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

    Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

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

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

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

    It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

    Executive Order 13132, “Federalism”

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

    List of Subjects in 32 CFR Part 197

    Historical records, Research.

    Accordingly, 32 CFR part 197 is revised to read as follows:

    PART 197—HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE SECRETARY OF DEFENSE (OSD) Sec. 197.1 Purpose. 197.2 Applicability. 197.3 Definitions. 197.4 Policy. 197.5 Responsibilities. 197.6 Procedures. Appendix A to Part 197—Explanation of FOIA Exemptions and Classification Categories Authority:

    5 U.S.C. 301, Executive Order 13526, 5 U.S.C. 552b, and Pub. L. 102-138.

    § 197.1 Purpose.

    This part, in accordance with the authority in DoD Directive 5110.4, implements policy and updates procedures for the programs that permit authorized personnel to perform historical research in records created by or in the custody of Office of the Secretary of Defense (OSD) consistent with Executive Order 13526; DoD Manual 5230.30, “DoD Mandatory Declassification Review (MDR) Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/523030m.pdf); 32 CFR part 286; 32 CFR part 310; DoD Manual 5200.01, “DoD Information Security Program” Volumes 1-4 (available at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol2.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol3.pdf, and http://www.dtic.mil/whs/directives/corres/pdf/520001_vol4.pdf); 36 CFR 1230.10 and 36 CFR part 1236; DoD Directive 5230.09, “Clearance of DoD Information for Public Release” (available at http://www.dtic.mil/whs/directives/corres/pdf/523009p.pdf); and 32 CFR 197.5.

    § 197.2 Applicability.

    This part applies to:

    (a) The Office of the Secretary of Defense (OSD), the Defense Agencies, and the DoD Field Activities in the National Capital Region that are serviced by Washington Headquarters Services (WHS) (referred to collectively in this part as the “WHS-Serviced Components”).

    (b) All historical researchers as defined in § 197.3.

    (c) Cabinet Level Officials, Former Presidential Appointees (FPAs) to include their personnel, aides and researchers, seeking access to records containing information they originated, reviewed, signed, or received while serving in an official capacity.

    § 197.3 Definitions.

    The following definitions apply to this part:

    Access. The availability of or the permission to consult records, archives, or manuscripts. The ability and opportunity to obtain classified, unclassified, or administratively controlled information or records.

    Electronic records. Records stored in a form that only a computer can process and satisfies the definition of a federal record, also referred to as machine-readable records or automatic data processing records (including email).

    Historical researchers or requestors. A person approved to conduct research in OSD files for historical information to use in a DoD approved project (e.g., agency historical office projects, books, articles, studies, or reports), regardless of the person's employment status. Excluded are Military personnel assigned to OSD; OSD employees, contractors, and students conducting research in response to academic requirements.

    Records (also referred to as federal records or official records). All books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the U.S. Government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the U.S. Government or because of the informational value of data in them.

    § 197.4 Policy.

    It is OSD policy that:

    (a) Pursuant to Executive Order 13526, anyone requesting access to classified material must possess the requisite security clearance.

    (b) Members of the public seeking the declassification of DoD documents under the provisions of section 3.5 of Executive Order 13526 will contact the appropriate OSD Component as listed in DoD Manual 5230.30.

    (c) Records and information requested by FPA and approved historical researchers will be accessed at a facility under the control of the National Archives and Records Administration (NARA), NARA's Archives II in College Park, Maryland, a Presidential library, or an appropriate U.S. military facility or a DoD activity in accordance with Vol 3 of DoD Manual 5200.01, “DoD Information Security Program,” February 24, 2012, as amended.

    (d) Access to records and information will be limited to the specific records within the scope of the proposed research request over which OSD has authority and to any other records for which the written consent of other agencies with authority has been granted in accordance with Vol 3 of DoD Manual 5200.01, “DoD Information Security Program,” February 24, 2012, as amended.

    (e) Access to unclassified OSD Component records and information will be permitted consistent with the restrictions of the exemptions of 5 U.S.C. 552(b) (also known and referred to in this part as the “Freedom of Information Act” (FOIA), 32 CFR part 286, § 197.5 of this part, and consistent with 32 CFR part 310. The procedures for access to classified information will be used if the requested unclassified information is contained in OSD files whose overall markings are classified.

    (f) Except as otherwise provided in DoD Manual 5200.01 volume 3, no person may have access to classified information unless that person has been determined to be trustworthy and access is essential to the accomplishment of a lawful and authorized purpose.

    (g) Persons outside the Executive Branch who are engaged in approved historical research projects may be granted access to classified information, consistent with the provisions of Executive Order 13526 and DoD Manual 5200.01 volume 1 provided that the OSD official with classification jurisdiction over that information grants access.

    (h) Contractors working for Executive Branch agencies may be allowed access to classified OSD Component files provided the contractors meet all the required criteria for such access as an historical researcher including the appropriate level of personnel security clearance set forth in paragraphs (a) and (i) of this section. No copies of OSD records and information may be released directly to the contractors. The Washington Headquarters Services Records and Declassification Division (WHS/RDD) will be responsible for ensuring that the contractor safeguards the documents and the information is only used for the project for which it was requested per section 4.1 of Executive Order 13526, “Classified National Security Information,” December 29, 2009.

    (i) All DoD-employed requesters, to include DoD contractors, must have critical nuclear weapons design information (CNWDI) to access CNWDI information. All other non DoD and non-Executive Branch personnel must have a Department of Energy-issued “Q” clearance to access CNWDI information in accordance with DoD Manual 5220.22, “National Industrial Security Program Operating Manual (NISPOM),” February 28, 2006, as amended.

    (j) The removal of federal records and information from OSD custody is not authorized; this includes copies and email according to 36 CFR 1230.10. Copies of records and information that are national security classified will remain under the control of the agency.

    (k) Access for FPAs is limited to records they originated, reviewed, signed, or received while serving as Presidential appointees, unless there is another basis for providing access in accordance with Vol 3 of DoD Manual 5200.01, “DoD Information Security Program,” February 24, 2012, as amended.

    (l) Authorization is required from all agencies whose classified information is, or is expected to be, in the requested files prior to granting approval for access. Separate authorizations for access to records and information maintained in OSD Component office files or at the federal records centers will not be required in accordance with Vol 3 of DoD Manual 5200.01, “DoD Information Security Program,” February 24, 2012, as amended.

    § 197.5 Responsibilities.

    (a) The Director of Administration (DA), Office of the Deputy Chief Management Officer (ODCMO), or designee is the approval authority for access to DoD information in OSD Component files and in files at the National Archives, Presidential libraries, and other similar institutions in accordance with DoD Directive 5110.4 and DoD Manual 5230.30.

    (b) OSD Records Administrator. Under the authority, direction, and control of the DA, ODCMO, the OSD Records Administrator:

    (1) Exercises approval authority for research access to OSD and WHS Serviced Components records, information, and the Historical Research Program.

    (2) Maintains records necessary to process and monitor each case.

    (3) Obtains all required authorizations.

    (4) Obtains, when warranted, the legal opinion of the General Counsel of the Department of Defense regarding the requested access.

    (5) Coordinates, with the originator, on the public release review on documents selected by the researchers for use in unclassified projects in accordance with DoD Directive 5230.09 and DoD Instruction 5230.29, “Security and Policy Review of DoD Information for Public Release” (available at http://www.dtic.mil/whs/directives/corres/pdf/523029p.pdf).

    (6) Coordinates requests with the OSD Historian.

    (7) Provides prospective researchers the procedures necessary for requesting access to OSD Component files.

    (c) The WHS-serviced Components heads, when requested:

    (1) Determine whether access is for a lawful and authorized government purpose or in the interest of national security.

    (2) Determine whether the specific records requested are within the scope of the proposed historical research.

    (3) Determine the location of the requested records.

    (4) Provide a point of contact to the OSD Records Administrator.

    § 197.6 Procedures.

    (a) Procedures for historical researchers permanently assigned within the Executive Branch working on official projects. (1) In accordance with § 197.5, the WHS-serviced Components heads, when requested, will:

    (i) Make a written determination that the requested access is essential to the accomplishment of a lawful and authorized U.S. Government purpose, stating whether the requested records can be made available. If disapproved, cite specific reasons.

    (ii) Provide the location of the requested records, including accession and box numbers if the material has been retired to the Washington National Records Center (WNRC).

    (iii) Provide a point of contact for liaison with the OSD Records Administrator if any requested records are located in OSD Component working files.

    (2) The historical researcher or requestor will:

    (i) Submit a request for access to OSD files to: OSD Records Administrator, WHS/Records and Declassification Division, 4800 Mark Center Drive, Suite 02F09-02, Alexandria, VA 22350-3100.

    (ii) All requests must be signed by an appropriate official and must contain:

    (A) The name(s) of the researcher(s) and any assistant(s), level of security clearance, and the federal agency, institute, or company to which the researcher is assigned.

    (B) A statement on the purpose of the project, including whether the final product is to be classified or unclassified.

    (C) An explicit description of the information being requested and, if known, the originating office, so that the identification and location of the information may be facilitated.

    (D) Appropriate higher authorization of the request.

    (E) Ensure researcher's security manager or personnel security office verifies his or her security clearances in writing to the OSD Records Administrator's Security Manager.

    (iii) Maintain the file integrity of the records being reviewed, ensuring that no records are removed and that all folders are replaced in the correct box in their proper order.

    (iv) Make copies of any documents pertinent to the project, ensuring that staples are carefully removed and that the documents are re-stapled before they are replaced in the folder.

    (v) Submit the completed manuscript for review prior to public presentation or publication to: WHS/Chief, Security Review Division, Office of Security Review, 1155 Defense Pentagon, Washington, DC 20301-1155.

    (vi) If the requester is an official historian of a federal agency requiring access to DoD records at the National Archives facilities or a Presidential library, the requested must be addressed directly to the pertinent facility with an information copy sent to the OSD Records Administrator. The historian's security clearances must be verified to the National Archives or the Presidential library.

    (3) The use of computers, laptops, computer tablets, personal digital assistants, recorders, or similar devices listed in § 197.6(f) is prohibited. Researchers will use letter-sized paper (approximately 81/2 by 11 inches), writing on only one side of the page. Each page of notes must pertain to only one document.

    (4) The following applies to all notes taken during research:

    (i) All notes are considered classified at the level of the document from which they were taken.

    (ii) Indicate at the top of each page of notes the document:

    (A) Originator.

    (B) Date.

    (C) Subject (if the subject is classified, indicate the classification).

    (D) Folder number or other identification.

    (E) Accession number and box number in which the document was found.

    (F) Security classification of the document.

    (iii) Number each page of notes consecutively.

    (iv) Leave the last 11/2 inches on the bottom of each page of notes blank for use by the reviewing agencies.

    (v) Ensure the notes are legible, in English, and in black ink.

    (vi) All notes must be given to the staff at the end of each day. The facility staff will forward the notes to the OSD Records Administrator for an official review and release to the researcher.

    (5) The OSD Records Administrator will:

    (i) Process all requests from Executive Branch employees requesting access to OSD Component files for official projects.

    (ii) Determine which OSD Component originated the requested records and, if necessary, request an access determination from the OSD Component and the location of the requested records, including but not limited to electronic information systems, databases or accession number and box numbers if the hardcopy records have been retired offsite.

    (iii) Request authorization for access from other OSD Component as necessary.

    (A) Official historians employed by federal agencies may have access to the classified information of any other agency found in DoD files, as long as authorization for access has been obtained from these agencies.

    (B) If the requester is not an official historian, authorization for access must be obtained from the Central Intelligence Agency (CIA), National Security Council (NSC), Department of State (DOS), and any other non-DoD agency whose classified information is expected to be found in the files to be accessed.

    (iv) Make a written determination as to the researcher's trustworthiness based on the researcher having been issued a security clearance.

    (v) Compile all information on the request for access to classified information, to include evidence of an appropriately issued personnel security clearance, and forward the information to the DA, ODCMO; OSD Component or designee, who will make the access determination.

    (vi) Notify the researcher of the authorization and conditions for access to the requested records or of the denial of access and the reason(s).

    (vii) Ensure that all conditions for access and release of information for use in the project are met.

    (viii) Make all necessary arrangements for the researcher to visit the review location and review the requested records.

    (ix) Provide all requested records and information under OSD control in electronic formats consistent with 36 CFR part 1236. For all other information, a staff member will be assigned to supervise the researcher's copying of pertinent documents at the assigned facility.

    (x) If the records are maintained in the OSD Component's working files, arrange for the material to be converted to electronic format for the researchers to review.

    (xi) Notify the National Archives, Presidential library, or military facility of the authorization and access conditions of all researchers approved to research OSD records held in those facilities.

    (b) Procedures for the DOS Foreign Relations of the United States (FRUS) series. (1) The DOS historians will:

    (i) Submit requests for access to OSD files. The request should list the names and security clearances for the historians doing the research and an explicit description, including the accession and box numbers, of the files being requested. Submit request to: OSD Records Administrator, WHS/Records and Declassification Division, 4800 Mark Center Dr, Suite 02F09-02, Alexandria, VA 22380-2100.

    (ii) Submit to the OSD Records Administrator requests for access for members of the Advisory Committee on Historical Diplomatic Documentation to documents copied by the DOS historians for the series or the files reviewed to obtain the documents.

    (iii) Request that the DOS Diplomatic Security staff verify all security clearances in writing to the OSD Records Administrator's Security Manager.

    (iv) Give all document copies to the OSD Records Administrator staff member who is supervising the copying as they are made.

    (v) Submit any OSD documents desired for use or pages of the manuscript containing OSD classified information for declassification review prior to publication to the Chief, Security Review Division at: WHS/Chief, Security Review Division, Office of Security Review, 1155 Defense Pentagon, Washington, DC 20301-1155.

    (2) The OSD Records Administrator will:

    (i) Determine the location of the records being requested by the DOS for the FRUS series according to Title IV of Public Law 102-138, “The Foreign Relations of the United States Historical Series.”

    (ii) Act as a liaison with the CIA, NSC, and any other non-OSD agency for access by DOS historians to records and information and such non-DoD agency classified information expected to be interfiled with the requested OSD records.

    (iii) Obtain written verification from the DOS Diplomatic Security staff of all security clearances, including “Q” clearances.

    (iv) Make all necessary arrangements for the DOS historians to access, review, and copy documents selected for use in their research in accordance with procedures in accordance with § 197.6(a).

    (v) Provide a staff member to supervise document copying in accordance with the guidance provided in § 197.6(d) of this part.

    (vi) Compile a list of the documents that were copied by the DOS historians.

    (vii) Scan and transfer copies to DOS in NARA an approved electronic format.

    (viii) Submit to the respective agency a list of CIA and NSC documents copied and released to the DOS historians.

    (ix) Process DOS Historian Office requests for members of the Advisory Committee on Historical Diplomatic Documentation with appropriate security clearances to have access to documents copied and used by the DOS historians to compile the FRUS series volumes or to the files that were reviewed to obtain the copied documents. Make all necessary arrangements for the Advisory Committee to review any documents that are at the WNRC.

    (c) Procedures for historical researchers not permanently assigned to the Executive Branch. (1) The WHS-serviced Components heads, when required, will:

    (i) Recommend to the DA, ODCMO, or his or her designee, approval or disapproval of requests to access OSD information. State whether access to, release, and clearance of the requested information is in the interest of national security and whether the information can be made available. If disapproval is recommended, specific reasons should be cited.

    (ii) Provide the location of the requested information, including but not limited to the office, component, information system or accession and box numbers for any records that have been retired to the WNRC.

    (iii) Provide a point of contact for liaison with the OSD Records Administrator if any requested records are located in OSD Component working files.

    (2) The OSD Records Administrator will:

    (i) Process all requests from non-Executive Branch researchers for access to OSD or WHS-serviced Components files. Certify via the WHS Security Officer that the requester has the appropriate clearances.

    (ii) Determine which OSD Component originated the requested records and, as necessary, obtain written recommendations for the research to review the classified information.

    (iii) Obtain prior authorization to review their classified information from the DOS, CIA, NSC, and any other agency whose classified information is expected to be interfiled with OSD records.

    (iv) Obtain agreement from the researcher(s) and any assistant(s) that they will comply with conditions governing access to the classified information (see Figure to § 197.6).

    ER28OC15.012 ER28OC15.013 ER28OC15.014

    (v) If the requester is an FPA, submit a memorandum after completion of the actions described in this part to WHS, Human Resources Directorate, Security Operations Division, requesting the issuance (including an interim) or reinstatement of an inactive security clearance for the FPA and any assistant and a copy of any signed form letters. The Security Division will contact the researcher(s) and any assistant(s) to obtain the forms required to reinstate or initiate the personnel security investigation to obtain a security clearance. Upon completion of the adjudication process, notify the OSD Records Administrator in writing of the reinstatement, issuance, or denial of a security clearance.

    (vi) Make a written determination as to the researcher's trustworthiness based on his or her having been issued a security clearance.

    (vii) Compile all information on the request for access to classified information, to include either evidence of an appropriately issued or reinstated personnel security clearance. Forward the information to the DA, ODCMO or designee, who will make the final determination on the applicant's eligibility for access to classified OSD or WHS-serviced Component files. If the determination is favorable, the DA, ODCMO or designee will then execute an authorization for access, which will be valid for not more than 2 years.

    (viii) Notify the researcher of the approval or disapproval of the request. If the request has been approved, the notification will identify the files authorized for review and specify that the authorization:

    (A) Is approved for a predetermined time period.

    (B) Is limited to the designated files.

    (C) Does not include access to records and/or information of other federal agencies, unless such access has been specifically authorized by those agencies.

    (ix) Make all necessary arrangements for the researcher to visit the WNRC and review any requested records that have been retired there, to include written authorization, conditions for the access, and a copy of the security clearance verification.

    (x) If the requested records are at the WNRC, make all necessary arrangements for the scanning of documents.

    (xi) If the requested records are maintained in OSD or WHS-serviced Component working files, make arrangements for the researcher to review the requested information and, if authorized, copy pertinent documents in the OSD or WHS-serviced Component's office. Provide the OSD Component with a copy of the written authorization and conditions under which the access is permitted.

    (xii) Compile a list of all the documents requested by the researcher.

    (xiii) Coordinate the official review on all notes taken and documents copied by the researcher.

    (xiv) If the classified information to be reviewed is on file at the National Archives, a Presidential library, or other facility, notify the pertinent facility in writing of the authorization and conditions for access.

    (3) The researcher will:

    (i) Submit a request for access to OSD Component files to OSD Records Administrator, WHS/Records and Declassification Division, 4800 Mark Center Drive, Suite 02F09-02, Alexandria VA 22350-3100. The request must contain:

    (A) As explicit a description as possible of the information being requested so that identification and location of the information may be facilitated.

    (B) A statement as to how the information will be used, including whether the final project is to be classified or unclassified.

    (C) A statement as to whether the researcher has a security clearance, including the level of clearance and the name of the issuing agency.

    (D) The names of any persons who will be assisting the researcher with the project. If the assistants have security clearances, provide the level of clearance and the name of the issuing agency.

    (E) A signed copy of their agreement (see Figure) to safeguard the information and to authorize a review of any notes and manuscript for a determination that they contain no classified information. Each project assistant must also sign a copy of the letter.

    (F) The forms necessary to obtain a security clearance, if the requester is an FPA without an active security clearance. Each project assistant without an active security clearance will also need to complete these forms. If the FPA or assistant have current security clearances, their personnel security office must provide verification in writing to the OSD Records Administrator's Security Manager.

    (ii) Maintain the integrity of the files being reviewed, ensuring that no records are removed and that all folders are replaced in the correct box in their proper order.

    (iii) If copies are authorized, give all copies to the custodian of the files at the end of each day. The custodian will forward the copies of the documents to the OSD Records Administrator for a declassification review and release to the requester.

    (A) For records at the WNRC, if authorized, provide the requested information in an electronic format. Review will occur only in the presence of an OSD Records Administrator staff member.

    (B) Ensure that all staples are carefully removed and that the documents are re-stapled before the documents are replaced in the folder.

    (C) Submit all classified and unclassified notes made from the records to the custodian of the files at the end of each day of research. The custodian will transmit the notes to the OSD Records Administrator for an official review and release to the researcher at the completion of researcher's project.

    (D) Submit the final manuscript to the OSD Records Administrator for forwarding to the Chief, Security Review Division, Office of Security Review, for a security review and public release clearance in accordance with DoD Directive 5230.09 and DoD 5220.22-M, “National Industrial Security Program Operating Manual (NISPOM)” (available at http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf) prior to publication, presentation, or any other public use.

    (d) Procedures for document review for the FRUS series. (1) When documents are being reviewed, a WHS/RDD staff member must be present at all times.

    (2) The records maybe reviewed at a Presidential Library Archives II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate military facility. All requested information will remain under the control of the WHS/RDD staff until a public release review is completed, and then provided in electronic formats.

    (3) If the requested records have been reviewed in accordance with the automatic declassification provisions of Executive Order 13526, any tabs removed during the research and copying must be replaced in accordance with DoD Manual 5200.01 volume 2.

    (4) The number of boxes to be reviewed will determine which of the following procedures will apply. The WHS/RDD staff member will make that determination at the time the request is processed. When the historian completes the review of the boxes, he or she must contact the WHS/RDD to establish a final schedule for scanning the documents. To avoid a possible delay, a tentative schedule will be established at the time that the review schedule is set.

    (i) For 24 boxes or fewer, review and scanning will take place simultaneously. Estimated time to complete scanning is 7 work days.

    (ii) For 25 boxes or more, the historian will review the boxes and mark the documents that are to be scanned using WHS/RDD authorized reproduction tabs.

    (iii) If the review occurs at facilities that OSD does not control ownership of the document, the documents must be given to the WHS/RDD staff member for transmittal for processing.

    (5) WHS/RDD will notify the historian when the documents are ready to be picked up. All administrative procedures for classified material transfers will be followed in accordance with DoD Manual 5200.01 volume 1 and DoD 5220.22-M and appropriate receipt for unclassified information will be used.

    (e) Procedures for copying documents. (1) The records will be reviewed and copied at a Presidential Library, Archives II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate U.S. military facility.

    (2) If the requested records have been reviewed in accordance with the automatic declassification provisions of Executive Order 13526 any tabs removed during the research and copying must be replaced in accordance with DoD Manual 5200.01 volume 2.

    (3) The researcher will mark the documents that he or she wants to copy using WHS/RDD authorized reproduction tabs.

    (4) Any notes taken during the review process must be given to the WHS/RDD staff member present for transmittal to the WHS/RDD.

    (5) All reproduction charges are to the responsibility of the researcher.

    (6) All documents requested will be copied to an approved electronic format by WHS/RDD staff after official review.

    (i) The researcher will need to bring paper, staples, staple remover, and stapler.

    (ii) When the researcher completes the review of the boxes, he or she must contact the WHS/RDD to establish a final schedule for scanning the requested documents.

    (iii) When the documents are scanned, the WHS/RDD will notify the researcher.

    (iv) All questions pertaining to the review, copying, or transmittal of OSD documents must be addressed to the WHS/RDD staff member.

    (f) General guidelines for researching DoD records. DoD records and information are unique and often cannot be replaced should they be lost or damaged. In order to protect its collections and archives, the OSD Records Administrator has set rules that researchers must follow.

    (1) Researchers will work in room assigned. Researchers are not allowed in restricted areas.

    (2) Special care must be taken in handling all records. Records may not be leaned on, written on, folded, traced from, or handled in any way likely to damage them.

    (3) Records should be kept in the same order in which they are presented.

    (4) Items that may not be brought into these research areas include, but are not limited to:

    (i) Briefcases.

    (ii) Cases for equipment (laptop computers).

    (iii) Computers. This includes laptops, tablet computers, personal digital assistants, smart phones, and other similar devices.

    (iv) Cellular phones.

    (v) Computer peripherals including handheld document scanners and digital or analog cameras.

    (vi) Containers larger than 9.5″ × 6.25″ (e.g., paper bags, boxes, backpacks, shopping bags, and sleeping bags).

    (vii) Food, drinks (includes bottled water) and cigarettes, cigars, or pipes.

    (viii) Handbags or purses larger than 9.5″ × 6.25″.

    (ix) Luggage.

    (x) Musical instruments and their cases.

    (xi) Newspapers.

    (xii) Outerwear (e.g., raincoats and overcoats).

    (xiii) Pets (exception for service animals, i.e., any guide dog or signal dog that is trained to provide a service to a person with a disability).

    (xiv) Scissors or other cutting implements.

    (xv) Televisions and audio or video equipment.

    (xvi) Umbrellas.

    (5) Eating, drinking, or smoking is prohibited.

    Appendix A to Part 197—Explanation of FOIA Exemptions and Classification Categories

    (a) Explanation of FOIA Exemptions and Classification Categories—(1) Explanation of FOIA Exemptions. Exemptions and their explanations are provided in the Table to Appendix A. See chapter III of 32 CFR part 286 for further information.

    Table to Appendix A—Explanation of FOIA Exemptions Exemption Explanation (b)(1) Applies to records and information currently and properly classified in the interest of national security. (b)(2) Applies to records related solely to the internal personnel rules and practices of an agency. (b)(3) Applies to records and information protected by another law that specifically exempts the information from public release. (b)(4) Applies to records and information on trade secrets and commercial or financial information obtained from a private source which would cause substantial competitive harm to the source if disclosed. (b)(5) Applies to records and information of internal records that are deliberative in nature and are part of the decision making process that contain opinions and recommendations. (b)(6) Applies to records or information the release of which could reasonably be expected to constitute a clearly unwarranted invasion of the personal privacy of individuals. (b)(7) Applies to records or information compiled for law enforcement purposes that could: (a) Reasonably be expected to interfere with law enforcement proceedings; (b) deprive a person of a right to a fair trial or impartial adjudication; (c) reasonably be expected to constitute an unwarranted invasion of the personal privacy of others; (d) disclose the identity of a confidential source; (e) disclose investigative techniques and procedures; or (f) reasonably be expected to endanger the life or physical safety of any individual. (b)(8) Applies to records and information for the use of any agency responsible for the regulation or supervision of financial institutions. (b)(9) Applies to records and information containing geological and geophysical information (including maps) concerning wells.

    (2) Classification Categories. Information will not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of Executive Order 13526, and it pertains to one or more of the following:

    (i) Military plans, weapons systems, or operations;

    (ii) Foreign government information;

    (iii) Intelligence activities (including covert action), intelligence sources or methods, or cryptology;

    (iv) Foreign relations or foreign activities of the United States, including confidential sources;

    (v) Scientific, technological, or economic matters relating to the national security;

    (vi) U.S. Government programs for safeguarding nuclear materials or facilities;

    (vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

    (viii) The development, production, or use of weapons of mass destruction.

    (b) [Reserved]

    Dated: October 22, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2015-27393 Filed 10-27-15; 8:45 am] BILLING CODE 5001-06-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2014-07] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits circumvention of technological measures that control access to copyrighted works, codified in section 1201(a)(1) of title 17 of the United States Code. As required under the statute, the Register of Copyrights, following a public proceeding, submitted a Recommendation concerning proposed exemptions to the Librarian of Congress. After careful consideration, the Librarian adopts final regulations based upon the Register's Recommendation.

    DATES:

    Effective October 28, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, by email at [email protected] or by telephone at 202-707-8350; Sarang V. Damle, Deputy General Counsel, by email at [email protected] or by telephone at 202-707-8350; or Stephen Ruwe, Assistant General Counsel, by email at [email protected] or by telephone at 202-707-8350.

    SUPPLEMENTARY INFORMATION:

    The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this sixth triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of certain classes of such works. This determination is based upon the Recommendation of the Register of Copyrights, which was transmitted to the Librarian on October 8, 2015.1

    1 Register of Copyrights, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights (Oct. 2015) (“Register's Recommendation”).

    The below discussion summarizes the rulemaking proceeding and Register's Recommendation, announces the Librarian's determination, and publishes the regulatory text specifying the exempted classes of works. A more complete discussion of the rulemaking process, the evidentiary record, and the Register's analysis can be found in the Register's Recommendation, which is posted at www.copyright.gov/1201/.

    I. Background A. Statutory Requirements

    Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA, which added a new chapter 12 to title 17 of the U.S. Code, prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In enacting this aspect of the law, Congress observed that technological protection measures (“TPMs”) can “support new ways of disseminating copyrighted materials to users, and . . . safeguard the availability of legitimate uses of those materials by individuals.” 2

    2 Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, at 6 (Comm. Print 1998).

    Section 1201(a)(1) provides in pertinent part that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].” Under the statute, to “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 3 A technological measure that “effectively controls access to a work” is one that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” 4

    3 17 U.S.C. 1201(a)(3)(A).

    4 17 U.S.C. 1201(a)(3)(B).

    Section 1201(a)(1), however, also includes what Congress characterized as a “fail-safe” mechanism,5 which requires the Librarian of Congress, following a rulemaking proceeding, to publish any class of copyrighted works as to which the Librarian has determined that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period, thereby exempting that class from the prohibition for that period.6 The Librarian's determination to grant an exemption is based upon the recommendation of the Register of Copyrights, who conducts the rulemaking proceeding.7 Congress directed the Register, in turn, to consult with the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (“NTIA”), in the course of formulating her recommendation.8

    5See H.R. Rep. No. 105-551, pt. 2, at 36 (1998).

    6See 17 U.S.C. 1201(a)(1).

    7 17 U.S.C. 1201(a)(1)(C).

    8Id.

    The primary responsibility of the Register and the Librarian in the rulemaking proceeding is to assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To do this, the Register develops a comprehensive administrative record using information submitted by interested members of the public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record.

    Under the statutory framework, the Librarian, and thus the Register, must consider “(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” 9 As noted above, the Register must also consult with the Assistant Secretary who oversees NTIA, and report and comment on his views, in providing her Recommendation. Upon receipt of the Recommendation, the Librarian is responsible for promulgating the final rule setting forth any exempted classes of works.

    9Id.

    Significantly, exemptions adopted by rule under section 1201(a)(1) apply only to the conduct of circumventing a technological measure that controls access to a copyrighted work. Other parts of section 1201, by contrast, address the manufacture and provision of—or “trafficking” in—products and services designed for purposes of circumvention. Section 1201(a)(2) bars trafficking in products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file),10 while section 1201(b) bars trafficking in products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner in their works (for example, technology that prevents the work from being reproduced).11 The Librarian of Congress has no authority to adopt exemptions for the anti-trafficking prohibitions contained in section 1201(a)(2) or (b).12

    10 17 U.S.C. 1201(a)(2).

    11 17 U.S.C. 1201(b).

    12See 17 U.S.C. 1201(a)(1)(E) (“Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph.”).

    More broadly, activities conducted under the regulatory exemptions must still comply with other applicable laws, including non-copyright provisions. Thus, while an exemption may specifically reference other laws of particular concern, any activities conducted under an exemption must be otherwise lawful.

    Also significant is the fact that the statute contains certain permanent exemptions to permit specified uses. These include: Section 1201(d), which exempts certain activities of nonprofit libraries, archives, and educational institutions; section 1201(e), which exempts “lawfully authorized investigative, protective, information security, or intelligence activity” of a state or the federal government; section 1201(f), which exempts certain “reverse engineering” activities to facilitate interoperability; section 1201(g), which exempts certain types of research into encryption technologies; section 1201(h), which exempts certain activities to prevent the “access of minors to material on the Internet”; section 1201(i), which exempts certain activities “solely for the purpose of preventing the collection or dissemination of personally identifying information”; and section 1201(j), which exempts certain acts of “security testing” of computers and computer systems.

    B. The Unlocking Consumer Choice and Wireless Competition Act

    In 2014, Congress enacted the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”), effective as of August 1, 2014.13 The Unlocking Act did three things. First, it replaced the exemption adopted in the 2012 triennial proceeding to enable certain wireless telephone handsets (i.e., cellphones) to connect to wireless communication networks—a process commonly known as cellphone “unlocking”—with a broader version of the exemption adopted by the Librarian in 2010. Second, the legislation provided that the circumvention permitted under the reinstated 2010 exemption, as well as any future exemptions to permit wireless telephone handsets or other wireless devices to connect to wireless telecommunications networks, may be initiated by the owner of the handset or device, by another person at the direction of the owner, or by a provider of commercial mobile radio or data services to enable such owner or a family member to connect to a wireless network when authorized by the network operator.14 This directive is permanent, and is now reflected in the relevant regulations.15 Third, the legislation directed the Librarian of Congress to consider as part of the current triennial proceeding whether to “extend” the cellphone unlocking exemption “to include any other category of wireless devices” based upon the recommendation of the Register, who in turn is to consult with the Assistant Secretary.16 Accordingly, as part of this rulemaking proceeding, the Copyright Office solicited and evaluated several proposed unlocking exemptions for devices other than cellphones, as addressed in Proposed Classes 12 through 15 below.

    13 Public Law 113-144, 128 Stat. 1751 (2014). Subsequently, the Librarian adopted regulatory amendments to reflect the new legislation. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Wireless Telephone Handsets, 79 FR 50552 (Aug. 25, 2014) (codified at 37 CFR 201.40(b)(3), (c)).

    14 Unlocking Act sec. 2(a), (c).

    15See 79 FR at 50554; see also 37 CFR 201.40(c).

    16 Unlocking Act sec. 2(b).

    C. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary requirements for the section 1201 rulemaking proceeding, as discussed in greater detail in the Register's Recommendation.17 Those who seek an exemption from the prohibition on circumvention bear the burden of establishing that the requirements for granting an exemption have been satisfied by a preponderance of the evidence. In addition, the basis for an exemption must be established de novo in each triennial proceeding. That said, however, where a proponent is seeking the readoption of an existing exemption, it may attempt to satisfy its burden by demonstrating that the conditions that led to the adoption of the prior exemption continue to exist today (or that new conditions exist to justify the exemption). Assuming the proponent succeeds in making such a demonstration, it is incumbent upon any opponent of that exemption to rebut such evidence by showing that the exemption is no longer justified.

    17See Register's Recommendation at 13-18.

    To establish a case for an exemption, proponents must show at a minimum (1) that uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses. In addition, the Librarian must also examine the statutory factors listed in section 1201(a)(1): (1) The availability for use of copyrighted works; (2) the availability for use of works for nonprofit archival, preservation, and educational purposes; (3) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (4) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (5) such other factors as the Librarian considers appropriate. In some cases, weighing these factors requires the consideration of the benefits that the technological measure brings with respect to the overall creation and dissemination of works in the marketplace, in addition to any negative impact.

    Finally, when granting an exemption, section 1201(a)(1) specifies that the exemption adopted as part of this rulemaking must be defined based on “a particular class of works.” 18 Among other things, the determination of the appropriate scope of a “class of works” recommended for exemption may also take into account the adverse effects an exemption may have on the market for or value of copyrighted works. Accordingly, “it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption.” 19

    18 17 U.S.C. 1201(a)(1)(B).

    19 Recommendation of the Register of Copyrights in RM 2005-11, Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies 19 (Nov. 17, 2006).

    II. History of the Sixth Triennial Proceeding

    As the Register explains in the Recommendation, the administrative process employed in the rulemaking was revised for this triennial proceeding. In particular, the Copyright Office implemented certain procedural changes to make the process more accessible and understandable to the public, allow greater opportunity for participants to coordinate their efforts, encourage participants to submit effective factual and legal support for their positions, and reduce administrative burdens on both the participants and the Office. Among other things, the procedural changes included providing commenters with recommended template forms to use when submitting comments, and requiring commenters to submit separate comments for each proposed class.

    On September 17, 2014, the Copyright Office published a Notice of Inquiry (“NOI”) in the Federal Register to initiate the sixth triennial rulemaking proceeding.20 The NOI invited interested parties to submit petitions for proposed exemptions that set forth the essential elements of the exemption. The Office received forty-four petitions for proposed exemptions in response to the NOI.

    20 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 79 FR 55687 (Sept. 17, 2014) (“NOI”).

    Next, on December 12, 2014, the Office issued a Notice of Proposed Rulemaking (“NPRM”) that reviewed and grouped the proposed exemptions set forth in the petitions.21 In the NPRM, the Copyright Office concluded that three of the petitions sought exemptions that could not be granted as a matter of law, and declined to put those proposals forward for public comment.22 The Office grouped the remaining proposed exemptions into twenty-seven proposed classes of works. In some cases, overlapping proposals were merged into a single combined proposed class. In other cases, individual proposals that encompassed multiple proposed uses were subdivided into multiple classes to aid in the process of review. The Office then provided detailed guidance on the submission of comments, including a number of specific legal and factual areas of interest with respect to each proposed class.

    21 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 79 FR 73856, 73859 (Dec. 12, 2014) (“NPRM”).

    22 NPRM, 79 FR at 73859. Each of these petitions sought to permit circumvention of any and all TPMs that constituted “digital rights management” with respect to unspecified types of copyrighted works for the purpose of engaging in unidentified personal and/or consumer uses. Id. The Office explained that these proposed exemptions ran afoul of the statutory requirement that “any exemptions adopted as part of this rulemaking must be defined based on `a particular class of works.' ” Id. (quoting 17 U.S.C. 1201(a)(1)(B) (emphasis added)). The Office thus concluded that “the sweeping type of exemption proposed by these three petitions” could not be granted consistent with the standards of section 1201(a)(1). Id.

    The Office received nearly 40,000 comments in response to the NPRM, the vast majority of which consisted of relatively short statements of support or opposition without substantial legal argument or supporting evidence. A number of the longer submissions included multimedia evidence to illustrate points made in the written comments.

    After receiving and studying the written comments, the Office held seven days of public hearings: In Los Angeles, at the UCLA School of Law, from May 19 to 21, 2015; and in Washington, DC, at the Library of Congress, from May 26 to 29, 2015. The Office heard testimony from sixty-three witnesses at the hearings, and received additional multimedia evidence. After the hearings, the Office issued a number of follow-up questions to participants, and received responses that have been made part of the administrative record.

    As observed by various commenting parties, certain of the proposed exemptions presented issues potentially of concern to the Department of Transportation (“DOT”), the Environmental Protection Agency (“EPA”), and the Food and Drug Administration (“FDA”), and perhaps other regulatory agencies as well. The Copyright Office therefore sent letters to DOT, EPA and FDA informing them of the pendency of the rulemaking proceeding in case they wished to comment on the proposals. In response to these letters, the Office received responses from those agencies, and also from the California Air Resources Board (“California ARB”), which are also included in the record.

    Throughout this triennial proceeding, as required under section 1201(a)(1), the Register has consulted with NTIA. In addition to providing procedural and substantive input throughout the rulemaking process, NTIA was represented along with Copyright Office staff at the public hearings held in Los Angeles and Washington, DC NTIA formally communicated its views on each of the proposed exemptions in recommendations delivered to the Register on September 18, 2015. NTIA's recommendations can be viewed at copyright.gov/1201/2015/2015_NTIA_Letter.pdf.

    III. Summary of Register's Recommendation A. Designated Classes

    Based upon the record in this proceeding, the Register of Copyrights recommends that the Librarian determine that the classes of works described below be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

    1. Proposed Classes 1 to 7: Audiovisual Works—Educational and Derivative Uses 23

    23 The Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 24-106.

    Proponents of Proposed Classes 1 through 7 share the desire to circumvent technological protection measures employed on DVDs, Blu-ray discs and/or by various online streaming services to access motion pictures—a category under the Copyright Act that includes television programs and videos—in order to engage in noninfringing uses. Past rulemakings have granted exemptions relating to uses of motion picture excerpts for commentary or criticism by college and university faculty and staff and by kindergarten through twelfth-grade educators, as well as in noncommercial videos, documentary films, and nonfiction multimedia e-books offering film analysis. Past exemptions have been limited to circumvention of DVDs, online distribution services, and as a result of using screen-capture technology.

    The petitions filed in this rulemaking sought to readopt and to some extent expand the previously granted exemptions, including to encompass Blu-ray discs (on the ground that a high-definition format is required for certain uses), to access audiovisual works that may not be motion pictures (such as video games), to permit the use of more than “short portions” of motion picture excerpts, and to extend to all “fair uses” rather than limiting the uses to criticism or comment. Some proponents sought to expand filmmaking uses to include narrative (or fictional) film, in addition to documentaries. Some proposals were focused on expanding the category of potential users of an exemption, such as to uses by museums, libraries and nonprofits, or by students and faculty participating in massive online open courses (“MOOCs”). The Copyright Office grouped these proposals into seven classes.

    Proposed Class 1: This proposed class would allow college and university faculty and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment.

    Class 1 was proposed by Professor Peter Decherney, the College Art Association, the International Communication Association, and the Society for Cinema and Media Studies (collectively, “Joint Educators”) to allow, for example, film studies professors to circumvent DVDs in order to use motion picture clips in class lectures. A class covering such uses was adopted in the 2010 and 2012 rulemakings. Joint Educators asked that the exemption be expanded to include the ability to circumvent Blu-ray discs, to remove the limitation to “short portions” of motion picture excerpts, and to broaden the class to cover all “audiovisual works” for all “educational purposes.”

    Proposed Class 2: This proposed class would allow kindergarten through twelfth-grade educators and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes.

    Petitions for Proposed Class 2 were submitted by Professor Renee Hobbs and the Library Copyright Alliance (“LCA”), to allow, for example, a high school teacher to circumvent DVDs of various adaptations of Shakespeare's works in order to create a compilation of clips demonstrating the lasting influence of these works. Hobbs and LCA requested that the existing exemption for grades K-12 be expanded to include student uses rather than only uses by educators, to allow circumvention of Blu-ray discs, to remove the limitation to “short portions” of works, and to broaden the class to cover all “audiovisual works” for all “educational purposes.”

    Proposed Class 3: This proposed class would allow students and faculty participating in massive online open courses (“MOOCs”) to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment.

    Joint Educators proposed Class 3, essentially seeking to expand the exemption for college and university faculty and students in Class 1 to include MOOCs, or online distance education courses offered on a broad scale. The exemption would, for example, allow a professor preparing an online lecture about the evolution of Chinese society to circumvent access controls in order to incorporate video clips documenting Chinese history and geography. Joint Educators' proposal included the ability to circumvent Blu-ray discs, to permit use of more than “short portions” of motion picture excerpts, and to allow use of all “audiovisual works” for all “educational purposes.” Joint Educators contended that the prohibition on circumvention of TPMs is inhibiting the introduction of certain types of courses, such as film studies, on MOOC platforms.

    Proposed Class 4: This proposed class would allow educators and learners in libraries, museums and nonprofit organizations to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes.

    Professor Hobbs proposed Class 4 to allow, for example, educators in a community center adult education program to circumvent access controls in order to create video clips for purposes of discussing the portrayal of African-American women in a popular television show. The proposal encompassed “audiovisual works” for all “educational uses,” as well as the ability to circumvent Blu-ray discs. Hobbs expressed concern that the prohibition on circumvention prevents participants in digital and media literacy programs in informal learning settings from engaging in projects similar to those conducted on college and university campuses.

    Proposed Class 5: This proposed class would allow circumvention of access controls on lawfully made and acquired motion pictures used in connection with multimedia e-book authorship.

    Class 5 was jointly proposed by Authors Alliance and Bobette Buster to allow, for example, a sound editor and e-book author to circumvent DVDs or Blu-ray discs to incorporate brief film excerpts in an e-book entitled Listening to Movies. Proponents requested renewal of the previously granted exemption, and expansion of that exemption to encompass any genre of multimedia e-book (as opposed to uses only in nonfiction multimedia e-books offering film analysis), to allow circumvention of Blu-ray discs, to remove the limitation to “short portions” of motion picture excerpts, and to broaden the class to cover all “audiovisual works.” In general, proponents argued that the prohibition on circumvention hinders e-book authors' ability to criticize and comment on audiovisual works, some of which may only be accessible through DVD, Blu-ray or digitally transmitted sources.

    Proposed Class 6: This proposed class would allow circumvention of access controls on lawfully made and acquired motion pictures for filmmaking purposes.

    Class 6 was proposed by the International Documentary Association, Film Independent, Kartemquin Educational Films, Inc., and National Alliance for Media Arts and Culture (collectively, “Joint Filmmakers”) to allow, for example, filmmakers to circumvent access controls on material streamed online in order to incorporate excerpts of news footage into documentaries. The proposal sought readoption of the existing exemption for documentary filmmaking uses, and its expansion to include narrative (or fictional) films, to permit circumvention of Blu-ray discs, and to remove the limitation to short portions of works. Joint Filmmakers stressed that much material is only available on DVD, Blu-ray and digitally transmitted video, and that circumvention of Blu-ray discs is necessary because, among other things, distribution standards require films to incorporate clips of high-definition quality.

    Proposed Class 7: This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the sole purpose of extracting clips for inclusion in noncommercial videos that do not infringe copyright.

    Class 7 was proposed by Electronic Frontier Foundation (“EFF”) and the Organization for Transformative Works. Proponents sought to permit, for example, a fan of James Bond films to circumvent access controls on DVDs of these films in order to incorporate brief excerpts into a noncommercial video commenting on the portrayal of female characters in those films. The proposal sought renewal of the existing exemption, and expansion of that exemption to Blu-ray discs and all “noninfringing” or “fair” uses. Proponents argued that the existing exemption has resulted in the creation of a wide variety of new, noninfringing works, and expansion of that exemption to Blu-ray discs is necessary because, among other things, there is a significant amount of material that can only be found in that format.

    For each exemption, proponents argued that the requested exemption would facilitate fair uses of the accessed works—for example, because of the educational nature of the uses, or because it would permit the creation of a new work of authorship providing commentary on the underlying work. Specifically, Joint Educators argued that teaching, criticism, and commentary are enumerated as favored uses under section 107 and therefore, that the proposed uses in Classes 1 and 3 for colleges, universities, and MOOCs were highly likely to be fair. For Class 2, Hobbs provided examples of educators using film clips as teaching tools in connection with media literacy, history, literature, and film theory, and of students using excerpts in connection with National History Day projects, arguing that these uses were fair. Hobbs also contended that out-of-classroom educational programs should be able to make the same uses in Class 4. Proponents of Class 5 argued that uses of excerpts of motion picture clips in multimedia e-books intended for educational purposes are likely to be fair, citing examples of actual or prospective uses of motion picture excerpts in multimedia e-books for purposes of film criticism or analysis. For Class 6, Joint Filmmakers stated that the proposed uses in both documentary and narrative films are noninfringing fair uses that provide criticism and commentary, education about, and reporting on news and current events—activities that Congress has explicitly identified as fair uses. Finally, Class 7 proponents asserted that the purposes and character of noncommercial videos are highly transformative, and in support, submitted scholarly analysis of remix videos and evidence relating to fan video remixes that purportedly criticize and recontextualize the underlying narrative works.

    For all of these audiovisual classes, the Office received no opposition to the renewal of the current exemptions; instead, opponents opposed expansion of those exemptions. The same parties opposed all seven classes—Joint Creators (representing the Motion Picture Association of America, the Entertainment Software Association (“ESA”) and the Recording Industry Association of America), DVD Copy Control Association, and the Advanced Access Content System Licensing Administrator (“AACS LA”). Opponents voiced parallel concerns across most of these audiovisual classes. In general, they contended that there are viable alternatives to circumvention that are adequate for many of the proposed uses, including clip licensing, screen-capture technology, streaming platforms such as TV Everywhere, disc-to-digital services, and digital rights libraries like UltraViolet. With respect to proposals to expand the exemptions to include Blu-ray discs, AACS LA and Joint Creators argued that the authorized circumvention of DVDs or online material provides a ready alternative to obtain material of sufficiently high quality for all the proposed uses. Opponents also urged that any expansion of the existing exemptions would likely harm the market for DVDs, Blu-ray discs, and other licensed uses.

    Beyond these general points, opponents also made specific arguments concerning the individual proposed classes. In Class 1, opponents urged that alternatives to circumvention, including screen capture, were adequate for classroom uses outside film studies classes. In Class 2, opponents argued that the record lacks persuasive examples of K-12 student projects that require circumvention and that the record did not show a need to access material on Blu-ray discs. Opponents opposed granting any exemption for MOOCs in Class 3 arguing, among other things, that the uses are not likely to be noninfringing because the exemption would allow widespread distribution of works over the internet. With respect to museum, library or nonprofit educational programs in Class 4, opponents argued, among other things, that proponents had failed adequately to demonstrate specific adverse effects flowing from the prohibition on circumvention. In Class 5, opponents urged that no examples were presented to support expanding the exemption to fictional e-books or to circumvention of Blu-ray discs. In Class 6, opponents asserted that an exemption for fictional films would negatively impact the existing market for licensing of film clips. Finally, in Class 7, opponents argued that screen-capture software is an adequate alternative to proposed uses of Blu-ray material in noncommercial remix videos and that the existing regulatory language should be refined so as not to overlap with other classes addressing educational uses.

    NTIA recommended renewing the current exemptions for educational and derivative uses, and expanding those exemptions in several respects. As a general matter, NTIA proposed that all of the exemptions should encompass “motion pictures and similar audiovisual works” on DVDs and Blu-ray discs, or obtained via online distribution services. NTIA rejected proposals to encompass all “noninfringing” or “fair uses,” instead recommending a more tailored approach. In Class 1, NTIA recommended an exemption for educational uses by college and university faculty and students, without limiting it to film studies and other courses requiring close analysis of works, although it did not explain why elimination of that distinction was warranted. In Class 2, NTIA recommended an exemption for K-12 educators, and for students in grades 6-12 engaging in video projects actively overseen by an instructor. In Class 3, NTIA recommended an exemption for MOOCs involving film and media analysis, but not for students enrolled in such MOOCs. In Class 4, NTIA recommended an exemption for instructors and students engaged in digital media and literacy programs in libraries, museums, and nonprofit organizations with an educational mission. In Classes 5 and 7, NTIA proposed renewing the exemptions for nonfiction or educational multimedia e-books offering film analysis, and for noncommercial videos, respectively, and expanding them to include Blu-ray discs, as with the other classes. Finally, in Class 6, NTIA proposed an exemption both for documentary films and for “[n]arrative films portraying real events, where the prior work is used for its biographical or historically significant nature.”

    In general, the Register recommended granting exemptions for almost all of these classes; in each case, the Register concluded that the uses are likely to be fair, that alternatives to circumvention were inadequate, and that the statutory factors taken together weighed in favor of the exemption. In each of Classes 1 through 7, the Register recommended retaining the requirement in the current exemptions that only “short portions” of works be used for purposes of “criticism or comment.” The Register explained that broader exemptions—covering longer portions for purposes of all “fair” or “noninfringing” uses—were unsupported by the record. The Register also explained that the exemptions should provide reasonable guidance to the public in terms of what uses are likely to be fair, while at the same time mitigating undue consequences for copyright owners. The Register also found the record to not support an exemption for “audiovisual works,” as opposed to the somewhat narrower category of “motion pictures,” because proponents had failed to demonstrate a need to circumvent non-motion-picture audiovisual works (such as video games) in any of the proposed classes.

    With respect to Class 1 in particular, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures by college and university faculty and students engaged in film studies classes or other courses requiring close analysis of film and media excerpts. The Register recommended an exemption to facilitate use of screen-capture technology for all types of courses, to address the possibility of circumvention when using this technology. The Register reasoned that this class (and Class 2) should continue to distinguish between purposes requiring close analysis of film and media excerpts and more general educational uses, on the ground that screen-capture technology is an adequate substitute for the latter uses.

    With respect to Class 2, the Register recommended granting an exemption limited to circumvention of DVDs and digital transmissions for educators in grades K-12, including accredited general educational development (“GED”) programs, in film studies or other courses requiring close analysis of film and media excerpts. The Register found, however, that proponents submitted no examples where Blu-ray quality or Blu-ray-unique content was required for uses in K-12 classrooms. The Register also recommended an exemption to facilitate use of screen-capture technologies by educators in all types of courses. The Register found the evidentiary record of proposed uses by K-12 students to be insufficiently well developed to recommend an exemption for DVDs, digital transmissions, or Blu-ray discs because screen-capture software was likely to provide a ready alternative for those uses. Accordingly, the Register recommended a screen-capture exemption to facilitate uses by K-12 students.

    With respect to Class 3, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures by faculty of MOOCs involving film studies or other courses requiring close analysis of film and media excerpts, under specified conditions borrowed from the TEACH Act, codified at 17 U.S.C. 110(2). The Register explained that key elements of the TEACH Act—such as the requirements that uses be limited to nonprofit educational institutions and transmissions be limited to enrolled students—should be incorporated into the exemption to ensure that the exemption is appropriately limited. The Register further found that the record did not support an exemption for student uses.

    With respect to Class 4, the Register concluded that the record did not support an exemption permitting circumvention of DVDs, Blu-ray discs, or digital transmissions in connection with after-school or adult education media literacy programs (apart from GED programs). The Register found that the proposed uses in the record could be satisfied via screen capture, and thus recommended an exemption to facilitate uses of screen-capture software.

    With respect to Classes 5 to 7, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures for use in nonfiction multimedia e-books offering film analysis, in documentary filmmaking, and in noncommercial videos. The Register also recommended an exemption to facilitate use of screen-capture technologies for these uses. For the multimedia e-books exemption (Class 5), the Register recommended maintaining the limitation to e-books offering film analysis, finding that the record did not support an exemption for other uses. With respect to the filmmaking exemption (Class 6), the Register could not conclude, based on the record, that the use of motion picture clips in narrative films was, on balance, likely to be noninfringing, especially in light of the potential effects on existing licensing markets for motion picture excerpts. Finally, in considering the noncommercial video exemption (Class 7), the Register rejected proponents' suggestion to expand the exemption to encompass “primarily noncommercial” videos, as well as opponents' suggestion to narrow the exemption to certain specified categories of noncommercial videos, finding neither change to be necessary.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances:

    (i) For use in documentary filmmaking,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (ii) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity's use is noncommercial),

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (iii) For use in nonfiction multimedia e-books offering film analysis,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (iv) By college and university faculty and students, for educational purposes,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (v) By faculty of massive open online courses (MOOCs) offered by accredited nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), for educational purposes, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2),

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (vi) By kindergarten through twelfth-grade educators, including of accredited general educational development (GED) programs, for educational purposes,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (vii) By kindergarten through twelfth-grade students, including those in accredited general educational development (GED) programs, for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted; and

    (viii) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted.

    2. Proposed Class 9: Literary Works Distributed Electronically—Assistive Technologies 24

    24 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 127-37.

    Proponents of Proposed Class 9 seek to allow circumvention of technological measures protecting literary works distributed in electronic form (including e-books, digital textbooks, and PDF articles) so that such works can be accessed by persons who are blind, visually impaired, or print disabled. The Librarian, upon the recommendation of the Register, granted an exemption in 2012 for these purposes.

    The American Foundation for the Blind, American Council for the Blind,, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, and LCA filed petitions seeking to have the Librarian renew the existing exemption.

    Based on these petitions, the Copyright Office proposed the following class:

    Proposed Class 9: This proposed class would allow circumvention of access controls on lawfully made and acquired literary works distributed electronically for purposes of accessibility for persons who are print disabled. This exemption has been requested for literary works distributed electronically, including e-books, digital textbooks, and PDF articles.

    Proponents argued that reproducing copies in accessible formats is a noninfringing use, and that, while improvements have been made to make literary works more accessible since the last triennial rulemaking, there are still a substantial number of works that cannot be accessed using accessibility technologies such as text-to-speech programs.

    There was no opposition to renewing the 2012 exemption. Significantly, the Association of American Publishers, representing book publishers, filed supportive comments indicating that it had no objection to a renewal of the existing exemption, explaining that the market does not yet offer sufficient accessibility to literary works.

    NTIA supported renewal of the current exemption, finding that the record regarding the state of accessibility of literary works is not substantially different than it was three years ago.

    The Register recommended granting the exemption. According to the Register, the need to ensure that persons who are blind, visually impaired or print disabled are not impeded from accessing books in electronic formats presents a quintessential case for an exemption. The Register determined that converting e-books into accessible formats is likely a noninfringing use both as a matter of fair use and under 17 U.S.C. 121, also known as the “Chafee Amendment,” which allows authorized entities to create accessible versions of works exclusively for use by persons who are blind, visually impaired, or print disabled. The Register also found that TPMs are likely to have an adverse effect on noninfringing activities, as many e-book titles and literary works in electronic format (such as electronic textbooks and PDF articles) are currently unavailable in accessible formats. The Register further concluded that all five statutory factors favored the exemption. Finally, like the existing exemption, the recommended exemption allows the intended beneficiaries of section 121 to benefit from the waiver on circumvention.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies,

    (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels, or

    (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

    3. Proposed Classes 11 to 15: Computer Programs That Enable Devices To Connect to a Wireless Network That Offers Telecommunications and/or Information Services (”Unlocking”) 25

    25 The Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 138-71.

    Proposed Classes 11 through 15 would allow circumvention of access controls on wireless devices such as cellphones and all-purpose tablet computers to allow them to connect to the network of a different mobile wireless carrier, a process commonly known as “unlocking.” Wireless carriers typically lock wireless devices to their networks when they have subsidized the cost of a device at the time of purchase; carriers then recoup that subsidy through wireless service charges paid by the purchaser.

    The Register has recommended, and the Librarian has adopted, exemptions permitting unlocking of cellphones in three prior rulemakings. Based on the evidentiary record in the last triennial proceeding, the 2012 version of the exemption was limited to cellphones obtained on or before January 26, 2013. Congress enacted the Unlocking Act to reinstate the cellphone unlocking exemption that was adopted in 2010, which lacked such a limitation. In the Unlocking Act, Congress also instructed the Librarian to review any future proposal for a cellphone unlocking exemption according to the usual process in this triennial rulemaking, as well as to consider in this rulemaking whether to extend the cellphone unlocking exemption to other categories of wireless devices. As noted above, the Unlocking Act also defines, on a permanent basis, categories of persons and entities that can take advantage of any unlocking exemption.

    Consistent with Congress's directive in the Unlocking Act, the Copyright Office invited proposals to continue an unlocking exemption for wireless telephone handsets and/or to extend the exemption to other categories of wireless devices. The petitions received generally asked for continuation of the current cellphone unlocking exemption, and expansion of that exemption to cover additional types of devices.

    The Office grouped the petitions into five distinct classes based on the type of device at issue, as described below:

    Proposed Class 11: This proposed class would allow the unlocking of wireless telephone handsets. “Wireless telephone handsets” includes all mobile telephones including feature phones, smart phones, and “phablets” that are used for two-way voice communication.

    Class 11, covering cellphones, was proposed by Consumers Union, the Competitive Carriers Association (“CCA”), the Institute of Scrap Recycling Industries (“ISRI”), Pymatuning Communications (“Pymatuning”), and the Rural Wireless Association (“RWA”).

    Proposed Class 12: This proposed class would allow the unlocking of all-purpose tablet computers. This class would encompass devices such as the Apple iPad, Microsoft Surface, Amazon Kindle Fire, and Samsung Galaxy Tab, but would exclude specialized devices such as dedicated e-book readers and dedicated handheld gaming devices.

    Class 12, covering all-purpose tablets, was proposed by Consumers Union, CCA, ISRI, Pymatuning, and RWA. As reflected in the proposal, the petitions were limited to “all-purpose” tablet computers—that is, tablet computers that can run a wide variety of programs—as opposed to devices dedicated to the consumption of particular types of content such as e-book readers.

    Proposed Class 13: This proposed class would allow the unlocking of mobile connectivity devices. “Mobile connectivity devices” are devices that allow users to connect to a mobile data network through either a direct connection or the creation of a local Wi-Fi network created by the device. The category includes mobile hotspots and removable wireless broadband modems.

    Class 13, covering mobile connectivity devices, was proposed CCA and RWA.

    Proposed Class 14: This proposed class would allow the unlocking of wearable wireless devices. “Wearable wireless devices” include all wireless devices that are designed to be worn on the body, including smart watches, fitness devices, and health monitoring devices.

    Class 14, covering wearable wireless devices, was proposed by CCA and RWA.

    Proposed Class 15: This proposed class would allow the unlocking of all wireless “consumer machines,” including smart meters, appliances, and precision-guided commercial equipment.

    Class 15 was proposed by CCA, and encompassed a broad and diverse range of devices and equipment, including any “smart” device utilizing a data connection to connect to the internet or interact with other smart devices. CCA, however, failed to further define the kinds of “smart” devices the exemption would cover beyond those already encompassed by Classes 11 through 14, let alone the types of TPMs used by such devices, or the methods of circumvention. Indeed, it was not apparent from the record whether any such devices actually exist. For instance, while CCA suggested that smart power meters would be encompassed by the proposal, evidence at the public hearing (at which CCA did not participate) indicated that smart meters generally do not have mobile data (i.e., 3G/4G) connections, rendering the concept of “unlocking” irrelevant to that type of device.

    In general, proponents argued that unlocking was permitted under section 117 of the Copyright Act, which allows the owners of computer programs to make certain reproductions of or adaptations to those programs, and as a matter of fair use. They explained that the inability to unlock one's wireless device leads to adverse effects by impeding consumers' ability to choose their preferred wireless carriers, harming the resale value of used devices, and harming the environment by encouraging disposal rather than reuse of devices.

    No party opposed Proposed Class 12 (all-purpose tablet computers) or Proposed Class 14 (wearable computing devices). Prepaid wireless carrier TracFone nominally filed comments in opposition to the cellphone unlocking exemption in Class 11, though at bottom it was not opposed to renewal of the exemption, so long as it was clear that the exemption did not permit illegitimate phone trafficking—a practice where subsidized prepaid cellphones are purchased, unlocked, and resold (often abroad) at a profit. The Alliance of Automobile Manufacturers (“Auto Alliance”) and General Motors LLC (“GM”) filed opposition comments in Class 13 solely to stress that any exemption should exclude “mobile” connectivity devices embedded in motor vehicles, and Class 13 proponents agreed that such a limitation would be appropriate. Auto Alliance opposed Class 15 on the ground that it is ill-defined and could inadvertently sweep in cars and trucks.

    NTIA proposed adopting an exemption encompassing all used wireless devices, without enumerating the types of devices to which the exemption applies. At the same time, NTIA acknowledged that based on the record in the rulemaking, it would be appropriate to exclude one type of wireless device—vehicle-based hotspots—from the exemption.

    The Register recommended adopting an unlocking exemption covering wireless telephone handsets (i.e., cellphones), all-purpose tablet computers, mobile connectivity devices, and wearable wireless devices. According to the Register, the unlocking exemption is likely to facilitate noninfringing uses both under section 117 and as a matter of fair use. The Register further explained that, unlike the section 117 privilege, fair use is not limited to the owner of the computer program, and so there is no need to limit the exemption to the owner of the device software. The Register also found that, as to the devices encompassed by Classes 11 to 14, proponents had provided sufficient evidence of adverse effects flowing from the inability to unlock a device due to a TPM; in contrast, proponents of Class 15, encompassing a broad and undefined range of “consumer machines” and “smart” devices, failed to make a showing of actual adverse effects. In addition, the Register concluded that three of the five statutory factors tended to favor the proponents, while the other two were neutral.

    The recommended exemption is limited to “used” devices. A “used” device is defined as a device that has been lawfully acquired and previously activated on a wireless network. The recommended exemption permits charities and commercial enterprises (including bulk recyclers) to unlock used cellphones, while excluding illegitimate trafficking that seeks to profit from the subsidized phones sold by prepaid wireless carriers. Although some proponents called for elimination of the “used” requirement for cellphones and tablets—which in theory would permit unlocking of new, subsidized devices—the Register concluded that the record did not support extending the exemption in this respect as the evidence did not establish a practical ability to unlock subsidized devices that had never been connected to a carrier. Finally, the recommended exemption excludes devices embedded in motor vehicles from the exemption for mobile connectivity devices by including the condition that the devices be “portable.”

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    (i) Computer programs that enable the following types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, and the device is a used device:

    (A) Wireless telephone handsets (i.e., cellphones);

    (B) All-purpose tablet computers;

    (C) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and

    (D) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.

    (ii) A device is considered “used” for purposes of this exemption when it has previously been lawfully acquired and activated on the wireless telecommunications network of a wireless carrier.

    4. Proposed Classes 16 and 17: Jailbreaking—Smartphones and All-Purpose Mobile Computing Devices 26

    26 The Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 172-92.

    Proposed Classes 16 and 17 address an activity commonly known as “jailbreaking,” which is the process of gaining access to the operating system of a computing device, such as a smartphone or tablet, to install and execute software that could not otherwise be installed or run on that device, or to remove pre-installed software that could not otherwise be uninstalled. The Register has twice before recommended, and the Librarian has twice adopted, an exemption permitting jailbreaking of smartphones.

    EFF filed a petition seeking a jailbreaking exemption for all “mobile computing devices,” including wireless telephone handsets that are capable of running a wide range of applications (i.e., “smartphones”) and tablet computers (“tablets”). EFF explained that its requested exemption is not intended to extend to devices designed primarily for the consumption of a single type of media, such as dedicated e-book readers, or to desktop or laptop computers. Maneesh Pangasa filed a separate petition seeking an exemption for tablet computers. The Copyright Office divided these proposals into two proposed classes to ensure an adequate administrative record on which to make a recommendation. Based on these petitions, the Office included the following proposed exemptions in the NPRM:

    Proposed Class 16: This proposed class would permit the jailbreaking of wireless telephone handsets to allow the devices to run lawfully acquired software that is otherwise prevented from running, or to remove unwanted preinstalled software from the device.

    Proposed Class 17: This proposed class would permit the jailbreaking of all-purpose mobile computing devices to allow the devices to run lawfully acquired software that is otherwise prevented from running, or to remove unwanted preinstalled software from the device. The category “all-purpose mobile computing device” includes all-purpose non-phone devices (such as the Apple iPod touch) and all-purpose tablets (such as the Apple iPad or the Google Nexus). The category does not include specialized devices such as e-book readers or handheld gaming devices, or laptop or desktop computers.

    Relying on case law and prior determinations of the Register, proponents argued that jailbreaking of smartphones and all-purpose mobile computing devices constitutes fair use of the device software. Proponents also pointed to a series of benefits that have resulted from the existing smartphone jailbreaking exemption, such as the ability to install otherwise unsupported operating system upgrades and the rapid growth in the market for legitimate, non-manufacturer-approved apps, and argued that similar benefits would result if the exemption included all-purpose mobile computing devices.

    The Business Software Alliance (“BSA”) opposed both classes. In neither case, however, did BSA dispute the noninfringing nature of jailbreaking. Instead, BSA argued that the existence of alternatives to jailbreaking, such as “developer editions” of devices that do not need to be jailbroken, obviate the need for an exemption. In addition, with respect to the exemption for all-purpose mobile computing devices in Class 17, BSA disputed EFF's effort to distinguish between all-purpose mobile computing devices on the one hand, and desktops and laptops on the other, arguing that the distinction is not sufficiently clear. In response, EFF offered two further criteria to define these devices: First, that they be portable, in the sense that they are “designed to be carried or worn”; and second, that they “come equipped with an operating system that is primarily designed for mobile use,” such as Android, iOS, Blackberry OS or Windows Phone.

    Commenters representing automobile manufacturers filed comments under Class 17 raising the concern that the class could arguably encompass computing systems that are embedded in “mobile” automobiles and other vehicles. EFF clarified, however, that Class 17 was not intended to include software running on vehicle electronics, but only portable devices designed to be carried or worn by a person.

    NTIA favored a jailbreaking exemption for all “mobile computing devices,” a category which (contrary to EFF's proposal) would appear to include devices that are designed primarily for the consumption of a single type of media, including dedicated e-book readers, which are separately addressed in Proposed Class 18 below. Although NTIA asserted that the works and TPMs at issue are strikingly similar and in many cases identical, it cited no evidence to support that claim with respect to dedicated e-book readers, handheld video game consoles, or other dedicated media consumption devices.

    The Register recommended continuing the existing jailbreaking exemption for smartphones, and extending it to all-purpose mobile computing devices. As in previous rulemakings, the Register concluded that jailbreaking to facilitate interoperability is likely to constitute a noninfringing fair use, and that the prohibition on circumvention is having an adverse effect on this type of use. Further, the Register concluded that three of the statutory factors (availability for use of copyrighted works, the impact on criticism, comment, news reporting, teaching, scholarship, or research, and the effect of circumvention of technological measures on the market for or value of the copyrighted works) favored an exemption, while the other two were not implicated by these classes.

    The Register also concluded, based on the overall record, that the category of “all-purpose mobile computing devices” in Class 17 has been meaningfully defined, but that certain refinements were appropriate to address concerns regarding its scope. The recommended exemption thus incorporates EFF's suggestion to specify that the devices be portable, that they be designed to run a wide variety of applications, and that they come equipped with an operating system primarily designed for mobile use. The recommended exemption thus excludes vehicle-embedded systems, devices designed primarily for consumption of a specific type of media (such as e-book readers and handheld gaming devices), and computers confined to desktop or laptop operating systems, such as Windows 8 or Mac OS. If a hybrid device can act either as a laptop or a tablet, the user will need to investigate what type of operating system it contains in order to determine whether the exemption applies.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this exemption, a “portable all-purpose mobile computing device” is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual.

    5. Proposed Class 20: Jailbreaking—Smart TVs 27

    27 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 202-17.

    In addition to their traditional functionality, many modern televisions (“TVs”) have built-in software features that can stream content over the internet, interact with other devices in the home, or run applications. These internet-enabled TVs are often referred to as “Smart TVs.” Smart TV firmware is often protected by TPMs that prevent owners of those TVs from installing third-party software on them. The Software Freedom Conservancy (“SFC”) proposed an exemption to permit circumvention of access controls on firmware (i.e., the operating system) of such smart TVs to enable installation of third-party software.

    The Copyright Office included the following proposed exemption in the NPRM:

    Proposed Class 20: This proposed class would permit the jailbreaking of computer-embedded televisions (“smart TVs”). Asserted noninfringing uses include accessing lawfully acquired media on external devices, installing user-supplied licensed applications, enabling the operating system to interoperate with local networks and external peripherals, and enabling interoperability with external devices, and improving the TV's accessibility features (e.g., for hearing-impaired viewers). The TPMs at issue include firmware encryption and administrative access controls that prevent access to the TV's operating system.

    According to SFC, access to the firmware would allow various noninfringing uses, including improving accessibility features (such as the size of closed captioning), enabling or expanding the TV's compatibility with peripheral hardware and external storage devices, and making changes to display features such as the aspect ratio. SFC argued that the majority of smart TV firmware incorporates the manufacturer's own proprietary applications along with free, libre and open source software (“FLOSS”) applications produced by third parties. SFC argued that, under the relevant FLOSS licenses, smart TV owners are authorized to modify the FLOSS applications and to run them without restriction. SFC also argued that fair use permits reproduction and alteration of proprietary applications to the extent necessary to permit interoperability with lawfully acquired programs.

    Proposed Class 20 was opposed by Joint Creators and LG Electronics U.S.A. (“LG”), a manufacturer of smart TVs. Opponents argued that an exemption would not facilitate noninfringing uses, and was unnecessary because a laptop can be connected to TV sets to view the output of any applications and because LG smart TVs already provide all of the features that SFC claims can be added only by jailbreaking. In addition, Joint Creators raised concerns that jailbreaking would allow the installation of infringing software as well as software such as “Popcorn Time,” an application that facilitates access to and viewing of pirated movies.

    NTIA supported the proposed exemption, on the ground that it is not materially different than the exemptions that have been granted in the past for jailbreaking of smartphones.

    The Register recommended granting the proposed exemption, explaining that circumvention of access controls on smart TV firmware is likely to enable noninfringing uses of that firmware. First, it appears to be undisputed that smart TV firmware incorporates FLOSS applications, and that modification of those applications would constitute a licensed, and therefore noninfringing, use. Second, with respect to non-FLOSS proprietary software included in the firmware, the Register concluded that modifications to that firmware to enable interoperability with third-party software are likely to constitute a fair use. The Register also found that the prohibition on circumvention is adversely affecting legitimate noninfringing uses of smart TV firmware, and that the proposed alternatives to circumvention, such as connecting a laptop computer to the TV, are inadequate, because they would not allow installation of software on the smart TV to improve its functioning as a TV, such as facilitating more prominent subtitles. The Register also concluded that no evidence was submitted to illustrate opponents' claim that jailbreaking of smart TVs will make it easier to gain unauthorized access to copyrighted content, or that it would otherwise undermine smart TVs as a platform for the consumption of expressive works.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television.

    6. Proposed Class 21: Vehicle Software—Diagnosis, Repair or Modification 28

    28 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 218-49.

    Modern automobiles and agricultural vehicles and machinery are equipped with systems of interconnected computers that monitor and control a variety of vehicle functions. These computers are referred to as electronic control units, or “ECUs,” which are protected by TPMs. EFF requested an exemption to permit circumvention of TPMs protecting ECU computer programs for the purposes of diagnosis, repair and modification of vehicles. The Intellectual Property & Technology Law Clinic of the University of Southern California Gould School of Law (“IPTC U.S.C.”) proposed two similar exemptions for agricultural machinery specifically.

    Based on these petitions, the Office included the following proposed exemption in the NPRM:

    Proposed Class 21: This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.

    Proponents explained that circumvention of TPMs protecting copyrighted computer programs in ECUs may be necessary to make noninfringing uses of those programs to diagnose and repair automobiles and agricultural equipment, and to make modifications, such as enhancing a vehicle's suspension or installing a gear with a different radius. They assert that vehicle owners are entitled to use the computer programs in ECUs to diagnose, repair or modify vehicles as a matter of fair use, or under section 117. EFF argues that absent an exemption, vehicle owners must take their cars to authorized repair shops, or purchase expensive manufacturer-authorized tools, to diagnose and repair their vehicles. Similarly, IPTC U.S.C. explained that TPMs restricting access to computer programs that run agricultural vehicles and machinery place the livelihoods of farmers and other business owners at risk, because vehicle owners must sometimes wait significant periods of time before their disabled vehicles can be repaired by an authorized technician.

    The proposed exemption was opposed by the Association of Equipment Manufacturers, Association of Global Automakers (“Global Automakers”), Auto Alliance, Eaton Corporation, GM, John Deere, and Motor & Equipment Manufacturers Association (“MEMA”). In general, opponents argued that an exemption would not facilitate noninfringing uses, and was unnecessary in any event because vehicle owners have alternative options, such as manufacturer-authorized repair shops and tools. They also asserted that the proposal presented serious public health, safety and environmental concerns. For example, users might circumvent in order to avoid restrictions on vehicle emissions imposed by federal and state law.

    In light of the commenters' observations, the Copyright Office notified DOT and EPA of the pendency of the rulemaking. DOT and EPA, as well as California ARB, responded with varying degrees of concern about the potential impact of an exemption. EPA opposed any exemption, while DOT and California ARB expressed significant reservations. The agencies' concerns were focused on potential adverse effects on safety and the environment. For example, EPA explained that vehicle modifications are often performed to increase engine power or boost fuel economy, but that these modifications increase vehicle emissions and thus violate the Clean Air Act.

    In contrast to these other agencies, NTIA fully supported adoption of the proposed exemption. NTIA believed that an exemption was necessary to allow consumers to continue to engage in the longstanding practice of working on their own vehicles, and that the non-copyright concerns raised by opponents and other agencies could be addressed by those agencies in the exercise of their respective regulatory authorities. NTIA acknowledged, however, that a delay in implementation—as recommended by the Register and discussed below—might nonetheless be appropriate to permit other agencies to consider and prepare for the new rule, and urged that any such delay be as short as practicable.

    Based on the record, the Register recommended granting an exemption. The Register concluded that reproducing and altering the computer programs on ECUs for purposes of facilitating diagnosis, repair and modification of vehicles may constitute a noninfringing activity as a matter of fair use and/or under the exception set forth in section 117 of the Copyright Act, which permits the owner of a copy of a computer program to make certain copies and adaptations of the program. The Register also concluded that owners of vehicles and agricultural machinery are adversely impacted as a result of TPMs that protect the copyrighted computer programs on the ECUs that control the functioning of their vehicles. The Register further found that while two of the statutory factors weighed in favor of the exemption (availability for use of copyrighted works and impact on criticism, comment, news reporting, teaching, scholarship or research), and two of the factors were neutral (availability for use for nonprofit archival, preservation and educational purposes and the effect on the market for or value of copyrighted works), the fifth factor—under which commenting parties and federal agencies raised serious safety and environmental concerns—tended to weigh against an exemption.

    Overall, the Register concluded that while from a copyright perspective proponents had made the case for an exemption, based on the record, the exemption needed to be carefully tailored to address a number of concerns. Accordingly, the recommended exemption excludes computer programs in ECUs that are chiefly designed to operate vehicle entertainment and telematics systems due to insufficient evidence demonstrating a need to access such ECUs, and out of concern that such circumvention might enable unauthorized access to creative or proprietary content. The exemption also excludes circumvention “on behalf of” vehicle owners, as a broader exception allowing third parties to engage in circumvention activities on behalf of others is in tension with the anti-trafficking provisions of section 1201(a)(2) and (b). Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties “at the direction of” device owners—Congress indicated its view that extending the reach of an exemption to cover third-party actors requires a legislative amendment. The exemption also expressly excludes acts of circumvention that would violate any other law, including regulations promulgated by DOT or EPA. Finally, in light of the significant concerns raised by DOT and EPA, the recommended exemption will become operative twelve months from the effective date of the new regulation to provide these and other potentially interested agencies an opportunity to consider and prepare for the lifting of the DMCA prohibition. Acknowledging the views of the NTIA, the Register determined that a twelve-month delay was the shortest period that would reasonably permit other agencies to consider appropriate action.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.

    7. Proposed Classes To Permit Research of Software Flaws, Proposed Class 25: Software—Security Research; Proposed Class 22: Vehicle Software—Security and Safety Research; Proposed Class 27A: Medical Device Software—Security and Safety Research 29

    29 The Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 250-320.

    The Office received a number of petitions for proposed exemptions to permit circumvention of TPMs for purposes of conducting good-faith testing for and the identification, disclosure and correction of malfunctions, security flaws and vulnerabilities in computer programs. The proponents of these security exemptions observed as a general matter that computer programs are pervasive in modern machines and devices, including vehicles, home appliances and medical devices, and that independent security research is necessary to uncover flaws in those computer programs. The Copyright Office grouped the security-related petitions into three proposed classes. First, the Office received two submissions from academic researchers seeking an exemption to permit good-faith research into malfunctions, security flaws or vulnerabilities in computer programs installed on all types of systems and devices. The NPRM described the proposed class as follows:

    Proposed Class 25: This proposed class would allow researchers to circumvent access controls in relation to computer programs, databases, and devices for purposes of good-faith testing, identifying, disclosing, and fixing of malfunctions, security flaws, or vulnerabilities.

    Second, EFF filed a petition seeking an exemption to allow the circumvention of TPMs on computer programs that are embedded in motorized land vehicles for purposes of researching the security or safety of that vehicle. The NPRM described the proposed class as follows:

    Proposed Class 22: This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle for the purpose of researching the security or safety of such vehicles. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.

    Third, the Medical Device Research Coalition (“MDRC”), a group of patients and researchers, filed a petition seeking an exemption to allow the circumvention of TPMs on computer programs on implanted medical devices, such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors, and their corresponding personal monitoring systems. MDRC's petition covered two proposed uses—allowing research into software flaws that adversely affect the safety, security and efficacy of medical devices, and allowing a patient to access the information generated by his or her own device. The Office originally categorized the petition into a single class. The NPRM thus described the class as follows:

    Proposed Class 27: This proposed class would allow circumvention of TPMs protecting computer programs in medical devices designed for attachment to or implantation in patients and in their corresponding monitoring devices, as well as the outputs generated through those programs. As proposed, the exemption would be limited to cases where circumvention is at the direction of a patient seeking access to information generated by his or her own device, or at the direction of those conducting research into the safety, security, and effectiveness of such devices. The proposal would cover devices such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors.

    Based on the record as it developed in the course of the proceeding, the Register came to the conclusion that Proposed Class 27 should be divided into Proposed Class 27A, concerning security research on medical devices, and Proposed Class 27B, concerning access to patient data generated by medical devices. Class 27A is addressed with the other security research classes, while 27B is separately discussed below.

    Proponents maintained that the security of software and the devices that execute software is of critical importance because security flaws pose potentially serious threats, including physical injury and death of individuals, property damage, and financial harm. Proponents argued that security research is noninfringing as a matter of fair use and, in the case of vehicle security research, under the exceptions set forth in section 117 as well. They further asserted that the permanent statutory exemptions to section 1201(a)(1)'s prohibition that are directed to reverse engineering (section 1201(f)), encryption research (section 1201(g)), and security testing (section 1201(j)) are inadequate for their purposes, because these provisions do not provide sufficient assurance that the activities in which the researchers seek to engage will be considered exempt.

    The Office received comments in opposition to these proposed classes from a wide range of companies and organizations representing copyright owners. The general software security research exemption in Class 25 was opposed by AdvaMed, Auto Alliance, BSA, GM, Intellectual Property Owners Association (“IPO”), LifeScience Alley, Medical Device Innovation Safety and Security Consortium, and Software Information Industry Association. The vehicle software security research exemption in Class 22 was opposed by Global Automakers, Auto Alliance, GM, John Deere, and MEMA. The medical device software security exemption in Class 27A was opposed by AdvaMed, IPO, Jay Schulman, LifeScience Alley, and National Association of Manufacturers (“NAM”). In general, opponents argued that proponents had failed to establish that security research activities encompassed by the exemption are noninfringing, and that, in any event, an exemption was unnecessary both because of the permanent exemptions in sections 1201(f), 1201(g), and 1201(j), and because manufacturers frequently authorize independent security research. Opponents also argued that any exemption for software security research should also include an express disclosure requirement, so that the software developer or product manufacturer has sufficient time to correct any flaw before its existence becomes more widely known and thus more susceptible to exploitation by malicious actors. Relatedly, opponents asserted that the proposal presented serious public health and safety concerns. For example, opponents claimed that information obtained by engaging in security research could be used by bad actors to hack into highly regulated machines and devices, including medical devices and vehicles.

    In light of commenters' observations, the Copyright Office notified DOT, EPA and FDA of the pendency of the rulemaking. All three agencies responded and expressed significant reservations. The agencies voiced concerns about the potential effects on public health and safety; for example, DOT expressed concern that independent security researchers may not fully appreciate the potential ramifications of their acts of circumvention on automobile safety or the logistical limitations affecting potential remedial actions.

    By contrast, NTIA fully supported adoption of a broad exemption for all computer programs, regardless of the device on which they are run, so that good-faith security researchers can engage in socially beneficial work. NTIA believed that the concerns of other agencies could adequately be addressed by stating explicitly in the exemption that it does not obviate compliance with other applicable laws. NTIA nonetheless acknowledged the possibility that a delay in implementation—as recommended by the Register and discussed below—could be appropriate to permit other agencies to consider and prepare for the new rule.

    The Register found that while the Class 25 proposal to allow research on computer programs generally was very broad (and potentially swallowed the proposals in Class 22 and Class 27A), the record focused primarily on consumer-facing products rather than large-scale industrial or government systems such as power or transit systems. The record also included specific evidence concerning motor vehicles, implanted medical devices such as pacemakers and glucose monitors, and electronic voting machines.

    Based on this record, the Register recommended adopting an exemption to enable good-faith security research on computer programs within devices or machines primarily designed for use by individual consumers (including voting machines), motorized land vehicles, and implanted medical devices and their corresponding monitoring systems. At the same time, the Register concluded that the record did not support the open-ended exemption urged by Class 25 proponents, encompassing all computer programs on all systems and devices, including highly sensitive systems such as nuclear power plants and air traffic control systems, and that the exemption should be limited to the consumer-oriented uses that were the focus of proponents' submissions.

    The Register concluded that good-faith security research into computer programs used to operate such devices and machines is likely a noninfringing fair use of those programs or, in the case of vehicle software, may be a noninfringing use under section 117. The Register also concluded that the permanent exemptions in sections 1201(f), 1201(g), and 1201(j) are inadequate to accommodate the proposed research activities due to various limitations and conditions contained in those provisions. Further, with respect to computer programs used to operate the types of devices and machines encompassed by the recommended exemption, the Register additionally found that legitimate security research has been hindered by TPMs that limit access to those programs.

    The Register also noted that different parts of the Administration appear to hold divergent views on issues surrounding security research and the wisdom of granting an exemption for this purpose, and that the exemption could cover any number of highly regulated products. Accordingly, to give other parts of the government sufficient opportunity to respond, the Register recommended that, as a general matter, the exemption should not go into effect until twelve months after the effective date of the new regulation (as noted above, the Register found that twelve months was the shortest period that would reasonably permit other agencies to respond). The Register, however, recommended immediate implementation of the exemption for voting machines, on the ground that there was no public safety issue or other proffered justification for delay of this aspect of the exemption.

    The Register also noted the specific concern expressed by other agencies that acts of security research must not put members of the public at risk. The recommended exemption thus provides that security research must be conducted in a controlled setting designed to avoid harm to individuals or the public. In the case of medical devices specifically, the recommended exemption incorporates FDA's suggestion to exclude research on medical devices that are being used, or could be used, by patients.

    As explained above, a significant issue with respect to the security exemptions involves the proper disclosure of security research findings, as the interests of the manufacturer and the public may both be affected by the nature and timing of disclosure of software flaws. Indeed, Congress included disclosure to the system developer as one of the factors to be considered in determining a person's eligibility for the security testing exemption in section 1201(j). Although the Register expressed support for responsible disclosure of security flaws, she acknowledged the difficulty of attempting to define disclosure standards in the context of this rulemaking, as opinions seem sharply divided on this point. Accordingly, rather than incorporating an express disclosure rule, the recommended exemption draws upon what the Register perceives to be the basic intent of section 1201(j) by specifying that the information derived from the research activity be used primarily to promote the security or safety of the devices containing the computer programs on which the research is conducted, or of those who use those devices.

    The Register noted that in the interest of adhering to Congress's basic purpose in section 1201(j), where appropriate, the recommended exemption tracks Congress's language rather than alternative formulations suggested by proponents, including by expressly excluding acts that violate any other law, such as the Computer Fraud and Abuse Act of 1986.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    (i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code; and provided, however, that, except as to voting machines, such circumvention is initiated no earlier than 12 months after the effective date of this regulation, and the device or machine is one of the following:

    (A) A device or machine primarily designed for use by individual consumers (including voting machines);

    (B) A motorized land vehicle; or

    (C) A medical device designed for whole or partial implantation in patients or a corresponding personal monitoring system, that is not and will not be used by patients or for patient care.

    (ii) For purposes of this exemption, “good-faith security research” means accessing a computer program solely for purposes of good-faith testing, investigation and/or correction of a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement.

    8. Proposed Class 23: Abandoned Software—Video Games Requiring Server Communication 30

    30 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 321-53.

    Many modern video games—which may be played on a personal computer or a dedicated gaming console—require a network connection to a remote server operated by the game's developer to enable core functionalities. Before some games can be played at all, including in single-player mode, the game must connect to an “authentication server” to verify that the game is a legitimate copy. Other games require a connection to a “matchmaking server” to enable users to play the game with other people over the internet in multiplayer mode. In the case of a game that relies on an authentication server, the game may be rendered entirely unplayable if the server connection is lost. When a matchmaking server is taken offline, the game may still be playable, though with online multiplayer play disabled.

    EFF and Kendra Albert, a student at Harvard Law School, jointly filed a petition seeking an exemption to enable those who have lawfully acquired copies of video games to access and play those games when authentication or matchmaking servers have been permanently taken offline. As the record developed, it became evident that the proposal focused on two types of use: (1) People who wish to continue to play physical or downloaded copies of video games they have lawfully acquired (referred to in the Recommendation as “gamers”); and (2) those who seek to preserve individual video games and make them available for research and study (referred to in the Recommendation as “preservationists”).

    The Copyright Office set forth the following proposed exemption in the NPRM:

    Proposed Class 23: This proposed class would allow circumvention of TPMs on lawfully acquired video games consisting of communication with a developer-operated server for the purpose of either authentication or to enable multiplayer matchmaking, where developer support for those server communications has ended. This exception would not apply to video games whose audiovisual content is primarily stored on the developer's server, such as massive multiplayer online role-playing games.

    Proponents of Class 23 argued that uses to enable continued gameplay or multiplayer play constitute fair use, but that the prohibition on circumvention prevents owners from restoring access to games they have lawfully acquired. They also stressed that the inability to restore access has adverse effects on efforts to preserve video games and make them available for research and study.

    The proposed class was opposed by ESA and Joint Creators. They argued that the proposed exemption was too broad, would not facilitate any noninfringing uses, and could adversely impact the market for video games. ESA expressed particular concern about the potential for piracy as a result of circumvention activities, explaining that if the exemption were to permit circumvention of TPMs on video game consoles, those consoles could be used to play pirated video games. Opponents also urged that petitioners had failed to demonstrate cognizable adverse effects, arguing, for example, that the vast majority of games can continue to be played in single-player mode when server support has ended, and that there are other alternative means of playing games in multiplayer mode without a matchmaking server, including by using a local area network. ESA also argued that, at the point of sale, consumers receive ample notice that server support may be discontinued.

    NTIA supported adoption of the proposed exemption for continued gameplay and for preservation uses, both for single-player and multiplayer play. NTIA argued that gamers should be permitted to restore access to a work that they had originally been allowed to use. In addition, according to NTIA, consumers receive inconsistent notice at best that developers may discontinue support for multiplayer use, and LAN-enabled multiplayer play is an inadequate substitute to play over the internet.

    Based on a review of the evidentiary record, the Register recommended an exemption to allow continued gameplay and preservation activities when developer server support for a video game has ended, though one more circumscribed than that proposed. With respect to gamers, the Register concluded that the record supported granting an exemption for video games that require communication with an authentication server to allow gameplay when the requisite server is taken offline. The Register explained that the inability to circumvent the TPM would preclude all gameplay, a significant adverse effect, and that circumvention to restore access would qualify as a noninfringing fair use. At the same time, the Register determined that proponents had failed to provide persuasive support for an exemption for online multiplayer play, in large part because it is not clear on the current record how the provision of circumvention tools to multiple users to facilitate an alternative matchmaking service could be accomplished without running afoul of the anti-trafficking provision in section 1201(a)(2). The Register also confirmed that the exemption for gamers should not extend to jailbreaking of console software because such jailbreaking is strongly associated with video game piracy.

    With respect to preservation uses, looking to certain aspects of section 108 of the Copyright Act for guidance, the Register found that the record supported an exemption for libraries and archives, as well as for museums, to allow circumvention of TPMs so that video games can be preserved in playable condition when authentication servers are discontinued. In accordance with section 108, such institutions must be open to the public and/or to unaffiliated researchers, and the activities at issue must not be for commercial purposes. As with gamers generally, the recommended exemption for preservationists does not extend to circumvention to enable online multiplayer play, which is an activity that would extend beyond the walls of the preserving institution. But because the risk of piracy is much lower in a preservationist setting than with respect to gamers at large, the Register recommended that preservationists have the ability to circumvent TPMs controlling access to video game console software when necessary to maintain a console game in playable form.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    (i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, solely for the purpose of:

    (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal gameplay on a personal computer or video game console; or

    (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives or museum.

    (ii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives or museum to engage in the preservation activities described in paragraph (i)(B).

    (iii) For purposes of the exemptions in paragraphs (i) and (ii), the following definitions shall apply:

    (A) “Complete games” means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server.

    (B) “Ceased to provide access” means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored.

    (C) “Local gameplay” means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility.

    (D) A library, archives or museum is considered “eligible” when the collections of the library, archives or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum.

    9. Proposed Class 26: Software—3D Printers 31

    31 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 356-77.

    3D printing—also known as “additive” manufacturing—is a technology that translates digital files into physical objects by adding successive layers of material. Some 3D printer manufacturers use TPMs to limit the types of material—or “feedstock”—that can be used in their 3D printers to manufacturer-approved feedstock.

    Proponent Public Knowledge sought an exemption to permit the circumvention of access controls on computer programs on 3D printers with chip-based verification systems to enable the use of non-manufacturer-approved feedstock in such printers. The requested exemption would encompass both the modifications necessary to make a 3D printer accept alternative feedstock, and potentially further modifications to allow the use of feedstock consisting of material that is different from what a 3D printer has been designed to use (e.g., metal instead of plastic).

    The Copyright Office set forth the following proposed exemption in the NPRM:

    Proposed Class 26: This proposed class would allow circumvention of TPMs on firmware or software in 3D printers to allow use of non-manufacturer-approved feedstock in the printer.

    According to Public Knowledge, non-manufacturer-approved feedstock is often much less expensive than that provided by the manufacturer. In addition, use of feedstock composed of a different material may require modification of the printer's operating system software, for example, to change preset variables such as the rate at which the heated feedstock is extruded to create the object or the temperature of the extrusion nozzle. According to Public Knowledge, the reproductions and adaptations necessary to engage in these uses are noninfringing under either the fair use doctrine or section 117. Public Knowledge asserts that absent an exemption, 3D printer owners will be forced to pay more for feedstock, and innovation in the 3D printing space will be adversely affected.

    This proposed class was opposed by Stratasys, Inc. (“Stratasys”), a 3D printer manufacturer. Among other things, Stratasys contended that the proposed uses do not qualify as noninfringing under section 117 because 3D printer owners license rather than own the software that is installed on the 3D printer. Stratasys also argued that proponents had failed adequately to demonstrate cognizable adverse effects. Stratasys explained that 3D printers are used to produce medical implants, aerospace parts, and other goods that are subject to safety or regulatory guidelines, and expressed concern that an exemption could permit use of inferior materials in such applications. Notably, this concern was reinforced by FDA, which, in a letter to the Office, worried that an exemption for this class might create unintended public health and safety risks in relation to medical devices. Stratasys also expressed the concern that an exemption could be used to access proprietary design software, design files, or data.

    NTIA favored granting the proposed exemption, on the ground that it would benefit consumers and fuel innovation by reducing costs of feedstock and by allowing the use of new types of feedstock. Although NTIA acknowledged concerns that 3D-printed parts might use inferior materials, it concluded that the exemption should not attempt to address concerns about quality control.

    The Register recommended granting an exemption for 3D printers with chip-based verification systems, explaining that the proposed uses of operating system software to permit the use of alternative feedstock are likely noninfringing as a matter of fair use or under section 117, and that the prohibition on circumvention appears to be adversely affecting the proposed uses. At the same time, the Register observed that proponents' proposal—and the evidence offered in support—was focused largely on nonindustrial uses of printers rather than the sorts of uses that could present the types of safety and regulatory concerns highlighted by Stratasys and FDA. In light of the record, and to address the safety and regulatory issues, the recommended exemption excludes circumvention of TPMs on 3D printers that are used to print objects that are subject to legal or regulatory oversight. The recommended exemption also excludes circumvention for the purpose of accessing design software, design files or proprietary data.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data; provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.

    10. Proposed Class 27B: Networked Medical Devices—Patient Data 32

    32 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 378-403.

    Many modern implanted medical devices, such as pacemakers, implantable cardioverter defibrillators, insulin pumps and continuous glucose monitors, measure and record data about physiological developments taking place within the body, and communicate that data wirelessly to a corresponding personal monitoring system. Some personal monitoring systems, in turn, transmit data to a hospital or monitoring company, and ultimately to the patient's physician. Increasingly, these transmissions of data are protected by TPMs, including encryption schemes. MDRC requested an exemption that would allow a patient, or persons acting on behalf of the patient, to circumvent TPMs on these transmissions so that the patient is able to access the data generated by his or her own medical device and any corresponding personal monitoring system, without the need to visit a hospital or doctor's office.

    As explained above, MDRC's petition also encompassed security research into medical device software. The Office accordingly set forth the following class in the NPRM:

    Proposed Class 27: The proposed class would allow circumvention of TPMs protecting computer programs in medical devices designed for attachment to or implantation in patients and in their corresponding monitoring devices, as well as the outputs generated through those programs. As proposed, the exemption would be limited to cases where circumvention is at the direction of a patient seeking access to information generated by his or her own device, or at the direction of those conducting research into the safety, security, and effectiveness of such devices. The proposal would cover devices such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors.

    As also noted above, the Register concluded that Proposed Class 27 should be divided into Proposed Class 27A, concerning security research, and Proposed Class 27B, concerning patient data, to allow the two types of uses to be separately analyzed. Class 27A is addressed with the other security research-related classes above. A discussion of Class 27B follows.

    MDRC explained that an exemption to circumvent TPMs protecting medical device data would give patients real-time access to their own health data, allowing them, for example, to immediately detect major health risks or facilitate highly personalized treatment. As framed by MDRC, the exemption would provide access only to TPM-protected data outputs of medical devices, not to computer programs contained within medical devices or their corresponding monitoring systems. Although MDRC explained that such data is uncopyrightable to the extent it merely consists of physiological facts, such as a patient's blood glucose level, it expressed concern that the data outputs of some devices may constitute copyrightable compilations. MDRC asserted that the proposed use of such compilations would be a fair use, and urged the Office to adopt an exemption covering such circumstances. MDRC explained that the prohibition on circumvention adversely affects patients' ability to monitor their own health in real time, and that those adverse effects are likely to increase because FDA has encouraged manufacturers to impose TPMs on data outputs. Responding to concerns about the impact of such an exemption on the battery life of implanted devices, MDRC explained that the exemption could be limited to passive monitoring of data that is already being transmitted by the medical device or monitoring system.

    The Office received comments in opposition to the proposed exemption from AdvaMed, IPO, LifeScience Alley, and NAM. AdvaMed agreed with MDRC that in certain circumstances, the selection and arrangement of data generated by a medical device might be copyrightable as a compilation. Opponents, however, provided little argument to counter MDRC's claim that patient access to such medical data constitutes a noninfringing fair use. Indeed, they conceded that patients have an “inherent right” to access their own medical data, but argued that this right is satisfied by obtaining data via authorized means, such as through a patient's health care provider. Opponents also relied heavily on the claim that the exemption would create health and safety concerns. For example, opponents contended that requesting data from implanted devices at an abnormally high rate could reduce the battery life of such devices. Opponents suggested that the Copyright Office allow an opportunity for FDA to provide input on the proposed exemption.

    In light of opponents' comments, the Office advised FDA of the pendency of this proceeding. In a responsive letter to the Office, FDA expressed concern about facilitating access to data that includes patient health information or personally identifiable information, noting that the use of such data is subject to government regulation. FDA recommended that any exemption indicate that it was not intended to override the regulations of other federal agencies.

    NTIA supported the proposed exemption, explaining among other things that the exemption would allow patients to see and react to data collected by their devices in real time. NTIA also concluded that the exemption is unlikely to adversely affect the operation of the medical device itself, based on MDRC's assertion that data would be passively intercepted as it is wirelessly transmitted from the device or monitoring system.

    The Register recommended granting the proposed exemption. The Register observed that in many cases, data outputs generated by devices would likely be uncopyrightable, and that in such cases, section 1201(a)(1)—which is limited to works protected under title 17—would not apply. The Register noted, however, that some data outputs could qualify for protection as literary works if they reflect a sufficiently original selection and presentation of data, and that opponents themselves agreed that such outputs could be subject to copyright. Accordingly, the Register concluded that an exemption would be appropriate to enable patients' access to their own medical data as embodied in protectable data compilations generated by implanted medical devices and corresponding personal monitoring systems. The Register concluded that accessing one's own medical data is likely to be a fair and noninfringing use, and that TPMs on that data are likely to have an adverse impact on such access, especially as TPMs become more prevalent in response to FDA guidance. In addition, the Register concluded that the statutory factors favor an exemption.

    In light of concerns about the effect of circumvention on the battery life of implanted medical devices, the Register recommended that the exemption reflect the approach suggested by MDRC, so it is limited to passively accessing data that is already being generated or transmitted by the device. Further, as suggested by FDA, the recommended exemption expressly provides that any actions taken under the exemption must be compliant with all applicable laws and regulations. The recommended exemption does not permit circumvention “at the direction of a patient,” as a broader exception allowing third parties to engage in circumvention activities on behalf of others could implicate the anti-trafficking provisions of section 1201(a)(2) and (b). Unlike the recommended exemptions for security research and vehicle diagnosis, repair and modification, the Register recommended that the exemption for access to patient data be effective without delay because the passive monitoring of data transmissions did not appear to present any immediate safety or health concerns.

    Accordingly, based on the Register's recommendation, the Librarian adopts the following exemption:

    Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system.

    B. Classes Considered but Not Recommended

    Based upon the record in this proceeding, the Register of Copyrights recommends that the Librarian determine that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

    1. Proposed Classes 8 and 10: Audiovisual Works and Literary Works Distributed Electronically—Space-Shifting and Format-Shifting 33

    33 The Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 107-26.

    Proposed Classes 8 and 10 would have permitted circumvention of technological measures protecting motion pictures, e-books, and other audiovisual or literary works to allow users to view the materials on alternate devices for personal use or to create back-up copies. Broadly speaking, this activity is referred to as “space-shifting” and, in some cases, “format-shifting.”

    Public Knowledge requested an exemption to engage broadly in noncommercial space-shifting of motion pictures distributed on DVDs, Blu-ray discs, and downloaded files. Alpheus Madsen requested an exemption to allow circumvention of access controls on DVDs specifically in order to play the DVDs on the Linux operating system. These overlapping exemptions were combined into the following class:

    Proposed Class 8: This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the purpose of noncommercial space-shifting or format-shifting. This exemption has been requested for audiovisual material made available on DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.

    Christopher Meadows, in turn, proposed an exemption to engage in noncommercial space- or format-shifting of e-books, to allow consumers to view TPM-protected e-books on alternate viewing platforms and to create back-up copies. The proposed exemption was described as follows:

    Proposed Class 10: This proposed class would allow circumvention of access controls on lawfully made and acquired literary works distributed electronically for the purpose of noncommercial space-shifting or format-shifting. This exemption has been requested for literary works distributed electronically [as] e-books.

    For both classes, proponents argued that space- and format-shifting for personal, noncommercial uses are fair uses. In the past four rulemakings, the Register has declined to recommend, and the Librarian has declined to adopt, an exemption for such uses because the proponents had failed to establish a legal or factual record sufficient to establish that the space- or format-shifting of audiovisual works, e-books, and other copyrighted works constitutes a noninfringing use. In this rulemaking, proponents argued that reconsideration of that position was warranted in light of a recent district court decision, Fox Broadcasting Co. v. Dish Network LLC, 34 as well as certain statements from legislative history of certain aspects of the Copyright Act, including a discussion of how the creation of a limited copyright in sound recordings might impact home audio recording.

    34 No. CV 12-4529 DMG (SHx), 2015 WL 1137593, at *30-31 (C.D. Cal. Jan. 20, 2015).

    Opponents urged that noncommercial space- and format-shifting are not established fair uses under the law. They further argued that, in any event, an exemption is unwarranted in light of the continued growth of licensed digital distribution services that provide meaningful alternatives to circumvention, including digital rights locker services such as UltraViolet and Disney Movies Anywhere and disc-to-digital services such as VUDU and Flixter that allow consumers to convert previously purchased DVDs or Blu-ray discs into high-quality digital files. According to opponents, an exemption that allowed broad-based space- or format-shifting would undermine not only the existing markets for DVDs and Blu-ray discs but also these emerging online distribution models.

    NTIA, as it has in the past, supported what it termed a “narrowed version” of an exemption to allow circumvention when the work is not accompanied by an additional copy of the work in an alternate digital format. In NTIA's view, the exemption is an issue of consumer protection, although NTIA acknowledged the broader debate about the merits and legality of noncommercial space-shifting.

    The Register recommended against the adoption of a proposed exemption, on the ground that the law of fair use, as it stands today, does not sanction broad-based space-shifting or format-shifting. The Register rejected proponents' attempt to rely on the Dish Network case, explaining that the uses at issue there were much more circumscribed than the uses proposed for this exemption. In particular, the service at issue in Dish Network included many safeguards to prevent unfettered use of the relevant content, including limitations on the length of time content would be available on the device to which a work is transferred. Accordingly, the Register concluded that the case was both factually and legally distinguishable. On the other hand, the recent case of Fox News Network, LLC v. TVEyes Inc., 35 reaffirmed judicial reluctance to embrace a general space-shifting privilege.

    35 No. 13 Civ. 5315 (AKH), 2015 WL 5025274 (S.D.N.Y. Aug. 25, 2015).

    At the same time, the Register recognized the consumer appeal of the proposals, and marketplace efforts to meet consumer demand for accessing movies and books in a wide variety of formats. According to the Register, the policy judgments surrounding the creation of a novel exception for space- or format-shifting of copyrighted works are complex and thus best left to Congress or the courts.

    2. Proposed Class 18: Jailbreaking—Dedicated E-Book Readers 36

    36 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 193-94.

    This class would have allowed circumvention of technological measures protecting dedicated e-book readers, such as Amazon's Kindle Paperwhite, to run lawfully acquired third-party applications or software on such devices. Maneesh Pangasa filed a petition seeking this exemption, and the NPRM described the class as follows:

    Proposed Class 18: This proposed class would permit the jailbreaking of dedicated e-book readers to allow those devices to run lawfully acquired software that is otherwise prevented from running.

    Pangasa, however, failed to submit further written comments or evidentiary material in support of the petition and did not participate in the public hearings. The written comments that were received in connection with this class were abbreviated and did not offer specific factual information or legal argument in support of the exemption. At the public hearing, proponent Jay Freeman briefly mentioned that people have jailbroken e-book readers to install screen savers or achieve other functionality, but no further evidence was presented in relation to this class. There were no opposition comments filed.

    Although, as part of its discussion of the jailbreaking exemptions for smartphones and all-purpose mobile computing devices, NTIA expressed support for a jailbreaking exemption for dedicated e-book readers, NTIA did not point to anything specific in the record to support the requested exemption.

    In light of the insufficiency of factual or legal support for the proposed exemption, the Register declined to recommend it.

    3. Proposed Class 19: Jailbreaking—Video Game Consoles 37

    37 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 195-201.

    Maneesh Pangasa filed a petition proposing an exemption to permit jailbreaking of home video game consoles for an assortment of asserted noninfringing uses, including installing alternative operating systems. The Librarian rejected a similar exemption in 2012 because of substantial concerns about video game piracy. The Copyright Office set forth the following proposal in the NPRM:

    Proposed Class 19: This proposed class would permit the jailbreaking of home video game consoles. Asserted noninfringing uses include installing alternative operating systems, running lawfully acquired applications, preventing the reporting of personal usage information to the manufacturer, and removing region locks. The requested exemption would apply both to older and currently marketed game consoles.

    Pangasa failed to file supporting comments or participate in the public hearings, and the brief written comments filed by other parties provided scant support for the exemption. The limited amount of factual support offered in written comments—concerning academic research projects and “homebrew” video games—largely mirrored factual claims that were not persuasive in the 2012 proceeding. At the public hearing, the representative of commenting party iFixit provided some additional information regarding certain types of video game console repairs for which jailbreaking might be useful. At the same time, however, he acknowledged that the referenced repairs could be undertaken without circumvention.

    Class 19 was opposed by ESA and Joint Creators. As in 2012, opponents provided substantial evidence that console jailbreaking is closely tied to video game piracy. In response to iFixit's concerns about console repair, ESA observed that all major console manufacturers offer repair services for consoles still under warranty at no charge, and for out-of-warranty consoles for prices ranging from $99 to $149. iFixit agreed with this assessment.

    NTIA supported an exemption limited to repair of malfunctioning hardware for systems that are obsolete or no longer covered by manufacturer warranty, on the ground that to use an authorized repair service, the owner must send the console to the manufacturer and pay a “substantial” fee. At the same time, NTIA concluded that the record did not support a broader exemption, as the record is “significantly less robust and detailed than it was in the last rulemaking.”

    The Register concluded that the record in this rulemaking did not provide a basis for departing from her 2012 recommendation that an exemption for video game console jailbreaking should be denied. According to the Register, the record was not materially different from that considered in 2012, and included evidence demonstrating that jailbreaking of video game consoles continues to be closely associated with video game piracy, thus undermining the value of console software as a secure distribution platform. The Register also concluded that the need to engage in console repair did not provide a basis for an exemption in light of the availability of authorized repair services and the ability of proponents and others to perform repairs without the need to circumvent.

    4. Proposed Class 24: Abandoned Software—Music Recording Software 38

    38 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 354-55.

    This proposed exemption would have allowed circumvention of a dongle-like access control that is allegedly no longer supported by the developer or copyright owner and protects a specific type of music recording software, Ensoniq PARIS. Three individuals proposed this exemption, Richard Kelley, James McCloskey, and Michael Yanoska, and the Copyright Office set forth the following proposal in the NPRM:

    Proposed Class 24: This proposed class would allow circumvention of access controls consisting of the PACE content protection system, which restricts access to the full functionality of lawfully acquired Ensoniq PARIS music recording software.

    No evidence or argument to support this exemption was submitted after the initial petition phase of the proceeding. The class was opposed by Joint Creators, who raised concerns about the lack of supporting evidence.

    In light of the incomplete record, NTIA and the Register declined to recommend granting the exemption.

    C. Conclusion

    Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.

    Dated: October 20, 2015. Maria A. Pallante, Register of Copyrights and Director of the U.S. Copyright Office. Determination of the Librarian of Congress

    Having duly considered and accepted the Recommendation of the Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of copyrighted works that shall for a three-year period be subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).

    List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

    Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702

    2. Section 201.40 is amended by revising paragraph (b) and removing paragraph (d).

    The revision reads as follows:

    § 201.40 Exemption to prohibition against circumvention.

    (b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works:

    (1) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances:

    (i) For use in documentary filmmaking,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (ii) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity's use is noncommercial),

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (iii) For use in nonfiction multimedia e-books offering film analysis,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (iv) By college and university faculty and students, for educational purposes,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (v) By faculty of massive open online courses (MOOCs) offered by accredited nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), for educational purposes, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2),

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (vi) By kindergarten through twelfth-grade educators, including of accredited general educational development (GED) programs, for educational purposes,

    (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or

    (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

    (vii) By kindergarten through twelfth-grade students, including those in accredited general educational development (GED) programs, for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted; and

    (viii) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted.

    (2) Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies,

    (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels, or

    (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

    (3)(i) Computer programs that enable the following types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, and the device is a used device:

    (A) Wireless telephone handsets (i.e., cellphones);

    (B) All-purpose tablet computers;

    (C) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and

    (D) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.

    (ii) A device is considered “used” for purposes of this exemption when it has previously been lawfully acquired and activated on the wireless telecommunications network of a wireless carrier.

    (4) Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this exemption, a “portable all-purpose mobile computing device” is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual.

    (5) Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television.

    (6) Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.

    (7)(i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code; and provided, however, that, except as to voting machines, such circumvention is initiated no earlier than 12 months after the effective date of this regulation, and the device or machine is one of the following:

    (A) A device or machine primarily designed for use by individual consumers (including voting machines);

    (B) A motorized land vehicle; or

    (C) A medical device designed for whole or partial implantation in patients or a corresponding personal monitoring system, that is not and will not be used by patients or for patient care.

    (ii) For purposes of this exemption, “good-faith security research” means accessing a computer program solely for purposes of good-faith testing, investigation and/or correction of a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement.

    (8)(i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, solely for the purpose of:

    (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal gameplay on a personal computer or video game console; or

    (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives or museum.

    (ii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives or museum to engage in the preservation activities described in paragraph (i)(B).

    (iii) For purposes of the exemptions in paragraphs (i) and (ii), the following definitions shall apply:

    (A) “Complete games” means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server.

    (B) “Ceased to provide access” means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored.

    (C) “Local gameplay” means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility.

    (D) A library, archives or museum is considered “eligible” when the collections of the library, archives or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum.

    (9) Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data; provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.

    (10) Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system.

    Dated: October 20, 2015. David S. Mao, Acting Librarian of Congress.
    [FR Doc. 2015-27212 Filed 10-27-15; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0591; FRL-9934-14] Methoxyfenozide; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of methoxyfenozide in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective October 28, 2015. Objections and requests for hearings must be received on or before December 28, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0591, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0591 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 28, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0591, by one of the following methods:

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

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of March 4, 2015 (80 FR 11611) (FRL-9922-68), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E8298) by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide methoxyfenozide, (3-methoxy-2-methylbenzoic acid 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide), under paragraph (a) in or on: Chive, fresh leaves at 30.0 parts per million (ppm); fruit, stone, group 12-12, except plum, prune, fresh at 3.0 ppm; and nut, tree, group 14-12 at 0.10 ppm. The petition also proposed the following tolerances under paragraph (a) be removed upon approval of the proposed tolerances listed above: Fruit, stone, group 12, except plum, prune, fresh at 3.0 ppm; nut, tree, group 14 at 0.10 ppm; pistachio at 0.10 ppm; and in paragraph (d), chive at 4.5 ppm be removed. The petition additionally requested to amend the tolerances in 40 CFR 180.544 for residues of methoxyfenozide in or on onion, green, subgroup 3-07B at 5.0 ppm to onion, green, subgroup 3-07B, except chive at 5.0 ppm; and herb subgroup 19A, except chive at 400 ppm to herb subgroup 19A, except chive, fresh leaves at 400 ppm. That document referenced a summary of the petition prepared on behalf of IR-4 by Dow AgroSciences LLC, the registrant, which is available in the docket, http://www.regulations.gov. No FFDCA-related comments were received on the notice of filing.

    Based upon review of the data supporting the petition, EPA has determined that the amended tolerance on onion, green, subgroup 3-07B, except chive should be established in or on onion, green, subgroup 3-07B, except chive, fresh leaves. The reasons for these changes are explained in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for methoxyfenozide including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with methoxyfenozide follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    Many of the available short-term or subchronic toxicity studies on methoxyfenozide showed little or no toxicity. The main target organs identified from the toxicity studies in the rat and dog were the liver, thyroid, and red blood cells (RBCs). The most consistent findings across species and studies were transiently decreased RBC parameters and increased liver, thyroid, adrenal, and spleen weights. Increases in thyroid and adrenal weights were observed in the rat chronic oral study. Thyroid weights were also increased in the dog following chronic exposure. However, no accompanying histopathology was observed.

    Acute and subchronic oral neurotoxicity studies in the rat did not show evidence of potential neurotoxicity. In the acute study, decreased hindlimb grip strength on day 0 was reported in males. This finding was only observed at the limit dose in males and was not observed in the subchronic neurotoxicity study and was therefore not considered evidence of neurotoxicity. No clinical signs of neurotoxicity or neurohistopathology were observed in other guideline studies.

    No maternal or developmental effects were observed in either the rat or rabbit oral developmental toxicity studies. In the rat 2-generation reproductive toxicity study, parental effects were limited to increased liver weight and microscopic periportal hypertrophy. No offspring or reproductive toxicity was observed. In a 28-day dietary immunotoxicity study in the rat, no immunotoxicity was observed, and the only observed effect was increased liver weights.

    There was no evidence of carcinogenicity in the rat dietary 24-month chronic toxicity/carcinogenicity study or the mouse dietary 18-month carcinogenicity study. No mutagenic or clastogenic potential was observed in the battery of genotoxicity studies on methoxyfenozide. Based on these findings, methoxyfenozide is classified as not likely to be carcinogenic to humans.

    Specific information on the studies received and the nature of the adverse effects caused by methoxyfenozide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document, “Methoxyfenozide. Human Health Draft Risk Assessment for Registration Review and New Use Risk Assessment to Support the Registration of Proposed Use on Chives, and Crop Group Expansions for Stone Fruit and Tree Nuts” in pp. 42-47 in docket ID number EPA-HQ-OPP-2014-0591.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for methoxyfenozide used for human risk assessment is discussed in Table 1 of Unit III.B. of the final rule published in the Federal Register of August 27, 2014 (79 FR 51103) (FRL-9913-99).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to methoxyfenozide, EPA considered exposure under the petitioned-for tolerances as well as all existing methoxyfenozide tolerances in 40 CFR 180.544. EPA assessed dietary exposures from methoxyfenozide in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for methoxyfenozide; therefore, a quantitative acute dietary exposure assessment is unnecessary.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA under the National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA), 2003 to 2008. As to residue levels in food, EPA used tolerance-level residues and the assumption of 100 percent crop treated (PCT) for all existing and proposed commodities.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that methoxyfenozide does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for methoxyfenozide. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The residues of concern in drinking water are methoxyfenozide and the degradates RH-117,236 and RH-131,154, which are only present at low concentrations. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for methoxyfenozide and its degradates in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of methoxyfenozide and its degradates. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

    Based on the FQPA Index Reservoir Screening Tool (FIRST), Screening Concentration in Ground Water (SCI-GROW), and the Pesticide Root Zone Model Ground Water (PRZM GW) models, the estimated drinking water concentrations (EDWCs) of methoxyfenozide and its degradates for chronic exposures for non-cancer assessments are estimated to be 7.57 parts per billion (ppb) for surface water and 214 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 214 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Methoxyfenozide is currently registered for use on ornamentals in and around home gardens, which could result in residential exposures. EPA assessed residential exposure using the following assumptions: Residential handlers were assessed for potential short-term inhalation exposures from mixing, loading, and applying methoxyfenozide. A quantitative dermal assessment for residential handlers was not conducted since there is no systemic toxicity associated with dermal exposures to methoxyfenozide. Adult post-application exposures were not quantitatively assessed since no dermal hazard was identified for methoxyfenozide and inhalation exposures are typically negligible in outdoor settings. Furthermore, the inhalation exposure assessment performed for residential handlers is representative of worse case inhalation exposures and is considered protective for post-application inhalation exposure scenarios.

    Post-application oral exposure to children is not expected since the extent to which young children engage in activities associated with areas where treated ornamentals are grown (or utilize these areas for prolonged periods of play) is low. Therefore, an incidental oral post-application exposure assessment was not conducted. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found methoxyfenozide to share a common mechanism of toxicity with any other substances, and methoxyfenozide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that methoxyfenozide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There is no evidence of qualitative or quantitative susceptibility of the developing fetus or offspring, based on the developmental and reproductive toxicity study results for methoxyfenozide. No developmental toxicity was observed in either the rat or rabbit developmental toxicity studies, and there was no evidence of offspring or reproductive toxicity in the rat 2-generation reproductive toxicity study.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for methoxyfenozide is complete.

    ii. There is no indication that methoxyfenozide is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.

    iii. There is no evidence that methoxyfenozide results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment was performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to methoxyfenozide in drinking water. Based on the discussion Unit III.C.3., regarding residential use patterns, EPA does not expect residential uses of methoxyfenozide to result in postapplication exposure of children or incidental oral exposures of toddlers. These assessments will not underestimate the exposure and risks posed by methoxyfenozide.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, methoxyfenozide is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to methoxyfenozide from food and water will utilize 84% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of methoxyfenozide is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Methoxyfenozide is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to methoxyfenozide.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 540. Because EPA's level of concern for methoxyfenozide is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, methoxyfenozide is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for methoxyfenozide.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, methoxyfenozide is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to methoxyfenozide residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology using high performance liquid chromatography (HPLC), with either tandem mass spectrometric detection (LC-MS/MS), or ultraviolet detection (UV) is available to enforce the tolerance expression.

    The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for methoxyfenozide in or on chive or the commodities associated with herb subgroup 19A or green onion subgroup 3-07B. Codex has established an MRL in or on tree nuts at 0.1 milligram/kilogram (mg/kg), which is harmonized with the recommended tolerance of 0.10 ppm in or on tree nut crop group 14-12. However, Codex has established a tolerance in or on stone fruit at 2 mg/kg that cannot be harmonized with the EPA tolerance in or on stone fruit group 12-12, except plum, prune, fresh at 3.0 ppm because the Organization for Economic Cooperation and Development (OECD) tolerance calculations that EPA uses to calculate U.S. tolerance levels result in a tolerance that is higher than the Codex MRL, and reduction of the tolerance would result in the risk of violative residues resulting from proper use according to label directions.

    C. Revisions to Petitioned-For Tolerances

    Based on the data supporting the petition, the Agency determined that the petitioned-for tolerance on chive, fresh leaves at 30.0 ppm should be established in or on chive, fresh leaves at 30 ppm because EPA establishes tolerances using whole numbers for tolerances of 10 ppm or more, per the OECD tolerance calculation procedures. The Agency also determined that the petitioned-for-amended tolerance in or on onion, green, subgroup 3-07B, except chive should be established in or on onion, green, subgroup 3-07B, except chive, fresh leaves. This is due to the fact that only chive, fresh leaves are included in subgroup 3-07B, and the Agency is establishing a separate tolerance for chive, fresh leaves at 30 ppm.

    V. Conclusion

    Therefore, tolerances are established for residues of methoxyfenozide, (3-methoxy-2-methylbenzoic acid 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide), in or on chive, fresh leaves at 30 ppm; fruit, stone, group 12-12, except plum, prune, fresh at 3.0 ppm; herb subgroup 19A, except chive, fresh leaves at 400 ppm; onion, green, subgroup 3-07B, except chive, fresh leaves at 5.0 ppm; and nut, tree, group 14-12 at 0.10 ppm. This rule additionally removes the established tolerances in or on fruit, stone, group 12, except plum, prune, fresh at 3.0 ppm; herb subgroup 19A, except chive at 400 ppm; nut, tree, group 14 at 0.10 ppm; onion, green, subgroup 3-07B at 5.0 ppm; pistachio at 0.10 ppm; and in paragraph (d)(2), chive at 4.5 ppm.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: October 20, 2015. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.544: a. Remove the following commodities from the table in paragraph (a): “Fruit, stone, group 12, except plum, prune, fresh”; “Herb subgroup 19A, except chive”; “Nut, tree, group 14”; “Onion, green, subgroup 3-07B”; and “Pistachio”. b. Remove the commodity “Chive” from the table in paragraph (d)(2). c. Add alphabetically add the following commodities to the table in paragraph (a).

    The additions and revisions read as follows:

    § 180.544 Methoxyfenozide; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Chive, fresh leaves 30 *    *    *    *    * Fruit, stone, group 12-12, except plum, prune, fresh 3.0 *    *    *    *    * Herb subgroup 19A, except chive, fresh leaves 400 *    *    *    *    * Nut, tree, group 14-12 0.10 Onion, green, subgroup 3-07B, except chive, fresh leaves 5.0 *    *    *    *    *
    [FR Doc. 2015-27461 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket ID FEMA-2015-0001] Final Flood Elevation Determinations AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).

    DATES:

    The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.

    ADDRESSES:

    The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.

    FOR FURTHER INFORMATION CONTACT:

    Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email) [email protected]

    SUPPLEMENTARY INFORMATION:

    The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

    This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

    Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

    National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

    Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

    List of Subjects in 44 CFR Part 67

    Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.

    Accordingly, 44 CFR part 67 is amended as follows:

    PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

    § 67.11 [Amended]
    2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation *Elevation in feet (NGVD)
  • + Elevation in feet (NAVD)
  • # Depth in feet above ground
  • ⁁ Elevation in
  • meters (MSL)
  • Modified
  • Communities
  • affected
  • Ouachita Parish, Louisiana, and Incorporated Areas Docket No.: FEMA-B-1089 Black Bayou Just upstream of Glenwood Drive +75 City of West Monroe, Unincorporated Areas of Ouachita Parish. Just downstream of Blanchard Street +79 Black Bayou Tributary Approximately 500 feet downstream of McMillan Road +79 City of West Monroe, Unincorporated Areas of Ouachita Parish. Approximately 1,320 feet upstream of Norris Road +115 Gravel Pit Branch At the confluence with Black Bayou +79 City of West Monroe. Just upstream of I-20 +89 Ouachita River Just upstream of Horseshoe Lake Road +87 Town of Sterlington, Unincorporated Areas of Ouachita Parish. Approximately 1.0 mile upstream of Ouachita City Road +88 Tupawek Bayou Approximately 1,000 feet downstream of Dean Chapel Road +97 Unincorporated Areas of Ouachita Parish. Approximately 680 feet downstream of Laird Road +139 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ⁁ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of West Monroe Maps are available for inspection at City Hall, 2305 North 7th Street, West Monroe, LA 71291. Town of Sterlington Maps are available for inspection at Town Hall, 503 Highway 2, Sterlington, LA 71280. Unincorporated Areas of Ouachita Parish Maps are available for inspection at the Ray Oliver Wright Health Unit, 1650 Desiard Street, Suite 202, Monroe, LA 71201.
    Dated: October 8, 2015. Roy E. Wright, Deputy Associate Administrator for Insurance and Mitigation, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2015-27469 Filed 10-27-15; 8:45 am] BILLING CODE 9110-12-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 100812345-2142-03] RIN 0648-XE216 Snapper-Grouper Fishery of the South Atlantic; 2015 Commercial Accountability Measure and Closure for South Atlantic Yellowtail Snapper AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the yellowtail snapper commercial sector in the exclusive economic zone (EEZ) of the South Atlantic for the 2015 fishing year through this temporary rule. Commercial landings for yellowtail snapper, as estimated by the Science and Research Director, are projected to reach the commercial annual catch limit (ACL) on October 31, 2015. Therefore, NMFS closes the yellowtail snapper commercial sector on October 31, 2015, through the remainder of the fishing year in the South Atlantic EEZ. This closure is necessary to protect the South Atlantic yellowtail snapper resource.

    DATES:

    This rule is effective 12:01 a.m., local time, October 31, 2015, until 12:01 a.m., local time, January 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic, which includes yellowtail snapper, is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The yellowtail snapper commercial ACL is 1,596,510 lb (725,686 kg), round weight. Under 50 CFR 622.193(n)(1)(i), NMFS is required to close the yellowtail snapper commercial sector when the commercial ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the yellowtail snapper commercial sector is projected to reach the ACL on October 31, 2015. Therefore, this temporary rule implements an AM to close the yellowtail snapper commercial sector in the South Atlantic EEZ, effective 12:01 a.m., local time, October 31, 2015.

    The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having yellowtail snapper on board must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, October 31, 2015. During the closure, the bag limit specified in 50 CFR 622.187(b)(4) and the possession limits specified in 50 CFR 622.187(c) apply to all harvest or possession of yellowtail snapper in or from the South Atlantic EEZ. These bag and possession limits apply on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters. During the closure, the sale or purchase of yellowtail snapper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of yellowtail snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 31, 2015, and were held in cold storage by a dealer or processor.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of yellowtail snapper, a component of the South Atlantic snapper-grouper fishery, and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(n)(1)(i) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the yellowtail snapper commercial sector constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect yellowtail snapper since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 22, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27421 Filed 10-26-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 141021887-5172-02] RIN 0648-XE269 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amounts of Pacific cod from catcher vessels greater than 60 feet (18.3 meters (m)) length overall (LOA) using pot gear, American Fisheries Act (AFA) trawl catcher processors (C/Ps), and catcher vessels using trawl gear to Amendment 80 (A80) C/Ps, C/Ps using hook-and-line gear, and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2015 total allowable catch of Pacific cod to be harvested.

    DATES:

    Effective October 23, 2015, through 2400 hrs, Alaska local time (A.l.t.), December 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2015 Pacific cod TAC specified for catcher vessels greater than 60 feet (18.3 m) LOA using pot gear in the BSAI is 17,641 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and reallocation (80 FR 57105, September 22, 2015). The Regional Administrator has determined that catcher vessels greater than 60 feet (18.3 m) LOA using pot gear in the BSAI will not be able to harvest 1,000 mt of the remaining 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(5).

    The 2015 Pacific cod TAC specified for catcher vessels using trawl gear in the BSAI is 43,224 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and reallocation (80 FR 57105, September 22, 2015). The Regional Administrator has determined that catcher vessels using trawl gear will not be able to harvest 3,870 mt of the remaining 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(9).

    The 2015 Pacific cod TAC specified for AFA trawl C/Ps in the BSAI is 5,623 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and reallocation (80 FR 57105, September 22, 2015). The Regional Administrator has determined that AFA trawl C/Ps will not be able to harvest 1,000 mt of the remaining 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(7).

    Therefore, in accordance with § 679.20(a)(7)(iii)(A) and § 679.20(a)(7)(iii)(B), NMFS reallocates 5,870 mt of Pacific cod to A80 C/Ps, C/Ps using hook-and-line gear, and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area.

    The harvest specifications for Pacific cod included in the final 2015 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015, 80 FR 51757, August 26, 2015, and 80 FR 57105, September 22, 2015) are revised as follows: 16,641 mt for catcher vessels greater than 60 feet (18.3 m) LOA using pot gear, 39,354 mt for catcher vessels using trawl gear, 4,623 mt to AFA trawl C/Ps, 32,216 mt to A80 C/Ps, 111,071 mt for C/Ps using hook-and-line, and 5,829 mt for C/Ps using pot gear.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from multiple sectors to A80 C/Ps, C/Ps using hook-and-line gear, and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 19, 2015.

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

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 23, 2015. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27429 Filed 10-23-15; 4:15 pm] BILLING CODE 3510-22-P
    80 208 Wednesday, October 28, 2015 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1211 [Doc. No. AMS-FV-11-0074; PR-A1, A2, B and B2] Hardwood Lumber and Hardwood Plywood Promotion, Research and Information Order; Termination of Rulemaking Proceeding AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Termination of proceeding.

    SUMMARY:

    This action terminates a rulemaking proceeding that proposed to establish a Hardwood Lumber and Hardwood Plywood Promotion, Research and Information Order (Order) under authority in the Commodity Promotion, Research and Information Act of 1996 (1996 Act). The Order was proposed by the proponent group, the Blue Ribbon Committee (BRC), and would have authorized a national research and promotion program for hardwood lumber and hardwood plywood. USDA issued a supplemental notice of proposed rulemaking in response to the extensive comments received. Based on comments received, outstanding substantive questions and significant proposed modifications from stakeholders, USDA is terminating the proceeding. Termination of this proceeding will remove ex parte communication prohibitions and allow USDA to engage fully with all interested parties to discuss and consider the evolving needs of the industry going forward.

    DATES:

    This termination is made on October 29, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Patricia A. Petrella, Promotion and Economics Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; Telephone: (301) 334-2891, Fax: (301) 334-2896, or Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    Prior documents in this proceeding include: A proposed rule published in the Federal Register on November 13, 2013 (78 FR 68298), which provided a 60-day comment period that ended on January 13, 2014. On January 16, 2014, a notice was published in the Federal Register that reopened and extended the comment period until February 18, 2014 (79 FR 2805). A supplemental notice of proposed rulemaking was published in the Federal Register on June 9, 2015 (80 FR 32493). On July 1, 2015, a notice was published in the Federal Register that extended the comment period until September 7, 2015 (80 FR 37555).

    Preliminary Statement

    In June 2011, USDA received a proposal for a national research and promotion program for hardwood lumber and hardwood plywood from the BRC. The BRC is a committee of 14 hardwood lumber and hardwood plywood industry leaders representing small and large manufacturers geographically distributed throughout the United States.

    The BRC proposed a program that would be financed by an assessment on hardwood lumber and hardwood plywood manufacturers and administered by a board of industry members selected by the Secretary. The purpose of the program would be to strengthen the position of hardwood lumber and hardwood plywood in the marketplace and maintain and expand markets for hardwood lumber and hardwood plywood.

    A proposed rule was published in the Federal Register on November 13, 2013, which provided a 60-day comment period that ended on January 13, 2014. On January 16, 2014, a notice was published in the Federal Register that reopened and extended the comment period until February 18, 2014. In response to the proposed rule, USDA received over 900 comments; a significant majority of the comments opposed the proposed program. In order to address the voluminous comments, USDA issued a supplemental notice of proposed rulemaking on June 9, 2015, which reopened the comment period only with respect to specific issues. The comment period was extended until September 7, 2015, by a notice in the Federal Register on July 1, 2015. In response to the supplemental notice, USDA received over 300 comments; a majority of the comments continued to oppose the program. Based on all the comments received, outstanding substantive questions and significant proposed modifications to the proposed program from stakeholders, USDA is terminating the proceeding. This action also terminates the proposed rules on the referendum procedures.

    Termination of this proceeding will remove ex parte communication prohibitions and allow USDA to engage fully with all interested parties to discuss and consider the evolving needs of the industry going forward. Based on the above, USDA is terminating this rulemaking proceeding.

    Regulatory Flexibility Act and Paperwork Reduction Act

    As part of the proceeding conducted for this rulemaking, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601-612) and the Paperwork Reduction Act of 1955 (Pub. L. 104-13) were considered. Because this action terminates the underlying rulemaking proceeding, the economic conditions of small entities are not changed as a result of this action, nor have any compliance requirements changed. Also, this action does not provide for any new or changed reporting and recordkeeping requirements. Accordingly, all supporting forms for the proposed program will be withdrawn.

    Termination of Proceeding

    In view of the foregoing, it is hereby determined that the proceeding proposing a national research and promotion program for hardwood lumber and hardwood plywood should be and is hereby terminated.

    List of Subjects in 7 CFR Part 1211

    Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Hardwood lumber promotion, Hardwood plywood promotion, Reporting and recordkeeping requirements.

    Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    Dated: October 23, 2015. Rex A. Barnes, Associate Administrator, Agricultural Marketing Service.
    [FR Doc. 2015-27448 Filed 10-27-15; 8:45 am] BILLING CODE 3410-02-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Chapter II [Release Nos. 33-9965, 34-76240, 39-2507, IC-31879, IA-4238; File No. S7-21-15] List of Rules To Be Reviewed Pursuant to the Regulatory Flexibility Act AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Publication of list of rules scheduled for review.

    SUMMARY:

    The Securities and Exchange Commission is publishing a list of rules to be reviewed pursuant to Section 610 of the Regulatory Flexibility Act. The list is published to provide the public with notice that these rules are scheduled for review by the agency and to invite public comment on whether the rules should be continued without change, or should be amended or rescinded to minimize any significant economic impact of the rules upon a substantial number of such small entities.

    DATES:

    Comments should be submitted by November 27, 2015.

    ADDRESSES:

    Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's Internet comment form (http://www.sec.gov/rules/other.shtml); or

    • Send an email to [email protected] Please include File Number [S7-21-15] on the subject line; or

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

    Paper Comments

    • Send paper comments to Brent Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

    All submissions should refer to File No. S7-21-15. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/other.shtml). Comments also are available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT:

    Anne Sullivan, Office of the General Counsel, 202-551-5019.

    SUPPLEMENTARY INFORMATION:

    The Regulatory Flexibility Act (“RFA”), codified at 5 U.S.C. 600-611, requires an agency to review its rules that have a significant economic impact upon a substantial number of small entities within ten years of the publication of such rules as final rules. 5 U.S.C. 610(a). The purpose of the review is “to determine whether such rules should be continued without change, or should be amended or rescinded . . . to minimize any significant economic impact of the rules upon a substantial number of such small entities.” 5 U.S.C. 610(a). The RFA sets forth specific considerations that must be addressed in the review of each rule:

    • The continued need for the rule;

    • The nature of complaints or comments received concerning the rule from the public;

    • The complexity of the rule;

    • The extent to which the rule overlaps, duplicates or conflicts with other federal rules, and, to the extent feasible, with state and local governmental rules; and

    • The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. 5 U.S.C. 610(c).

    The Securities and Exchange Commission, as a matter of policy, reviews all final rules that it published for notice and comment to assess not only their continued compliance with the RFA, but also to assess generally their continued utility. When the Commission implemented the Act in 1980, it stated that it “intend[ed] to conduct a broader review [than that required by the RFA], with a view to identifying those rules in need of modification or even rescission.” Securities Act Release No. 6302 (Mar. 20, 1981), 46 FR 19251 (Mar. 30, 1981). The list below is therefore broader than that required by the RFA, and may include rules that do not have a significant economic impact on a substantial number of small entities. Where the Commission has previously made a determination of a rule's impact on small businesses, the determination is noted on the list.

    The Commission particularly solicits public comment on whether the rules listed below affect small businesses in new or different ways than when they were first adopted. The rules and forms listed below are scheduled for review by staff of the Commission during the next 12 months. The list includes 21 rules adopted by the Commission in 2004.

    Title: Shareholder Reports and Quarterly Portfolio Disclosure of Registered Management Investment Companies.

    Citation: 17 CFR 270.30b1-5; 17 CFR 270.30a-2; 17 CFR 270.30a-3; 17 CFR 270.30d-1; 17 CFR 249.331; 17 CFR 249.332; 17 CFR 239.14; 17 CFR 239.15A; 17 CFR 239.17; 17 CFR 274.11A; 17 CFR 274.11a-1; 17 CFR 274.11b; 17 CFR 274.130; 17 CFR 274.128; 17 CFR 210.6; and 17 CFR 210.12.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77s(a), and 77z-3; 78j(b), 78l, 78m, 78o(d), 78w(a), and 78mm; 80a-6(c), 80a-8, 80a-24, 80a-24(a), 80a-29, 80a-30, and 80a-37.

    Description: The amendments require open-end management investment companies to disclose fund expenses borne by shareholders during the reporting period in reports to shareholders; permit a management investment company registered under the Investment Company Act to include a summary portfolio schedule in its reports to shareholders; exempt money market funds from including a portfolio schedule in reports to shareholders provided that the complete portfolio schedule is filed with the Commission on Form N-CSR and is provided to shareholders free of charge; require reports to shareholders by funds to include a tabular or graphic presentation of a fund's portfolio holdings by identifiable categories; require a fund to file its complete portfolio schedule as of the end of its first and third fiscal quarters with the Commission on new Form N-Q and certified by the fund's principal executive and financial officers; and require a mutual fund to include Management's Discussion of Fund Performance in its annual report to shareholders.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. 33-8393 (Feb. 27, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. IC-25870 (Dec. 18, 2002) at that time.

    Title: Adoption of Amendments to the Rules of Practice and Delegations of Authority of the Commission.

    Citation: 17 CFR 200.30-7; 17 CFR 200.30-14; 17 CFR 201.100; 17 CFR 201.102; 17 CFR 111; 17 CFR 201.141; 17 CFR 201.150-154; 17 CFR 201.201-202; 17 CFR 201.210; 17 CFR 201.230-233; 17 CFR 201.350-351; 17 CFR 201.360; 17 CFR 201.400; 17 CFR 201.411; 17 CFR 201.420; 17 CFR 201.430; 17 CFR 201.440-441; 17 CFR 201.450-451; 17 CFR 201.460; 17 CFR 201.460; 17 CFR 201.470; 17 CFR 201.601; 17 CFR 201.1100-1106; 17 CFR 240.19d-4.

    Authority: 15 U.S.C. 7202; 15 U.S.C. 77s, 78s, 77sss, 78w, 79t, . 80a-37 and 80a-39 and 80b-11.

    Description: The Commission adopted rules and rule amendments to implement provisions under the Sarbanes-Oxley Act of 2002 that provided for the creation of Fair Funds and for Commission review of disciplinary actions imposed by the Public Company Accounting Oversight Board. The Commission also adopted rules and rule amendments to clarify or modify a variety of aspects of administrative proceedings, including certain motions, petitions, and filings, service and form of filings, and procedures for the production or subpoena of documents.

    Prior Commission Determination under 5 U.S.C. 610: The Commission determined in Rel. No. 34-49412 (March 12, 2004) that the revision related solely to agency organization, procedure, or practice, and that, therefore, the Administrative Procedure Act and the Regulatory Flexibility Act did not apply to the rule. The Commission received no comments on this determination

    Title: Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date.

    Citation: 17 CFR 240.13a-11; 17 CFR 240.15d-11; 17 CFR 249.308.

    Authority: 15 U.S.C. 77g, 77l, 77s, 78j, 78l, 78m, 78o, and 78w.

    Description: The Commission adopted rules and amendments to (i) expand the number of events that are reportable on Form 8-K, adding eight new items to the form, and transferring two items from the periodic reports, (ii) expand disclosures under two existing Form 8-K items, (iii) reorganize Form 8-K items into topical categories, (iv) shorten the Form 8-K filing deadline for most items to four business days after the occurrence of an event triggering the disclosure requirements of the form, and (v) adopt a limited safe harbor from liability for failure to file certain of the required Form 8-K reports.

    Prior Commission Determination under 5 U.S.C. 610: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the adoption of Release No. 33-8400 (March 16, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 33-8106 (June 17, 2002) at that time.

    Title: Disclosure Regarding Market Timing and Selective Disclosure of Portfolio Holdings.

    Citation: 17 CFR 239.15A; 17 CFR 239.17a; 17 CFR 239.17b; 17 CFR 239.17c; 17 CFR 274.11A; 17 CFR 274.11b; 17 CFR 274.11c; and 17 CFR 274.11d.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77j, 77ss(a), 80a-3, 80a-22, 80a-24(a), 80a-29, and 80a-37.

    Description: The amendments require improved disclosure in fund prospectuses of a mutual fund's risks, policies, and procedures. In addition, the amendments clarify instructions to registration forms to require all mutual funds (other than money market funds) and insurance company managed separate accounts that offer variable annuities to explain in their prospectuses both the circumstances under which they will use fair value pricing and the effects of using fair value pricing. The amendments also require mutual funds and insurance company managed separate accounts that offer variable annuities to disclose their policies with respect to disclosure of portfolio holdings information.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. 33-8408 (Apr. 19, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. IC-26287 (Dec. 11, 2003) at that time.

    Title: Mandated Electronic Filing for Form ID.

    Citation: 17 CFR 232.10; 17 CFR 239.63; 17 CFR 249.446, 17 CFR 259.602; 17 CFR 269.7; 17 CFR 274.402.

    Authority: 15 U.S.C. 77s, 77sss, 78c(b), 78m(a), 78w(a), 78ll(d),79t, 80a-29 and 80a-37.

    Description: The Commission adopted rule and form amendments to mandate the electronic filing of Form ID on a new on-line system.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the adoption of Release No. 33-8410 April 21, 2004). The Commission solicited comments concerning the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 33-8399 (March 15, 2004) but received no comment letters on the analysis.

    Title: Foreign Bank Exemption from the Insider Lending Prohibition of Exchange Act Section 13(k).

    Citation: 17 CFR 240.13k-1.

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j,77s, 78c, 78l, 78m, 78w, and 78mm.

    Description: The Commission adopted a rule that grants qualified foreign banks an exemption from the insider lending prohibition under Section 13(k) of the Securities Exchange Act of 1934.

    Prior Commission Determination under 5 U.S.C. 610: Pursuant to Section 605(b) of the Regulatory Flexibility Act, the Commission certified that the rule would not have a significant economic impact on a substantial number of small entities. This certification was incorporated into the proposing release, Release No. 34-48481 (September 11, 2003). As stated in the adopting release, Release No. 34-49616 (April 26, 2004), the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act Certification.

    Title: Disclosure of Breakpoint Discounts by Mutual Funds.

    Citation: 17 CFR 239.15A; 17 CFR 274.11A.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77j, 77s(a), 80a-8, 80a-24(a), 80a-29 and 80a-37.

    Description: The form amendments require an open-end management investment company to provide enhanced disclosure regarding breakpoint discounts on front-end sales loads. Under the amendments, an open-end management investment company is required to describe in its prospectus any arrangements that result in breakpoints in sales loads and to provide a brief summary of shareholder eligibility requirements.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. 33-8427 (June 7, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 33-8347 (Dec. 17, 2003) at that time.

    Title: Alternative Net Capital Requirements for Broker-Dealers That Are Part of Consolidated Supervised Entities.

    Citation: 17 CFR 200.30-3, 17 CFR 240.15c3-1, 17 CFR 240.17a-4, 17 CFR 240.17a-5, 17 CFR 240.17a-11, 17 CFR 240.17h-1T, and 17 CFR 240.17h-2T.

    Authority: 15 U.S.C. 78o(c), 78q(a), 78w, 78x(b) and 78mm.

    Description: The Commission adopted rule amendments that established a voluntary, alternative method of computing deductions to net capital for certain broker-dealers. This alternative method permits a broker-dealer to use mathematical models to calculate net capital requirements for market and derivatives-related credit risk. A broker-dealer using the alternative method of computing net capital is subject to enhanced net capital, early warning, recordkeeping, reporting, and certain other requirements, and must implement and document an internal risk management system.

    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to section 605(b) of the Regulatory Flexibility Act, the Commission certified that the amendments would not have a significant economic impact on a substantial number of small entities. This certification was incorporated into the proposing release, Release No. 34-48690 (Oct. 24, 2003). As stated in the adopting release, Release No. 34-49830 (June 8, 2004), the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act certification.

    Title: Disclosure Regarding Approval of Investment Advisory Contracts by Directors of Investment Companies.

    Citation: 17 CFR 239.14; 17 CFR 239.15A; 17 CFR 239.17a; 17 CFR 274.11A; 17 CFR 274.11a-1; 17 CFR 274.11b; 17 CFR 240.14a-101.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77j, 77s(a), 78n, 78w(a)(1), 80a-8, 80a-15, 80a-20, 80a-24(a), 80a-29 and 80a-37.

    Description: The rule and form amendments require a registered management investment company to provide disclosure in its reports to shareholders regarding the material factors and the conclusions with respect to those factors that formed the basis for the board's approval of advisory contracts during the most recent fiscal half-year. The amendments are also designed to encourage improved disclosure in proxy statements regarding the basis for the board's recommendation that shareholders approve an advisory contract.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. 34-49928 (June 23, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 34-49014 (Feb. 11, 2004) at that time.

    Title: Collection Practices under Section 31 of the Exchange Act.

    Citation: 17 CFR 200.30-3, 17 CFR 240.31.

    Authority: 15 U.S.C. 78f, 78o-3, 78q-1, 78s, 78w(a) and 78ee.

    Description: The rule established new procedures to govern the calculation, payment, and collection of fees and assessments on securities transactions owed by national securities exchanges and national securities associations to the Commission pursuant to Section 31 of the Securities Exchange Act of 1934. Under these new procedures, each exchange or association must provide the Commission with data on its securities transactions. The Commission calculates the amount of fees and assessments due based on the volume of these transactions and bills the exchange or association that amount.

    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to Section 605(b) of the Regulatory Flexibility Act, the Commission certified that Rule 31 and Form R31 would not have a significant economic impact on a substantial number of small businesses. This certification was set forth in the Proposing Release No. 34-49014 (January 20, 2004). As stated in the adopting release, Release No. 34-49928 (June 28, 2004), the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act Certification.

    Title: Investment Adviser Codes of Ethics.

    Citation: 17 CFR 275.204A-1; 17 CFR 275.204-2; 17 CFR 279.1; 17 CFR 270.17j-1.

    Authority: 15 U.S.C. 77s(a), 77sss(a), 78a-37(a), 78w(a), 78bb(e)(2),79w(a), 80a-17(j), 80a-37(a), 80b-2(a)(17), 80b-3(c)(1), 80b-4, 80b-4(a), 80b-6(4) and 80b-11(a).

    Description: The rule and rule amendments require registered advisers to adopt codes of ethics. The codes of ethics must set forth standards of conduct expected of advisory personnel and address conflicts that arise from personal trading by advisory personnel. Among other things, the rule and rule amendments require advisers' supervised persons to report their personal securities transactions, including transactions in any mutual fund managed by the adviser. The rule and rule amendments are designed to promote compliance with fiduciary standards by advisers and their personnel.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. IA-2256 (July 2, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. IA-2209 (Jan. 20, 2004) at that time.

    Title: Covered Securities Pursuant to Section 18 of the Securities Act of 1933.

    Citation: 17 CFR 230.146.

    Authority: 15 U.S.C. 77r(b)(1)(B) and 77s(a).

    Description: The Commission amended a rule under Section 18 of the Securities Act of 1933 to designate options listed on the International Securities Exchange, Inc. as covered securities. Covered securities under Section 18 of the Securities Act are exempt from state law registration requirements.

    Prior Commission Determination Under 5 U.S.C. 601: Pursuant to Section 605(b) of the Regulatory Flexibility Act, the Commission certified that amending Rule 146(b) would not have a significant economic impact on a substantial number of small entities. The certification was incorporated in the proposing release, Release No. 33-8404 (March 22, 2004). As stated in the adopting release, Release No. 33-8442 (July 14, 2004), the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act Certification.

    Title: Investment Company Governance.

    Citation: 17 CFR 270.0-1(a); 17 CFR 270.10f-3; 17 CFR 270.12b-1(c); 17 CFR 270.15a-4(b)(2); 17 CFR 270.17a-7(f); 17 CFR 270.17a-8(a)(4); 17 CFR 270.17d-1(d)(7); 17 CFR 270.17e-1(c); 17 CFR 270.17g-1(j)(3); 17 CFR 270.18f-3(e); 17 CFR 270.23c-3(b)(8); 17 CFR 270.31a-2.

    Authority: 15 U.S.C., 80a-6(c), 80a-10(f), 80a-12(b), 80a-17(d), 80a-17(g), 80a-23(c), 80a-30(a), and 80a-37(a).

    Description: A Federal appeals court vacated certain amendments adopted by the Commission to rules under the Investment Company Act. The amendments, first proposed on January 15, 2004, would have imposed two conditions on investment companies (“funds”) relying on certain exemptive rules. First, fund boards would have to have been comprised of at least 75 percent independent directors. Second, the boards would have to have been chaired by an independent director. In June 2006 and December 2006, the Commission requested additional comment regarding the fund governance provisions.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 relating to the amendments to the exemptive rules and the Commission's rules on investment company governance in conjunction with the Commission's adoption of Release No. IC-26520 on July 27, 2004. Comments to the proposing release (Release No. IC-26323 (Jan. 24, 2004)) and any comments to the Initial Regulatory Flexibility Analysis were considered in connection with the Commission's adoption of Release No. IC-26520.

    Title: Short Sales.

    Citation: 17 CFR 242.200, 17 CFR 242.202T, 17 CFR 242.203.

    Authority: 15 U.S.C. 78b, 78c(b), 78i(h), 78j, 78k-1, 78o, 78q(a), 78q-1, 78w(a), and 78mm.

    Description: The Commission adopted new Regulation SHO, which defined ownership of securities, specified aggregation of long and short positions, and required broker-dealers to mark sales in all equity securities “long,” “short,” or “short exempt.” Regulation SHO also included a temporary rule that established procedures for the Commission to suspend temporarily the operation of the “tick” test and any short sale price test of any exchange or national securities association for specified securities. Regulation SHO also required short sellers in all equity securities to locate securities to borrow before selling, and also imposed additional delivery requirements on broker-dealers for securities in which a substantial number of failures to deliver had occurred. The Commission also adopted amendments that removed the shelf offering exception and issued interpretive guidance addressing sham transactions designed to evade Regulation M.

    Prior Commission Determination Under 5 U.S.C. 610: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the adoption of Release No. 34 -50103 (July 28, 2004). The Commission solicited comment on the Initial Regulatory Flexibility Analysis prepared in the proposing release, Release No. 34-48709 (October 28, 2003), but received no comment on that analysis. The Commission did receive comments related to small business, and considered those comments in the adopting release.

    Title: Disclosure Regarding Portfolio Managers of Registered Management Investment Companies.

    Citation: 17 CFR 239.14; 17 CFR 239.15A; 17 CFR 239.17a; 17 CFR 249.331; 17 CFR 270.30a-2; 17 CFR 274.11a-1; 17 CFR 274.11A; 17 CFR 274.11b; 17 CFR 274.128.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77j, 77s(a), 78(j(b), 78m, 78n, 78o(d), 78w(a), 78mm,, 80a-8, 80a-24(a), 80a-29, 80a-37, 80a-39.

    Description: The forms and rule amendments improve the disclosure provided by registered investment companies regarding their portfolio managers. The amendments extend the existing requirement that a registered management investment company provide basic information in its prospectus regarding its portfolio managers to include the members of management teams. The amendments also require a registered management investment company to disclose additional information about its portfolio managers, including other accounts that they manage, compensation structure, and ownership of securities in the investment company.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No 33-8458 (Aug. 23, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 33-8396 (Mar. 11, 2004) at that time.

    Title: Rule 15c3-3 Reserve Requirements for Margin Related to Security Futures Products.

    Citation: 17 CFR 200.30-3 and 17 CFR 240.15c3-3a.

    Authority: 15 U.S.C. 78o, 78q, 78w(a), and 78mm.

    Description: The Commission adopted amendments to the formula for determination of customer reserve requirements of broker-dealers under the Exchange Act to address issues related to customer margin for security futures products. The amendments permit a broker-dealer to include margin related to security futures products written, purchased, or sold in customer securities accounts and on deposit with a registered clearing agency or a derivatives clearing organization as a debit item in calculating its customer reserve requirement under specified conditions. The amendments were intended to help ensure that a broker-dealer is not required to fund its customer reserve requirements with proprietary assets.

    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to section 605(b) of the Regulatory Flexibility Act, the Commission certified that the amendments to Rule 15c3-3a would not have a significant impact on a substantial number of small entities. This certification was incorporated into the proposing release, Release No. 46492 (Sept. 12, 2002). As stated in the adopting release, Release No. 33-50295, the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act certification.

    Title: Prohibition on the Use of Brokerage Commissions to Finance Distribution.

    Citation: 17 CFR 270.12b-1.

    Authority: 15 U.S.C. 80a-12(b) and 80a-37(a).

    Description: The amendments amend the rule that governs the use of assets of open-end management investment companies (funds) to distribute their shares. The amended rule prohibits funds from paying for the distribution of their shares with brokerage commissions. The amendments are designed to end a practice that poses significant conflicts of interest and may be harmful to funds and fund shareholders.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. IC-26591 (September 2, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. IC-26356 (Feb.24, 2004) at that time.

    Title: Proposed Rule Changes of Self-Regulatory Organizations.

    Citation: 17 CFR 240.11Aa3-2 and 17 CFR 240.19b-4.

    Authority: 15 U.S.C. 78c, 78f, 78k-1, 78o-3, 78o-4, 78q-1, 78s(b), 78w(a), 78mm.

    Description: The Commission adopted rule amendments that require self-regulatory organizations (SROs) to file proposed rule changes electronically with the Commission, rather than in paper form. In addition, the Commission required SROs to post all proposed rule changes, as well as current and complete sets of their rules, on their Web sites. The Commission also required all participants in National Market System Plans (NMS Plans) to arrange for posting on a designated Web site a current and complete version of the NMS Plan.

    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to Section 605(b) of the Regulatory Flexibility Act, the Commission certified that amending Rule 19b-4 and Form 19b-4 would not have a significant economic impact on a substantial number of small businesses. This certification was incorporated in the proposing release, Release No. 49505 (March 30, 2004). As stated in the adopting release, Release No. 34-50486 (Oct.4, 2004), the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act certification.

    Title: Disposal of Consumer Report Information.

    Citation: 17 CFR 248.1; 17 CFR 248.2; 17 CFR 248.30.

    Authority: 15 U.S.C. 6801(b), 15 U.S.C. 1681w, 15 U.S.C. 78q, 78w, 78mm, 80a-30(a), 80a-37, 80b-4 and 80b-11.

    Description: The amendments to the rule under Regulation S-P require financial institutions to adopt policies and procedures to safeguard customer information. The amended rule implements the provision in section 216 of the Fair and Accurate Credit Transactions Act of 2003 requiring proper disposal of consumer report information and records. Section 216 directs the Commission and other federal agencies to adopt regulations requiring that any person who maintains or possesses consumer report information or any compilation of consumer report information derived from a consumer report for a business purpose must properly dispose of the information. The amendments also require the policies and procedures adopted under the safeguard rule to be in writing.

    Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the Commission's adoption of Release No. 34-50781 (Dec. 2, 2004). The Commission considered comments received on the proposing release and the Initial Regulatory Flexibility Analysis prepared in Release No. 34-50361 (Sept. 14, 2004) at that time.

    Title: Issuer Restrictions or Prohibitions on Ownership by Securities Intermediaries.

    Citation: 17 CFR 240.17Ad-20.

    Authority: 15 U.S.C. 78q-1(a)(1), 78q-1(a)(2), 78q-1(d), and 78w(a).

    Description: The Commission adopted a new rule to prohibit registered transfer agents from effecting any transfer of any equity security registered under Section 12 or any equity security that subjects an issuer to reporting under Section 15(d) of the Exchange Act if such security is subject to any restriction or prohibition on transfer to or from a securities intermediary, such as clearing agencies, banks, or broker-dealers.

    Prior Commission Determination Under 5 U.S.C. 610: A Final Regulatory Flexibility Analysis was prepared in accordance with 5 U.S.C. 604 in conjunction with the adoption of Release No. 34-50758A (December 7, 2004). The Commission solicited comment on the Initial Regulatory Flexibility Analysis prepared in the proposing release, Release No. 49809 (June 4, 2004), but received no comment on that analysis.

    Title: Asset-Backed Securities.

    Citation: 17 CFR 210.1-02, 17 CFR 210-2.01, 17 CFR 210.2-02, 17 CFR 210.2-07, 17 CFR 229.10, 17 CFR 229.202, 17 CFR 229.308, 17 CFR 229.401, 17 CFR 229.406, 17 CFR 229.501, 17 CFR 229.503, 17 CFR 229.512, 17 CFR 229.601, 17 CFR 229.701, 17 CFR 229.1100 through 1123, 17 CFR 230.411, 17 CFR 230.434, 17 CFR 230.139a, 17 CFR 230.167, 17 CFR 230.190, 17 CFR 230.191, 17 CFR 230.426, 17 CFR 232.311, 17 CFR 232.312, 17 CFR 239.11, 17 CFR 239.12, 17 CFR 239.13, 17 CFR 239.18, 17 CFR 239.31, 17 CFR 239.32, 17 CFR 239.33, 17 CFR 240.10A-3, 17 CFR 240.12b-2, 17 CFR 240.12b-15, 17 CFR 240.12b-25, 17 CFR 240.13a-10, 17 CFR 240.13a-11, 17 CFR 240.13a-13, 17 CFR 240.13a-14, 17 CFR 240.13a-15, 17 CFR 240.13a-16, 17 CFR 240.15c2-8, 17 CFR 240.15d-10, 17 CFR 240.15d-11, 17 CFR 240.15d-13, 17 CFR 240.15d-14, 17 CFR 240.15d-15, 17 CFR 240.15d-16, 17 CFR 240.3a12-12, 17 CFR 240.3b-19, 17 CFR 240.13a-17, 17 CFR 240.13a-18, 17 CFR 240.15d-17, 17 CFR 240.15d-18, 17 CFR 240.15d-22, 17 CFR 240.15d-23, 17 CFR 242.100, 17 CFR 245.101, 17 CFR 249.220f, 17 CFR 249.240f, 17 CFR 249.308, 17 CFR 249.310, 17 CFR 249.312, and 17 CFR 249.322.

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77q(a), 77s, 77s(a), 77sss(a), 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 7nnn, 77sss, 78(b), 78c, 78c(b), 78g(c)(2), 78i(a), 78j, 78j-1, 78k-1(c), 78l, 78m, 78n, 78o, 78o(b), 78o(c), 78o(d), 78q, 78q(a), 78q(b), 78q(h), 78u-5, 78(w), 78w(a), 78dd-1, 78ll, 78ll(d), 78mm, 79e, 79e(b), 79f, 79f, 79j, 79j(a), 79l, 79m, 79n, 79q, 79t, 79t(a), 80a-8, 80a-20, 80a-23, 80a-24, 80a-26, 80a-29, 80a-30, 80a-31, 80a-37, 80a-37(a), 80b-3, 80b-11, 7201 et seq., 7202, 7262, and 18 U.S.C. 1350.

    Description: The Commission adopted new and amended rules and forms to address comprehensively the registration, disclosure and reporting requirements for asset-backed securities under the Securities Act of 1933 and the Securities Exchange Act of 1934. The final rules and forms accomplish the following: update and clarify the Securities Act registration requirements for asset-backed securities offerings, including expanding the types of asset-backed securities that may be offered in delayed primary offerings on Form S-3; consolidate and codify existing interpretive positions that allow modified Exchange Act reporting that is more tailored and relevant to asset-backed securities; provide tailored disclosure guidance and requirements for Securities Act and Exchange Act filings involving asset-backed securities; and streamline and codify existing interpretive positions that permit the use of written communications in a registered offering of asset-backed securities in addition to the statutory registration statement prospectus.

    Prior Commission Determination under 5 U.S.C. 610: Pursuant to Section 605(b) of the Regulatory Flexibility Act, the Commission certified that the new and amended rules and forms would not have a significant economic impact on a substantial number of small entities. This certification was incorporated into the proposing release, Release No. 33-8419 (May 3, 2004). As stated in the adopting release, Release No. 33-8518 (December 22, 2004) the Commission received no comments concerning the impact on small entities or the Regulatory Flexibility Act Certification.

    By the Commission.

    Dated: October 22, 2015. Brent J. Fields, Secretary.
    [FR Doc. 2015-27385 Filed 10-27-15; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 172 [Docket No. FDA-2015-F-3663] Grocery Manufacturers Association; Filing of Food Additive Petition AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of petition.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing that we have filed a petition, submitted by the Grocery Manufacturers Association, proposing that the food additive regulations be amended to provide for the safe use of partially hydrogenated vegetable oils (PHOs) in various food applications.

    DATES:

    This food additive petition was filed on October 1, 2015. Submit either electronic or written comments on the petitioner's environmental assessment by November 27, 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-2015-F-3663 for “Grocery Manufacturers Association; Filing of Food Additive Petition”. 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:

    Ellen Anderson, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-1309.

    SUPPLEMENTARY INFORMATION:

    Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), we are giving notice that we have filed a food additive petition (FAP 5A4811), submitted by the Grocery Manufacturers Association, 1350 I Street, NW., Suite 300, Washington, DC 20005. The petition proposes to amend the food additive regulations in 21 CFR part 172 Food Additives Permitted for Direct Addition to Food for Human Consumption to provide for the safe use of PHOs in the following food applications at specified maximum use levels: As a carrier or component thereof for flavors or flavorings, as a diluent or component thereof for color additives, as an incidental additive or processing aid, and as a direct additive in specific foods.

    We are reviewing the potential environmental impact of this petition. To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), we are placing the environmental assessment submitted with the petition that is the subject of this notice on public display at the Division of Dockets Management (see DATES and ADDRESSES) for public review and comment.

    We will also place on public display, in the Division of Dockets Management and at http://www.regulations.gov, any amendments to, or comments on, the petitioner's environmental assessment without further announcement in the Federal Register. If, based on our review, we find that an environmental impact statement is not required, and this petition results in a regulation, we will publish the notice of availability of our finding of no significant impact and the evidence supporting that finding with the regulation in the Federal Register in accordance with 21 CFR 25.51(b).

    Dated: October 22, 2015. Dennis M. Keefe, Director, Office of Food Additive Safety, Center for Food Safety and Applied Nutrition.
    [FR Doc. 2015-27277 Filed 10-27-15; 8:45 am] BILLING CODE 4164-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 62, and 78 [EPA-HQ-OAR-2015-0199; FRL 9936-27-OAR] RIN 2060-AS47 Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of public hearings.

    SUMMARY:

    The Environmental Protection Agency (EPA) is announcing four public hearings to be held on the proposed “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations.”

    DATES:

    The EPA will be holding four public hearings on the proposed federal plan to accept oral comments.

    The hearings will be held:

    1. November 12-13, 2015 in Pittsburgh, PA.

    2. November 16-17, 2015, in Denver, Colorado.

    3. November 18-19, 2015 in Washington, DC.

    4. November 19-20, 2015 in Atlanta, Georgia.

    The first hearing day in all locations will begin at 9:00 a.m. (local time) and will conclude at 8:00 p.m. (local time). The second hearing day in all locations will begin at 9:00 a.m. (local time) and conclude at 5:00 p.m. (local time).

    ADDRESSES:

    The hearings will be held in:

    1. Pittsburgh, Pennsylvania, on November 12-13, at the William S. Moorhead Federal Building, 1000 Liberty Avenue, Room 1310, Pittsburgh, Pennsylvania 15222;

    2. Denver, Colorado, on November 16-17, 2015, at the EPA Region 8 office, 1595 Wynkoop Street, Denver, Colorado 80202;

    3. Washington, DC, on November 18-19, 2015, at the EPA William Jefferson Clinton East Building, 1201 Constitution Avenue NW., Washington, DC 20004; and

    4. Atlanta, Georgia, on November 19-20, 2015, at the Sam Nunn Atlanta Federal Center Main Tower Bridge Conference Center, 61 Forsyth Street SW., Atlanta, Georgia 30303.

    The hearings on the first day in all locations will begin at 9:00 a.m. (local time) and will conclude at 8:00 p.m. (local time). The hearings on the second day in all locations will begin at 9:00 a.m. (local time) and will conclude at 5:00 p.m. (local time). There will be a lunch break from 12:00 p.m. to 1:00 p.m. and a dinner break from 5:00 p.m. to 6:00 p.m. (on the first day of hearings only).

    FOR FURTHER INFORMATION CONTACT:

    To register to speak at a hearing, please use the online registration form available at http://www.epa.gov/cleanpowerplan or contact Ms. Virginia Hunt at (919) 541-0832 or at [email protected] The last day to pre-register to speak at the Pittsburgh, Pennsylvania, hearing will be Tuesday, November 10, 2015, and the last day to pre-register to speak at the Denver, Colorado, Washington, DC, and Atlanta, Georgia, hearings will be Thursday, November 12, 2015. Additionally, requests to speak will be taken the day of each hearing at the hearing registration desk, although preferences on speaking times may not be able to be fulfilled. Please note that registration requests received before each hearing will be confirmed by the EPA via email. We cannot guarantee that we can accommodate all timing requests and will provide requestors with the next available speaking time, in the event that their requested time is taken. Please note that the time outlined in the confirmation email received will be the scheduled speaking time. Again, depending on the flow of the day, times may fluctuate. If you require the service of a translator or special accommodations such as audio description, we ask that you pre-register for the hearings by Friday, November 6, 2015, as we may not be able to arrange such accommodations without advance notice. Please note that any updates made to any aspect of the hearings will be posted online at http://www.epa.gov/cleanpowerplan. While the EPA expects the hearings to go forward as set forth above, we ask that you monitor our Web site or contact Ms. Virginia Hunt at (919) 541-0832 or at [email protected] to determine if there are any updates to the information on the hearings. The EPA does not intend to publish a notice in the Federal Register announcing any such updates.

    SUPPLEMENTARY INFORMATION:

    The hearings will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. The EPA will make every effort to accommodate all speakers who wish to register to speak at the hearing venue on the day of the hearing. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Verbatim transcripts of the hearing and written statements will be included in the docket for the rulemaking. The EPA plans for the hearings to run on schedule; however, due to on-site schedule fluctuations, actual speaking times may shift slightly.

    Because these hearings are being held at United States government facilities, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. If your driver's license is issued by Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New York, Oklahoma, or the state of Washington, you must present an additional form of identification to enter the federal building. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses, and military identification cards. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons.

    Attendees will be asked to go through metal detectors. To help facilitate this process, please be advised that you will be asked to remove all items from all pockets and place them in provided bins for screening; remove laptops, phones, or other electronic devices from their carrying case and place in provided bins for screening; avoid shoes with metal shanks, toe guards, or supports as a part of their construction; remove any metal belts, metal belt buckles, large jewelry, watches, and follow the instructions of the guard if identified for secondary screening. Additionally, no weapons (e.g., pocket knives) or drugs or drug paraphernalia (e.g., marijuana) will be allowed in the building. We recommend that you arrive 20 minutes in advance of your speaking time to allow time to go through security and to check in with the registration desk.

    How can I get copies of this document and other related information?

    For more information on this rulemaking, please visit http://www.epa.gov/cleanpowerplan. For questions regarding this rulemaking, please contact: Ms. Toni Jones, Fuels and Incineration Group, Sector Policies and Programs Division (E143-05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0316; fax number: (919) 541-3470; email address: [email protected]

    Dated: October 22, 2015. Mary E. Henigin, Acting Director, Office of Air Quality Planning and Standards.
    [FR Doc. 2015-27367 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2015-0174; FRL-9936-29-OW] Extension of Public Comment Period for the Revision of Certain Federal Water Quality Criteria Applicable to Washington AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; extension of comment period.

    SUMMARY:

    The Environmental Protection Agency (EPA) is extending the comment period for the proposed rule, “Revision of Certain Federal Water Quality Criteria Applicable to Washington.” In response to stakeholder requests, EPA is extending the comment period for an additional 45 days, from November 13, 2015, to December 28, 2015. EPA will offer virtual public hearings on the proposed rule via the Internet in December 2015.

    DATES:

    The comment period for the proposed rule published September 14, 2015 (80 FR 55063) is extended. Comments must be received on or before December 28, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-0174, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Erica Fleisig, Office of Water, Standards and Health Protection Division (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566-1057; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    On September 14, 2015, EPA published the proposed rule, “Revision of Certain Federal Water Quality Criteria Applicable to Washington” in the Federal Register (80 FR 55063). EPA proposes to revise the current federal Clean Water Act human health criteria applicable to waters under the state of Washington's jurisdiction to ensure that the criteria are set at levels that will adequately protect Washington residents, including tribes with treaty-protected rights, from exposure to toxic pollutants.

    The original deadline to submit comments on the proposed rule was November 13, 2015. This action extends the comment period for 45 days. Written comments must now be received by December 28, 2015.

    Additionally, EPA will offer virtual public hearings on the proposed rule via the Internet in December 2015. For details on these public hearings, such as the date and time as well as registration information, please visit http://www2.epa.gov/wqs-tech/water-quality-standards-regulations-washington.

    Dated: October 20, 2015. Kenneth J. Kopocis, Deputy Assistant Administrator, Office of Water.
    [FR Doc. 2015-27474 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 88 [NIOSH Docket 094] World Trade Center Health Program; Petition 009—Autoimmune Diseases; Finding of Insufficient Evidence AGENCY:

    Centers for Disease Control and Prevention, HHS.

    ACTION:

    Denial of petition for addition of a health condition.

    SUMMARY:

    On September 14, 2015, the Administrator of the World Trade Center (WTC) Health Program received a petition (Petition 009) to add the autoimmune disease multiple sclerosis to the List of WTC-Related Health Conditions (List). Upon reviewing the information provided by the petitioner, the Administrator has determined that Petition 009 is not substantially different from Petitions 007 and 008, which also requested the addition of autoimmune diseases. The Administrator recently published responses to both Petition 007 and Petition 008 in the Federal Register and has determined that Petition 009 does not provide additional evidence of a causal relationship between 9/11 exposures and autoimmune diseases. Accordingly, the Administrator finds that insufficient evidence exists to request a recommendation of the WTC Health Program Scientific/Technical Advisory Committee (STAC), to publish a proposed rule, or to publish a determination not to publish a proposed rule.

    DATES:

    The Administrator of the WTC Health Program is denying this petition for the addition of a health condition as of October 28, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Rachel Weiss, Program Analyst, 1090 Tusculum Avenue, MS: C-46, Cincinnati, OH 45226; telephone (855) 818-1629 (this is a toll-free number); email [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents A. WTC Health Program Statutory Authority B. Petition 009 C. Administrator's Determination on Petition 009 A. WTC Health Program Statutory Authority

    Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347), amended the Public Health Service Act (PHS Act) to add Title XXXIII 1 establishing the WTC Health Program within the Department of Health and Human Services (HHS). The WTC Health Program provides medical monitoring and treatment benefits to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania (responders), and to eligible persons who were present in the dust or dust cloud on September 11, 2001 or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area (survivors).

    1 Title XXXIII of the PHS Act is codified at 42 U.S.C. 300mm to 300mm-61. Those portions of the Zadroga Act found in Titles II and III of Public Law 111-347 do not pertain to the WTC Health Program and are codified elsewhere.

    All references to the Administrator of the WTC Health Program (Administrator) in this notice mean the Director of the National Institute for Occupational Safety and Health (NIOSH) or his or her designee.

    Pursuant to section 3312(a)(6)(B) of the PHS Act, interested parties may petition the Administrator to add a health condition to the List in 42 CFR 88.1. Within 60 calendar days after receipt of a petition to add a condition to the List, the Administrator must take one of the following four actions described in section 3312(a)(6)(B) and 42 CFR 88.17: (i) Request a recommendation of the STAC; (ii) publish a proposed rule in the Federal Register to add such health condition; (iii) publish in the Federal Register the Administrator's determination not to publish such a proposed rule and the basis for such determination; or (iv) publish in the Federal Register a determination that insufficient evidence exists to take action under (i) through (iii) above. However, in accordance with 42 CFR 88.17(a)(4), the Administrator is required to consider a new petition for a previously-evaluated health condition determined not to qualify for addition to the List only if the new petition presents a new medical basis—evidence not previously reviewed by the Administrator—for the association between 9/11 exposures and the condition to be added.

    B. Petition 009

    On September 14, 2015, the Administrator received a petition to add the autoimmune disease multiple sclerosis to the List (Petition 009).2 This is the third petition to the Administrator requesting the addition of autoimmune diseases to the List; the first autoimmune disease petition, Petition 007, was denied due to insufficient evidence as described in a Federal Register notice published on June 8, 2015 (80 FR 32333); the second, Petition 008, was also denied due to insufficient evidence as described in a separate Federal Register notice published on July 10, 2015 (80 FR 39720). This petition, Petition 009, presented as evidence a newspaper article referencing a study recently published in the Journal of Arthritis and Rheumatology by Webber et al. [2015],3 as well as the journal article itself, which was designed to test the hypothesis that acute and chronic 9/11 work-related exposures were associated with the risk of certain new-onset systemic autoimmune diseases.

    2 See Petition 009. WTC Health Program: Petitions Received. http://www.cdc.gov/wtc/received.html.

    3 Webber MP, Moir W, Zeig-Owens R, Glaser MS, Jaber N, Hall C, Berman J, Qayyum B, Loupasakis K, Kelly K, and Prezant DJ [20015]. Nested case-control study of selected systemic autoimmune diseases in World Trade Center rescue/recovery workers. Journal of Arthritis & Rheumatology 67(5):1369-1376.

    Although Petition 009 specifically requested the addition of multiple sclerosis, an autoimmune condition, the Administrator determined that the scope of the petition properly includes only the autoimmune diseases identified in Webber et al., cited as evidence in Petitions 007, 008, and 009.4 Multiple sclerosis is not among the autoimmune diseases studied by Webber et al. No other evidence was provided in Petition 009 to support the addition of multiple sclerosis to the List; therefore, multiple sclerosis is not addressed in this action.

    4 This determination is consistent with the Administrator's reasoning in the Petition 007 finding of insufficient evidence. 80 FR 32333, June 8, 2015.

    C. Administrator's Determination on Petition 009

    The Administrator has established a methodology for evaluating whether to add non-cancer health conditions to the List of WTC-Related Health Conditions, published online in the Policies and Procedures section of the WTC Health Program Web site.5 However, the Administrator has determined that the methodology is not triggered in this case because Petition 009 requested the addition of the autoimmune diseases identified in Webber et al. previously reviewed by the Program, and presented no new evidence of a causal association between 9/11 exposures and autoimmune diseases. In response to Petition 007, which also requested the addition of autoimmune diseases, the Administrator reviewed the findings presented in the Webber study and determined that insufficient evidence exists to take any of the following actions: Propose the addition of autoimmune diseases to the List (pursuant to PHS Act, section 3312(a)(6)(B)(ii) and 42 CFR 88.17(a)(2)(ii)); publish a determination not to publish a proposed rule in the Federal Register (pursuant to PHS Act, section 3312(a)(6)(B)(iii) and 42 CFR 88.17(a)(2)(iii)); or request a recommendation from the STAC (pursuant to PHS Act, section 3312(a)(6)(B)(i) and 42 CFR 88.17(a)(2)(i)). The Webber study was also presented as evidence to support Petition 008 regarding autoimmune disorders, specifically encephalitis of the brain. Because the Administrator recently evaluated the Webber study in responding to Petitions 007 and 008, there is no need to reevaluate the same evidence again in response to the request to add autoimmune diseases in Petition 009, which also presented the Webber study as evidence of a causal association between 9/11 exposures and autoimmune diseases.

    5 “Policy and Procedures for Adding Non-Cancer Conditions to the List of WTC-Related Health Conditions,” John Howard MD, Administrator of the WTC Health Program, October 21, 2014. http://www.cdc.gov/wtc/pdfs/WTCHP_PP_Adding_NonCancers_21_Oct_2014.pdf.

    Accordingly, with regard to Petition 009, the Administrator has determined that insufficient evidence exists to take further action, including either proposing the addition of autoimmune diseases to the List (pursuant to PHS Act, section 3312(a)(6)(B)(ii) and 42 CFR 88.17(a)(2)(ii)) or publishing a determination not to publish a proposed rule in the Federal Register (pursuant to PHS Act, section 3312(a)(6)(B)(iii) and 42 CFR 88.17(a)(2)(iii)). The Administrator has also determined that requesting a recommendation from the STAC (pursuant to PHS Act, section 3312(a)(6)(B)(i) and 42 CFR 88.17(a)(2)(i)) is unwarranted.

    For the reasons discussed above, the request made in Petition 009 to add the autoimmune disease multiple sclerosis to the List of WTC-Related Health Conditions is denied.

    The Administrator is aware that another study of autoimmune diseases among WTC Health Program members is being conducted by the WTC Health Registry; however, results from this study are not yet available in the scientific literature. The Administrator will monitor the scientific literature for publication of the results of this study and any other studies that address autoimmune diseases among 9/11-exposed populations.

    Dated: October 22, 2015. John Howard, Administrator, World Trade Center Health Program and Director, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, Department of Health and Human Services.
    [FR Doc. 2015-27435 Filed 10-27-15; 8:45 am] BILLING CODE 4163-18-P
    80 208 Wednesday, October 28, 2015 Notices DEPARTMENT OF AGRICULTURE OFFICE OF TRIBAL RELATIONS Council for Native American Farming and Ranching Meeting AGENCY:

    Office of Tribal Relations, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice announces a forthcoming meeting of The Council for Native American Farming and Ranching (CNAFR), a public advisory committee of the Office of Tribal Relations (OTR). Notice of the meetings are provided in accordance with section 10(a)(2) of the Federal Advisory Committee Act, as amended, (5 U.S.C. Appendix 2). This will be the first meeting held during fiscal year 2016 and will consist of, but not be limited to: Hearing public comments, update of USDA programs and activities, and discussion of committee priorities. This meeting will be open to the public.

    DATES:

    The meeting will be held on December 8, 2015, 10:00 a.m. to 6:00 p.m., and December 9, 2015, 8:30 a.m. to 6:00 p.m. The meeting will be open to the public on both days. Note that a period for public comment will be held on December 8, 2015, from 2:00 p.m. to 4:00 p.m.

    ADDRESSES:

    The meeting will be held at the Flamingo Hotel, 3555 S. Las Vegas Boulevard, Las Vegas, Nevada 89109, in the Laughlin II Room.

    WRITTEN COMMENTS: Written comments may be submitted to: The CNAFR Contact Person, Dana Richey, Designated Federal Officer, Senior Policy Advisor, Office of the Administrator, USDA/Farm Service Agency, 1400 Independence Ave. SW., Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Questions should be directed to Dana Richey, Senior Policy Advisor, Office of the Administrator, USDA/Farm Service Agency, 1400 Independence Ave. SW., Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2), USDA established an advisory council for Native American farmers and ranchers. The CNAFR is a discretionary advisory committee established under the authority of the Secretary of Agriculture, in furtherance of the Keepseagle v. Vilsack settlement agreement that was granted final approval by the District Court for the District of Columbia on April 28, 2011.

    The CNAFR will operate under the provisions of the FACA and report to the Secretary of Agriculture. The purpose of the CNAFR is (1) to advise the Secretary of Agriculture on issues related to the participation of Native American farmers and ranchers in USDA farm loan programs; (2) to transmit recommendations concerning any changes to Farm Service Agency regulations or internal guidance or other measures that would eliminate barriers to program participation for Native American farmers and ranchers; (3) to examine methods of maximizing the number of new farming and ranching opportunities created by USDA farm loan programs through enhanced extension and financial literacy services; (4) to examine methods of encouraging intergovernmental cooperation to mitigate the effects of land tenure and probate issues on the delivery of USDA farm loan programs; (5) to evaluate other methods of creating new farming or ranching opportunities for Native American producers; and (6) to address other related issues as deemed appropriate.

    The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing solutions to the challenges of the aforementioned purposes. Equal opportunity practices were considered in all appointments to the CNAFR in accordance with USDA policies. The Secretary selected the members in August 2014.

    Interested persons may present views, orally or in writing, on issues relating to agenda topics before the CNAFR. Written submissions may be submitted to the contact person on or before November 30, 2015. Oral presentations from the public will be heard from 2:00 p.m. to 4:00 p.m. on December 8, 2015. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the issue they wish to present and the names and addresses of proposed participants by November 30, 2015. All oral presentations will be given three (3) to five (5) minutes depending on the number of participants.

    The OTR will also make the agenda available to the public via the OTR Web site http://www.usda.gov/tribalrelations no later than 10 business days before the meeting and at the meeting. The minutes from the meeting will be posted on the OTR Web site. OTR welcomes the attendance of the public at the CNAFR meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please notify the Contact Person, at least 10 business days in advance of the meeting.

    Leslie Wheelock, Director, Office of Tribal Relations.
    [FR Doc. 2015-27450 Filed 10-27-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE [Docket No.: 150817729-5970-02] Privacy Act of 1974, Altered System of Records AGENCY:

    National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

    ACTION:

    Notice of proposed amendment to Privacy Act System of Records: COMMERCE/NOAA-14, Dr. Nancy Foster Scholarship Program.

    SUMMARY:

    The Department of Commerce publishes this notice to announce the effective date of a Privacy Act System of Records notice entitled Notice of Proposed Amendment to COMMERCE/NOAA-14, Dr. Nancy Foster Scholarship Program.

    DATES:

    The system of records becomes effective on October 28, 2015.

    ADDRESSES:

    For a copy of the system of records please mail requests to: Sarah Brabson, NOAA Office of the Chief Information Officer, Room 9856, 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Program Administrator, Dr. Nancy Foster Scholarship Program, National Ocean Service, Office of the Assistant Administrator, 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910-3281.

    Deputy Director of NOAA Education, Educational Partnership Program and Ernest F. Hollings Undergraduate Scholarship Program, Office of Education, 1315 East-West Highway, 10th Floor, Silver Spring, MD 20910-3281.

    Administrative Assistant, Mendy Willis, National Marine Fisheries Service Recruitment, Training, Research Program at the University of Florida, P.O. Box 110240, Gainesville, FL 32611.

    SUPPLEMENTARY INFORMATION:

    On September 17, 2015 (80 FR 55829), the Department of Commerce published a notice in the Federal Register, entitled “Notice of Proposed Amendment to Privacy Act System of Records: COMMERCE/NOAA-14, Dr. Nancy Foster Scholarship Program,” requesting comments on proposed amendments to the system of records. No comments were received in response to the request for comments. By this notice, the Department of Commerce is adopting the proposed changes to the system as final without changes effective October 28, 2015.

    Dated: October 22, 2015. Michael J. Toland, Department of Commerce, Freedom of Information and Privacy Act Officer.
    [FR Doc. 2015-27426 Filed 10-27-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE International Trade Administration Application(s) for Duty-Free Entry of Scientific Instruments

    Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.

    Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before November 17, 2015. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.

    Docket Number: 15-029. Applicant: University of California, Irvine, 816 F Engineering Tower, Irvine, CA 92697-2575. Instrument: Electron Microscope. Manufacturer: JEOL Ltd., Japan. Intended Use: The instrument will be used to determine nanoparticle size, crystal structure, interface and defect structure, surface structure, composition, electronic state, bad-gap, cell structure, magnetic domain structure, 3D-structure and phase transformation of various materials such as metals, ceramics, semiconductors, superconductors, polymers and cells. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: June 12, 2015.

    Docket Number: 15-031. Applicant: University of California, Irvine, 816 F Engineering Tower, Irvine, CA 92697-2575. Instrument: Electron Microscope. Manufacturer: JEOL Ltd., Japan. Intended Use: The instrument will be used to determine nanoparticle size, crystal structure, interface and defect structure, surface structure, composition, electronic state, bad-gap, cell structure, magnetic domain structure, 3D-structure and phase transformation of various materials such as metals, ceramics, semiconductors, superconductors, polymers and cells. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: June 12, 2015.

    Docket Number: 15-035. Applicant: Drexel University, 3141 Chestnut Street, Philadelphia, PA 19104. Instrument: Electron Microscope. Manufacturer: JEOL Ltd., Japan. Intended Use: The instrument will be used to understand the structure of metal alloys, polymers, ceramics, semiconductors and biological structures and relate this to the material performance by obtaining structural and morphological information about the materials using electron diffraction, bright field and dark field imaging. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 20, 2015.

    Docket Number: 15-036. Applicant: The Trustees of Princeton University, 701 Carnegie Center, Princeton, NJ 08540. Instrument: Electron Microscope. Manufacturer: FEI Czech Republic s.r.o., Czech Republic. Intended Use: The instrument will be used for a wide range of applications including microstructural and chemical analysis of the first hydration products of cement, using samples prepared by supercritical drying, to elucidate the process of strength development and identify the effects of additives on the kinetics and microstructure, and the structural analysis of non-conducting nanowires used as gas sensors. Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 20, 2015.

    Docket Number: 15-037. Applicant: The Trustees of Princeton University, 701 Carnegie Center, Princeton, NJ 08540. Instrument: Electron Microscope. Manufacturer: FEI Electron Optics BV, the Netherlands. Intended Use: The instrument will be used for research such as the interfacial atomic structure of ferromagnetic insulator-topological insulator heterostructures, using FIB prepared thin cross-sections, to elucidate the temperature effect on near-stoichiometric materials which might lead to the development of spintronic devices based on the large anomalous Hall Effect, and the development and fabrication of uniformly dispersed nanoparticle-doped chalcogenide glass. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 30, 2015.

    Docket Number: 15-038. Applicant: South Dakota State University, 1400 North Campus Drive, Agricultural and Biosystems Engineering Box 2120, South Dakota State University, Brookings, South Dakota 57007. Instrument: Electron Microscope. Manufacturer: JEOL Ltd., Japan. Intended Use: The instrument will be used to develop techniques for stronger, lighter and cheaper next generation wind turbine blades by characterizing internal and interface structure of nano-fiber enhanced composites, as well as other research. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 3, 2015.

    Docket Number: 15-039. Applicant: University of Texas Southwestern Medical Center, 5323 Harry Hines Blvd., Dallas, TX 75390. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to learn how imaged proteins and molecules perform their cellular functions, using cryo-transmission electron microscopy. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 10, 2015.

    Docket Number: 15-040. Applicant: UT Battelle, Oak Ridge National Laboratory, One Bethel Valley Road, P.O. Box 2008, Oak Ridge, TN 37831-6138. Instrument: Electron Microscope. Manufacturer: FEI Company, Czech Republic. Intended Use: The instrument will be used to study metals and ceramics for nuclear power applications, using transmission electron microscopy to study the evolution of defects in the crystalline structures of the materials before and after irradiation. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 14, 2015.

    Docket Number: 15-041. Applicant: University of Minnesota, 116 Tate Lab of Physics, Minneapolis, MN 55455-0149. Instrument: IVVI Measuring System with Modules. Manufacturer: Delft University of Technology, the Netherlands. Intended Use: The instrument will be used to uncover novel quantum properties of certain semiconductors or superconductors, such as InAs, GaSb or devices combining these with superconductors such As Al and Nb, using high-sensitivity electronic current and voltage measurements. Unique properties of this instrument include modular integration of pA sensitivity ammeter, required to measure very small electrical currents down to several pA, low-noise transimpedance amplifier, required to transform the electrical currents into voltage signals of a few mV that can be measured with conventional laboratory voltmeters, and low-noise digital-to-analogue converter and signal switchboxes. The entire setup is battery-operated and is programmable via an optically-decoupled input to minimize electrical noise interference from electrical power lines or other instruments. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 18, 2015.

    Docket Number: 15-042. Applicant: Purdue University, 610 Purdue Mall, West Lafayette, IN 47907. Instrument: SuperK EXTREME EXR-20 20 MHz with SuperK VARIA High 50dB with Power Lock. Manufacturer: NKT Photonics, Denmark. Intended Use: The instrument will be used to image tissue or tissue like materials with high optical scatter using Optical Diffusion Tomography (ODT), providing useful information for the study of biological and chemical processes. The instrument has a wide turning range, which is important for exciting different fluorophores of interest, providing specificity to chemical processes, a short pulse width which is important for performing time-gated measurements, high laser power which is important for obtaining a high SNR from laser light traveling through centimeters of tissue or related scattering medium, and a 20MHz repetition rate which is important for time-gated measurements given the temporal response time of tissue. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: September 4, 2015.

    Docket Number: 15-043. Applicant: New York Structural Biology Center, 89 Convent Ave., New York, NY 10027. Instrument: Electron Microscope. Manufacturer: FEI Co., the Netherlands. Intended Use: The instrument will be used to determine the three-dimensional structure of biological assemblies to determine the manner in which they function and the mechanisms through which they interact with other cellular components. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 27, 2015.

    Docket Number: 15-045. Applicant: University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, MA 01655. Instrument: Vitrobot. Manufacturer: FEI Electron Optics, B.V., the Netherlands. Intended Use: The instrument will be used to understand the three-dimensional structure of purified proteins and complexes at the atomic level, and how this is related to their function, by freezing them, then examining them in the frozen state in an electron microscope. The instrument can precisely control the humidity at any level, and can also control the temperature of the chamber, which is essential to freeze the proteins and complexes under exactly defined conditions, which is a requirement for all of the studies. The specimen remains in the humidity-controlled environment until the instant of freezing, which is essential to prevent any evaporation of water from the specimen before freezing. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: September 15, 2015.

    Docket Number: 15-046. Applicant: National Institute for Occupational Safety & Health, 1095 Willowdale Rd., Room B104, Morgantown, WV 26505. Instrument: Electron Microscope. Manufacturer: JEOL Ltd., Japan. Intended Use: The instrument will be used to determine the effects of exposing animal lung tissues and cells to particles such as silica and asbestos, nanoparticles such as carbon nanotubes, Titanium Dioxide, graphene and cellulose, in order to make recommendations to industry as to how to protect workers from lung disease. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: September 28, 2015.

    Dated: October 20, 2015. Gregory W. Campbell, Director of Subsidies Enforcement, Enforcement and Compliance.
    [FR Doc. 2015-27459 Filed 10-27-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-475-818] Certain Pasta From Italy: Notice of Final Results of Antidumping Duty Changed Circumstances Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On June 23, 2015, the Department of Commerce (Department) published the preliminary results of the changed circumstances review of the antidumping duty order on certain pasta from Italy and preliminarily determined that La Molisana S.p.A. (La Molisana) was not the successor-in-interest to La Molisana Industrie Alimentari, S.p.A. (LMI), a respondent in the investigation and several administrative reviews.1 We received comments from interested parties. Based on our analysis, for the final results, the Department continues to find that La Molisana is not the successor-in-interest to LMI.

    1See Certain Pasta from Italy: Notice of Preliminary Results of Antidumping Duty Changed Circumstances Review, 80 FR 35936 (June 23, 2015) (Preliminary Results) and accompanying Preliminary Decision Memorandum.

    DATES:

    Effective Date: October 28, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Moore, Office III, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3692.

    Background

    On July 24, 1996, the Department published in the Federal Register the antidumping duty order on pasta from Italy.2 The most recently completed administrative review for LMI was for the July 1, 1998 to June 30, 1999 period.3 Pursuant to Section 129 of the Uruguay Round Agreements Act, the Department recalculated the cash deposit rate for LMI and assigned it a de minimis margin.4

    2See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Certain Pasta From Italy, 61 FR 38547 (July 24, 1996); see also Notice of Second Amendment to the Final Determination and Antidumping Duty Order: Certain Pasta From Italy; 61 FR 42231 (August 14, 1996).

    3See Certain Pasta From Italy: Final Results of Antidumping Duty Administrative Review, 65 FR 77852 (December 13, 2000).

    4See Notice of Implementation of Determination Under Section 129 of the Uruguay Round Agreements Act: Stainless Steel Plate in Coils From Belgium, Steel Concrete Reinforcing Bars From Latvia, Purified Carboxymethylcellulose From Finland, Certain Pasta From Italy, Purified Carboxymethylcellulose From the Netherlands, Stainless Steel Wire Rod From Spain, Granular Polytetrafluoroethylene Resin From Italy, Stainless Steel Sheet and Strip in Coils From Japan, 77 FR 36257 (June 18, 2012) (Notice of Section 129 Implementation).

    On June 23, 2014, La Molisana requested a changed circumstances review. On August 12, 2014, the Department initiated this review.5 On June 23, 2015, the Department published in the Federal Register a preliminary finding that La Molisana was not the successor-in-interest to LMI.6

    5See Certain Pasta From Italy: Initiation of Changed Circumstances Review, 79 FR 47090 (August 12, 2014).

    6See Preliminary Results.

    On July 2, 2015, La Molisana submitted a case brief.7 On July 10, 2015, Petitioners submitted a rebuttal brief.8 A hearing was held on July 15, 2015. The Department extended the deadline for the final results until October 21, 2015.9

    7See La Molisana's July 2, 2015 Case Brief.

    8See Petitioners' July 10, 2015 Rebuttal Brief.

    9See October 13, 2015 Letter to La Molisana.

    Scope of the Order

    Imports covered by the order are shipments of certain non-egg dry pasta. The merchandise subject to review is currently classifiable under items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.10

    10 For a full description of the scope of the order, see the Preliminary Decision Memorandum at 2.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to this changed circumstances review are addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues which parties have raised, and to which we have responded in the Issues and Decision Memorandum, is attached to this notice as an Appendix. 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 http://access.trade.gov, and it 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 on the internet at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    Final Results of Changed Circumstances Review

    For the Preliminary Results, the Department found that La Molisana was not the successor-in-interest to LMI based on the totality of the record evidence.11 Based on the totality of the circumstances, we preliminarily determined that La Molisana is materially dissimilar to LMI in terms of management, production facilities, and supplier relationships.12 Based on our analysis of the comments received, the Department continues to find that La Molisana is not the successor-in-interest to LMI pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.216.13

    11See Preliminary Results and accompanying Preliminary Decision Memorandum.

    12Id.

    13See Issues and Decision Memorandum at Comments 1-6.

    Instructions to U.S. Customs and Border Protection

    As a result of this determination, the Department will instruct U.S. Customs and Border Protection to collect estimated antidumping duties for all shipments of subject merchandise exported by La Molisana and entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the Federal Register at the 15.45 percent the all-others rate established in the antidumping duty investigation, as modified by the section 129 determination.14 This cash deposit requirement shall remain in effect until further notice.

    14See Notice of Implementation of Section 129.

    Notification

    This notice serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the 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 sanctionable violation.

    This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 and 351.221.

    Dated: October 21, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. APPENDIX I. Summary II. Background III. Scope of the Order IV. Discussion of Methodology V. Discussion of Interested Party Comments Comment 1: Whether the Department's Preliminary Results Are in Accordance With Law and Supported by Record Evidence Comment 2: Whether the Department's Analysis of the Management Factor Is Flawed Comment 3: Whether the Department's Analysis of Production Facilities Is Flawed Comment 4: Whether the Department's Analysis of Supplier Relationships Is Flawed Comment 5: Whether the Department's Analysis of Customer Base Is Flawed Comment 6: Whether the Department Failed To Reject Petitioners' Improperly Filed Submission Recommendation
    [FR Doc. 2015-27458 Filed 10-27-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE281 Marine Fisheries Advisory Committee AGENCY:

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

    ACTION:

    Notice of open public meetings.

    SUMMARY:

    This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee (MAFAC). The members will discuss and provide advice on issues outlined in the agenda below.

    DATES:

    The meeting is scheduled for November 9, 2015, 4-5:30 p.m., Eastern Standard Time.

    ADDRESSES:

    Conference call. Public access is available at 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Any member of the public wishing to attend may contact Heidi Lovett, (301) 427-8004; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The MAFAC was established by the Secretary of Commerce (Secretary), and, since 1971, advises the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. The charter and other information are located online at http://www.nmfs.noaa.gov/ocs/mafac/.

    Matters To Be Considered

    The Committee is convening to discuss and finalize recommendations on the Draft Habitat Enterprise Strategic Plan for submission to the NOAA Fisheries Assistant Administrator. Other administrative matters may be considered. This agenda is subject to change.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Heidi Lovett, 301-427-8004 by November 2, 2015.

    Dated: October 22, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-27430 Filed 10-27-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration National Estuarine Research Reserve System AGENCY:

    Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

    ACTION:

    Notice of approval of the Apalachicola, Florida National Estuarine Research Reserve Management Plan revision.

    SUMMARY:

    Notice is hereby given that the Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce approves the Apalachicola, Florida National Estuarine Research Reserve Management Plan revision. The revised management plan outlines the administrative structure; the research & monitoring, education, training, and stewardship goals of the reserve; and the plans for future land acquisition and facility development to support reserve operations. The Apalachicola Reserve revised plan will replace the plan approved in 2003.

    The Apalachicola Reserve management plan emphasizes a fully integrated approach that links ongoing research, education, training and stewardship programs together. This integrated approach, in coordination with strategic partnerships addresses high priority reserve issues including public use and access, changing land use patterns, the loss of cultural resources, impacts of global and regional processes on ecosystems and communities, engagement with local communities, and changes in reserve habitats. Since the last management plan, the reserve has expanded its monitoring and geographic information system programs; increased staff resources; completed a site profile, established a Coastal Training Program; expanded educational programs; and constructed a new nature center and headquarters complex in the town of Eastpoint that includes laboratories, offices, classrooms, interpretative areas, and are planning interpretive trails.

    There is a boundary change associated with this management plan revision that will decrease their total acreage from 246,766 acres to 234,715. The change is attributable to accuracy adjustments based on improved geographic information for the site. The revised management plan will serve as the guiding document for the 234,715 acre Apalachicola Reserve for the next five years. View the Apalachicola, Florida Reserve Management Plan revision at (http://www.dep.state.fl.us/coastal/sites/apalachicola/publications.htm).

    FOR FURTHER INFORMATION CONTACT:

    Matt Chasse at (301) 563-1198 or Erica Seiden at (301) 563-1172 of NOAA's National Ocean Service, Stewardship Division, Office for Coastal Management, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910.

    Dated: October 20, 2015. John King, Deputy Director, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration.
    [FR Doc. 2015-27425 Filed 10-27-15; 8:45 am] BILLING CODE 3510-08-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2015-ICCD-0101] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; 2016-2017 Federal Student Aid Application AGENCY:

    Federal Student Aid (FSA), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before November 27, 2015.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2015-ICCD-0101. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E103, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Douglas A. Pineda Robles, 202-377-4578.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: 2016-2017 Federal Student Aid Application.

    OMB Control Number: 1845-0001.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals.

    Total Estimated Number of Annual Responses: 40,135,807.

    Total Estimated Number of Annual Burden Hours: 20,560,481.

    Abstract: Section 483 of the Higher Education Act of 1965, as amended (HEA), mandates that the Secretary of Education “. . . shall produce, distribute, and process free of charge common financial reporting forms as described in this subsection to be used for application and reapplication to determine the need and eligibility of a student for financial assistance . . .”.

    The determination of need and eligibility are for the following title IV, HEA, federal student financial assistance programs: the Federal Pell Grant Program; the Campus-Based programs (Federal Supplemental Educational Opportunity Grant (FSEOG), Federal Work-Study (FWS), and the Federal Perkins Loan Program); the William D. Ford Federal Direct Loan Program; the Teacher Education Assistance for College and Higher Education (TEACH) Grant; and the Iraq and Afghanistan Service Grant.

    Federal Student Aid, an office of the U.S. Department of Education (hereafter “the Department”), subsequently developed an application process to collect and process the data necessary to determine a student's eligibility to receive title IV, HEA program assistance. The application process involves an applicant's submission of the Free Application for Federal Student Aid (FAFSA®). After submission of the FAFSA, an applicant receives a Student Aid Report (SAR), which is a summary of the data they submitted on the FAFSA. The applicant reviews the SAR, and, if necessary, will make corrections or updates to their submitted FAFSA data. Institutions of higher education listed by the applicant on the FAFSA also receive a summary of processed data submitted on the FAFSA which is called the Institutional Student Information Record (ISIR).

    The Department seeks OMB approval of all application components as a single “collection of information”. The aggregate burden will be accounted for under OMB Control Number 1845-0001. The specific application components, descriptions and submission methods for each are listed in Table 1.

    Table 1—Federal Student Aid Application Components Component Description Submission method Initial Submission of FAFSA FAFSA on the Web (FOTW) Online FAFSA that offers applicants a customized experience Submitted by the applicant via www.fafsa.gov. FOTW—Renewal Online FAFSA for applicants who have previously completed the FAFSA FOTW—EZ Online FAFSA for applicants who qualify for the Simplified Needs Test (SNT) or Automatic Zero (Auto Zero) needs analysis formulas FOTW—EZ Renewal Online FAFSA for applicants who have previously completed the FAFSA and who qualify for the SNT or Auto Zero needs analysis formulas FAFSA on the Phone (FOTP) The Federal Student Aid Information Center (FSAIC) representatives assist applicants by filing the FAFSA on their behalf through FOTW Submitted through www.fafsa.gov for applicants who call 1-800-4-FED-AID. FOTP—EZ FSAIC representatives assist applicants who qualify for the SNT or Auto Zero needs analysis formulas by filing the FAFSA on their behalf through FOTW FAA Access Online tool that a financial aid administrator (FAA) utilizes to submit a FAFSA Submitted through www.faaacess.ed.gov by a FAA on behalf of an applicant. FAA Access—Renewal Online tool that a FAA can utilize to submit a Renewal FAFSA FAA Access—EZ Online tool that a FAA can utilize to submit a FAFSA for applicants who qualify for the SNT or Auto Zero needs analysis formulas FAA Access—EZ Renewal Online tool that a FAA can utilize to submit a FAFSA for applicants who have previously completed the FAFSA and who qualify for the SNT or Auto Zero needs analysis formulas Electronic Other This is a submission done by a FAA, on behalf of the applicant, using the Electronic Data Exchange (EDE) The FAA may be using their mainframe computer or software to facilitate the EDE process. PDF FAFSA or Paper FAFSA The paper version of the FAFSA printed by the Department for applicants who are unable to access the Internet or the online version of the FAFSA for applicants who can access the Internet but are unable to complete the form using FOTW Mailed by the applicant. Correcting Submitted FAFSA Information and Reviewing FAFSA Information FOTW—Corrections Any applicant who has a Federal Student Aid ID (FSA ID)—regardless of how they originally applied—may make corrections using FOTW Corrections Submitted by the applicant via www.fafsa.gov. Electronic Other—Corrections With the applicant's permission, corrections can be made by a FAA using the EDE The FAA may be using their mainframe computer or software to facilitate the EDE process. Paper SAR—This is a SAR and an option for corrections The full paper summary that is mailed to paper applicants who did not provide an e-mail address and to applicants whose records were rejected due to critical errors during processing. Applicants can write corrections directly on the paper SAR and mail for processing Mailed by the applicant. FAA Access—Corrections An institution can use FAA Access to correct the FAFSA Submitted through www.faaacess.ed.gov by a FAA on behalf of an applicant. Internal Department Corrections The Department will submit an applicant's record for system-generated corrections There is no burden to the applicants under this correction type as these are system-based corrections. FSAIC Corrections Any applicant, with their Data Release Number (DRN), can change the postsecondary institutions listed on their FAFSA or change their address by calling FSAIC These changes are made directly in the CPS system by a FSAIC representative. SAR Electronic (eSAR) The eSAR is an online version of the SAR that is available on FOTW to all applicants with a PIN. Notifications for the eSAR are sent to students who applied electronically or by paper and provided an e-mail address. These notifications are sent by e-mail and include a secure hyperlink that takes the user to the FOTW site Cannot be submitted for processing.

    This information collection also documents an estimate of the annual public burden as it relates to the application process for federal student aid. The Applicant Burden Model (ABM), measures applicant burden through an assessment of the activities each applicant conducts in conjunction with other applicant characteristics and in terms of burden, the average applicant's experience. Key determinants of the ABM include:

    ☐ The total number of applicants that will potentially apply for federal student aid;

    ☐ How the applicant chooses to complete and submit the FAFSA (e.g., by paper or electronically via FOTW®);

    ☐ How the applicant chooses to submit any corrections and/or updates (e.g., the paper SAR or electronically via FOTW Corrections);

    ☐ The type of SAR document the applicant receives (eSAR, SAR acknowledgment, or paper SAR);

    ☐ The formula applied to determine the applicant's expected family contribution (EFC) (full need analysis formula, Simplified Needs Test or Automatic Zero); and

    ☐ The average amount of time involved in preparing to complete the application.

    The ABM is largely driven by the number of potential applicants for the application cycle. The total application projection for 2016-2017 is based upon two factors—estimating the growth rate of the total enrollment into post-secondary education and applying the growth rate to the FAFSA submissions. The ABM is also based on the application options available to students and parents. The Department accounts for each application component based on web trending tools, survey information, and other Department data sources.

    For 2016-2017, the Department is reporting a net burden decrease of −3,522,674 hours. This decrease is considered to be an adjustment in burden hours from the 2015-2016 FAFSA.

    Dated: October 23, 2015. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2015-27451 Filed 10-27-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2015-ICCD-0108] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; High School Longitudinal Study of 2009 (HSLS:09) Second Follow-up Main Study and 2018 Panel Maintenance AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before November 27, 2015.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2015-ICCD-0108. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E103, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Kashka Kubzdela at (202) 502-7411 or by email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: High School Longitudinal Study of 2009 (HSLS:09) Second Follow-up Main Study and 2018 Panel Maintenance.

    OMB Control Number: 1850-0852.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 32,107.

    Total Estimated Number of Annual Burden Hours: 24,904.

    Abstract: The High School Longitudinal Study of 2009 (HSLS:09) is a nationally representative, longitudinal study of more than 20,000 9th graders in 944 schools in 2009 who are being followed through their secondary and postsecondary years. The study focuses on understanding students' trajectories from the beginning of high school into postsecondary education or the workforce and beyond. What students decide to pursue when, why, and how are crucial questions for HSLS:09, especially, but not solely, in regards to science, technology, engineering, and math (STEM) courses, majors, and careers. To date, HSLS:09 measured math achievement gains in the first 3 years of high school and, like past studies, surveyed students, their parents, school administrators, school counselors, and teachers. After the initial 2009 data collection, the main study students were re-surveyed in 2012 when most were high school 11th-graders, and again in 2013 when most had just graduated from high school. The second follow-up data collection will take place in early 2016, and will consist of a survey, postsecondary transcript collection, financial aid records collection, and file matching to extant data sources. The second follow-up focuses on postsecondary attendance patterns, field of study selection processes with particular emphasis on STEM, the postsecondary academic and social experience, education financing, employment history including instances of unemployment and underemployment, job characteristics including income and benefits, job values, family formation, and civic engagement. The HSLS:09 data elements are designed to support research that speaks to the underlying dynamics and education processes that influence student achievement, growth, and personal development over time. This request is to conduct the HSLS:09 Second Follow-up Main Study interviews in 2016, the transcript and student financial aid records collections in 2017, and panel maintenance activities in 2018.

    Dated: October 23, 2015. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2015-27417 Filed 10-27-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER15-2265-001.

    Applicants: Southwest Power Pool, Inc.

    Description: Compliance filing: Compliance filing Regarding Trading Hubs and Resource Hubs to be effective 9/23/2015.

    Filed Date: 10/22/15.

    Accession Number: 20151022-5195.

    Comments Due: 5 p.m. ET 11/12/15.

    Docket Numbers: ER16-126-000.

    Applicants: Southwest Power Pool, Inc.

    Description: Petition for Waiver of Tariff Provisions and Motion for Expedited Action and Shortened Comment Period of Southwest Power Pool, Inc.

    Filed Date: 10/20/15.

    Accession Number: 20151020-5261.

    Comments Due: 5 p.m. ET 10/30/15.

    Docket Numbers: ER16-136-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Cancellation: Notice of Cancellation of WMPA No. 3253, Queue No. W4-053 to be effective 10/22/2015.

    Filed Date: 10/22/15.

    Accession Number: 20151022-5145.

    Comments Due: 5 p.m. ET 11/12/15.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 22, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27409 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-131-000 ] Heber Geothermal Company LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding Heber Geothermal Company LLC.'s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 10, 2015.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 22, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27410 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP16-6-000] Texas Gas Transmission, LLC; Notice of Request Under Blanket Authorization

    Take notice that on October 13, 2015, Texas Gas Transmission, LLC (Texas Gas), 9 Greenway Plaza, Suite 2800, Houston, Texas 77046 filed a prior notice request pursuant to sections 157.205(b), 157.208 (c) and 157.210 of the Commission's regulations under the Natural Gas Act for authorization to replace its existing 12,000 horsepower (HP) Solar Mars 100 T-14000 turbine unit with a new 13,290 HP Solar Mars 100-T15000S turbine unit as well as the installation and modification of station piping, valves and other appurtenant, auxiliary facilities at Texas Gas' existing Hardinsburg Compressor Station located in Breckinridge County, Kentucky (Hardinsburg Replacement Project). Texas Gas states that the Hardinsburg Replacement Project will not result in a reduction or abandonment of service through the facilities, all as more fully set forth in the application which is on file with the Commission and open to public inspection.

    The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding this Application should be directed to Michael E. McMahon, Sr. Vice President and General Counsel, Texas Gas Transmission, LLC, 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, at phone (713) 479-8059 or facsimile (866) 459-7336, or via email to [email protected]

    Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with he Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a) (1) (iii) and the instructions on the Commission's Web site (www.ferc.gov) under the “e-Filing” link. Persons unable to file electronically should submit original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27400 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. OR16-1-000] Bayou Bridge Pipeline, LLC; Notice of Petition for Declaratory Order

    Take notice that on October 19, 2015, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2015), Bayou Bridge Pipeline, LLC (Petitioner), filed a petition for a declaratory order seeking approval of the specified rate structure, terms of service, and prorationing methodology for the proposed Bayou Bridge pipeline project (the “Bayou Bridge Project”). Petitioner states that the Bayou Bridge Project is intended to provide cost-effective crude oil pipeline transportation from the crude oil terminals, storage, and transportation hub in the vicinity of Nederland, Texas, to refineries and markets in Louisiana, all as more fully explained in the petition.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern time on November 19, 2015.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27403 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 6643-015] Lee R. and A. Leon Thayn; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Type of Application: Amendment of Exemption.

    b. Project No: 6643-015.

    c. Date Filed: October 19, 2015.

    d. Applicant: Lee R. and A. Leon Thayn.

    e. Name of Projects: Thayn Project.

    f. Location: The project is located on the Green River, along the boundary of Grand and Emory Counties, Utah.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.

    h. Applicant Contact: Lee R. Thayn, P.O. Box 447, Green River, UT 84525, (435) 564-3325; or Rick Kaster, 4860 N. 115 East, Buhl, ID 83316, (208) 731-9975.

    i. FERC Contact: B. Peter Yarrington, (202) 502-6129 or [email protected]

    j. Deadline for filing comments, motions to intervene, and protests is 15 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, or comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. Please include the project number (P-6643-015) on any comments, motions to intervene, or protests filed.

    k. Description of Request: The applicant proposes replacement of the existing rock and timber diversion dam with a new structure primarily consisting of sheet pile walls, structural fill material, and a concrete cap. The existing diversion dam, which is over 100 years old, has undergone significant deterioration, most recently during a high-flow event in 2011. The proposed new diversion dam was designed by the Green River Conservation District and the exemptee in consultation with federal and state resource agencies to ensure a continued supply of agricultural water for local irrigators, and to improve public safety and fish passage. The work would not result in any significant changes to water levels or project operation.

    l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number excluding the last three digits in the docket number field to access the document. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call 1 (866) 208-3676 or email [email protected], for TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item (h) above.

    m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    o. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to project works which are the subject of the amendment application. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    Dated: October 21, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27405 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14703-000] Empire State Hydro 302, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications

    On August 25, 2015, Empire State Hydro 302, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Braendly Dam Hydroelectric Project to be located on Fishkill River in Dutchess County, New York. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.

    The proposed project would redevelop an abandoned project and consist of: (1) An existing 130-foot-long, 18-foot-high cut stone with a concrete cap dam creating a reservoir with a surface area of approximately 3 acres and a storage capacity of 15 acre-feet at a normal water surface elevation of 119.5 feet mean sea level; (2) a new 6-foot-diameter, 300-foot-long steel penstock; (3) a new 50-foot-long by 35-foot-wide powerhouse containing two Kaplan turbine units with a rated capacity of 450 kilowatts each; and (4) a new 12.7-kilovolt, 500-foot-long transmission line. The project would have an annual generation of 3,200 megawatt-hours.

    Applicant Contact: Mark Boumansour, Empire State Hydro 302, LLC, 1401 Walnut Street, Suite 220, Boulder, CO 80302; phone: 303-440-3378.

    FERC Contact: Monir Chowdhury; phone: (202) 502-6736.

    Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.

    The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The first page of any filing should include docket number P-14703-000.

    More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number (P-14703) in the docket number field to access the document. For assistance, contact FERC Online Support.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27407 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP16-7-000] National Fuel Gas Supply Corporation; Notice of Request Under Blanket Authorization

    Take notice that on October 15, 2015, National Fuel Gas Supply Corporation (National Fuel), 6363 Main Street Williamsville, New York 14221-5887, filed in Docket No. CP16-7-000 a prior notice request pursuant to sections 157.205 and 157.216 of the Commission's regulations under the Natural Gas Act (NGA) as amended, requesting authorization to abandon an injection/withdrawal well (Well 5596) at its Henderson Storage Field in Mercer County, Pennsylvania. National Fuel avers that Well 5596 is leaking from the production casing and cannot be economically repaired. National Fuel asserts that with the abandonment of the well, the associated well line will no longer be required and thus requests authorization to abandon in place the approximately 775 feet of 4-inch-diameter pipe. National Fuel states that it will replace an existing culvert crossing on an access road as part of the abandonment activities. National Fuel states that the proposed abandonment of Well 5596 and the associated well line will have no impact on National Fuel's existing customers or storage operations, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or TTY, contact (202) 502-8659.

    Any questions concerning this application may be directed to Kenneth E. Webster, Attorney, National Fuel Gas Supply Corporation, 6363 Main Street, Williamsville, New York, 14221-5887, by telephone at (716) 857-7067, by facsimile at (716) 857-7206, or by email at [email protected]

    Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and seven copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27401 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG16-11-000.

    Applicants: Golden Hills Wind, LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Golden Hills Wind, LLC.

    Filed Date: 10/21/15.

    Accession Number: 20151021-5241.

    Comments Due: 5 p.m. ET 11/12/15.

    Docket Numbers: EG16-12-000.

    Applicants: Carousel Wind Farm, LLC.

    Description: Notice of Self-certification of Exempt Wholesale Generator Status of Carousel Wind Farm, LLC.

    Filed Date: 10/21/15.

    Accession Number: 20151021-5242.

    Comments Due: 5 p.m. ET 11/12/15.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1819-013; ER10-1820-016; ER10-1818-011; ER10-1817-012.

    Applicants: Northern States Power Company, a Minnesota corporation, Northern States Power Company, a Wisconsin corporation, Public Service Company of Colorado, Southwestern Public Service Company.

    Description: Notice of Change in Status of Northern States Power Company, a Minnesota corporation, et al.

    Filed Date: 10/21/15.

    Accession Number: 20151021-5213.

    Comments Due: 5 p.m. ET 11/12/15.

    Docket Numbers: ER16-133-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original Service Agreement No. 4280; NQ133 to be effective 10/14/2015.

    Filed Date: 10/22/15.

    Accession Number: 20151022-5102.

    Comments Due: 5 p.m. ET 11/12/15.

    Docket Numbers: ER16-134-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original Service Agreement Nos. 4281, 4282; Queue No. AA1-100 to be effective 9/23/2015.

    Filed Date: 10/22/15.

    Accession Number: 20151022-5117.

    Comments Due: 5 p.m. ET 11/12/15.

    Docket Numbers: ER16-135-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: 1637R2 Kansas Electric Power Cooperative, Inc. NITSA and NOA to be effective 10/1/2015.

    Filed Date: 10/22/15.

    Accession Number: 20151022-5143.

    Comments Due: 5 p.m. ET 11/12/15.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 22, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27408 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 12629-004] Milltown Hydroelectric, LLC, Green Power USA, LLC; Notice of Transfer of Exemption

    1. By letter filed October 6, 2015, Milltown Hydroelectric, LLC and Green Power USA, LLC informed the Commission that the exemption from licensing for the Corriveau Project, No. 12629, originally issued October 24, 2006,1 has been transferred to Green Power USA, LLC. The project is located on the Swift River in Oxford County, Maine. The transfer of an exemption does not require Commission approval.

    1 117 FERC ¶ 62,059, Order Granting Exemption from Licensing (5 MW or Less (2006).

    2. Green Power USA, LLC is now the exemptee of the Corriveau Project, No. 12629. All correspondence should be forwarded to: Ms. Nancy Lausier, Green Power USA, LLC, 24 Standpipe Road, Mechanic Falls, Maine 04256.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27406 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Commissioner and Staff Attendance at North American Electric Reliability Corporation Meetings

    The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission and/or Commission staff may attend the following meetings:

    North American Electric Reliability Corporation Member Representatives Committee and Board of Trustees Meetings Board of Trustees Corporate Governance and Human Resources Committee, Finance and Audit Committee, Compliance Committee, and Standards Oversight and Technology Committee Meetings The Westin Buckhead, 3391 Peachtree Road NE., Atlanta, GA 30326.

    November 4 (7:30 a.m.-5:00 p.m.) and November 5 (8:30 a.m.-12:00 p.m.), 2015.

    Further information regarding these meetings may be found at: http://www.nerc.com/Pages/Calendar.aspx.

    The discussions at the meetings, which are open to the public, may address matters at issue in the following Commission proceedings:

    Docket No. RR15-12, North American Electric Reliability Corporation Docket No. RR15-16, North American Electric Reliability Corporation Docket No. RD15-5, North American Electric Reliability Corporation

    For further information, please contact Jonathan First, 202-502-8529, or [email protected]

    Dated: October 21, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27402 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2790-064] Boott Hydropower, Inc.; Eldred L. Field Hydro Facility Trust; Notice of Application for Partial Transfer of License and Soliciting Comments, Motions to Intervene, and Protests

    On October 9, 2015, Boott Hydropower, Inc., co-licensee and Eldred L. Field Hydro Facility Trust, co-licensee (transferors) jointly filed an application for the partial transfer of the license of the Lowell Hydroelectric Project No. 2790 to remove as co-licensee Eldred L. Hydro Facility Trust and to convert Boott Hydropower, Inc. to an LLC. The project is located on the Merrimack River in Middlesex County, Massachusetts.

    Boott Hydropower, Inc. is a subsidiary of Enel Green Power North America, Inc. As part of an internal reorganization Boott Hydropower, Inc. intends to convert to an LLC, (Boott Hydropower, LLC). Boott Hydropower, Inc. seeks Commission approval to transfer the license for the Lowell Hydroelectric Project to Boott Hydropower, LLC as sole licensee in association with the conversion, effective on the date Boott Hydropower, LLC submits certified copies of its articles of conversion, plan of conversion, and limited liability company operating agreement to the Commission.

    Applicant Contact: For Applicants: Ms. Megan Beauregard, Senior Associate General Counsel, Enel Green Power North America, Inc., One Tech Drive, Suite 220, Andover, MA 01810, telephone: 978-681-1900, email: [email protected]

    FERC Contact: Patricia W. Gillis, (202) 502-8735.

    Deadline for filing comments, motions to intervene, and protests: 30 days from the date that the Commission issues this notice. The Commission strongly encourages electronic filing. Please file motions to intervene, comments, and protests using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-2790-064.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27404 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP15-552-000] Northern Natural Gas Company; Notice of Intent to Prepare an Environmental Assessment for the Proposed Gaines County Crossover Compressor Station and Request for Comments on Environmental Issues

    The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Gaines County Crossover Compressor Station (Project) involving construction and operation of facilities by Northern Natural Gas Company (Northern) in Gaines County, Texas. The Commission will use this EA in its decision-making process to determine whether the Project is in the public convenience and necessity.

    This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the Project. You can make a difference by providing us with your specific comments or concerns about the Project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before November 23, 2015.

    If you sent comments on this Project to the Commission before the opening of this docket on September 9, 2015, you will need to file those comments in Docket No. CP15-552-000 to ensure they are considered as part of this proceeding.

    This notice is being sent to the Commission's current environmental mailing list for this Project. State and local government representatives should notify their constituents of this proposed Project and encourage them to comment on their areas of concern.

    If you are a landowner receiving this notice, a Northern representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the Project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.

    Northern has provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (www.ferc.gov/resources/guides/gas/gas.pdf).

    Public Participation

    For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or [email protected] Please carefully follow these instructions so that your comments are properly recorded.

    (1) You can file your comments electronically using the eComment feature on the Commission's Web site (www.ferc.gov) under the link to Documents and Filings. This is an easy method for submitting brief, text-only comments on a project;

    (2) You can file your comments electronically by using the eFiling feature on the Commission's Web site (www.ferc.gov) under the link to Documents and Filings. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on “eRegister.” If you are filing a comment on a particular project, please select “Comment on a Filing” as the filing type; or

    (3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the Project docket number (CP15-552-000) with your submission:

    Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426. Summary of the Proposed Project

    Northern proposes to construct and operate a new compressor station in Gaines County, Texas. The Project would include two new natural gas-fired turbine compressor units rated at approximately 18,089 horsepower (HP) and would deliver about 210 million standard cubic feet of natural gas per day to supply natural gas for electrical power plants.

    If approved as proposed, the Project would include installation of two units: (1) Solar Taurus 70-10802S with approximately 11,152 HP; and (2) Solar Taurus 60-7302S with approximately 6,937 HP. The suction side of the compressor station would be connected to the existing 30-inch-diameter Spraberry to Plains pipeline. The station would discharge to the existing 30-inch-diameter Kermit to Beaver pipeline. The proposed Project would also include the installation of two compressor buildings, a control building, an auxiliary building, a septic system and associated above-grade and below-grade piping, and valves and instrumentation.

    The general location of the proposed Project facilities is shown in appendix 1.1

    1 The appendices referenced in this notice will not appear in the Federal Register. Copies of appendices were sent to all those receiving this notice in the mail and are available at www.ferc.gov using the link called “eLibrary” or from the Commission's Public Reference Room, 888 First Street NE., Washington, DC 20426, or call (202) 502-8371. For instructions on connecting to eLibrary, refer to the last page of this notice.

    Land Requirements for Construction

    Construction of the proposed Project facilities and temporary workspace would disturb approximately 27.8 acres of land. The total acreage maintained for permanent operation of the compressor station would be approximately 20 acres of land. Northern would acquire an approximately 20-acre site for the new compressor station and access road. The predominant land use that would be impacted by the proposed Project is agricultural and fallow cropland.

    The EA Process

    The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us 2 to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to address in the EA. We will consider all filed comments during the preparation of the EA.

    2 “We,” “us,” and “our” refer to the environmental staff of the Commission's Office of Energy Projects.

    In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed Project under these general headings:

    • geology and soils;

    • land use;

    • water resources, fisheries, and wetlands;

    • cultural resources;

    • vegetation and wildlife;

    • air quality and noise;

    • endangered and threatened species;

    • public safety; and

    • cumulative impacts

    We will also evaluate reasonable alternatives to the proposed Project or portions of the Project, and make recommendations on how to lessen or avoid impacts on the various resource areas.

    The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.

    With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this Project to formally cooperate with us in the preparation of the EA.3 Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.

    3 The Council on Environmental Quality regulations addressing cooperating agency responsibilities are at Title 40, Code of Federal Regulations, Part 1501.6.

    Consultations Under Section 106 of the National Historic Preservation Act

    In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the Project's potential effects on historic properties.4 We will define the Project-specific Area of Potential Effects (APE) in consultation with the SHPO as the Project develops. On natural gas facility projects, the APE at a minimum encompasses all areas subject to ground disturbance (examples include construction right-of-way, contractor/pipe storage yards, compressor stations, and access roads). Our EA for this Project will document our findings on the impacts on historic properties and summarize the status of consultations under section 106.

    4 The Advisory Council on Historic Preservation's regulations are at Title 36, Code of Federal Regulations, Part 800. Those regulations define historic properties as any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places.

    Environmental Mailing List

    The environmental mailing list includes: Federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for Project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the Project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed Project.

    If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 2).

    Becoming an Intervenor

    In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at http://www.ferc.gov/resources/guides/how-to/intervene.asp.

    Additional Information

    Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at www.ferc.gov using the “eLibrary” link. Click on the eLibrary link, click on “General Search” and enter the docket number, excluding the last three digits in the Docket Number field (i.e., CP15-552). Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659. The eLibrary link also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rulemakings.

    In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to www.ferc.gov/docs-filing/esubscription.asp.

    Finally, public meetings or site visits will be posted on the Commission's calendar located at www.ferc.gov/EventCalendar/EventsList.aspx along with other related information.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27398 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP16-3-000] Texas Eastern Transmission, LP; Notice of Application

    Take notice that on October 8, 2015, Texas Eastern Transmission, LP (Texas Eastern) 5400 Westheimer Court, Houston, Texas 77056-5310, filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and the Federal Energy Regulatory Commission's (Commission) regulations seeking authorization to: (1) Construct, install, own, operate, and maintain approximately 15.8 miles of 36-inch diameter pipeline at three locations in Ohio; (2) install a new 16,875 horsepower compressor unit at an existing compressor station in Tompkinsville, Kentucky; and (3) modify 12 existing compressor stations to allow for reverse flow capabilities in various states. These facilities are more fully described herein and comprise the Access South Project, Adair Southwest Project and the Lebanon Extension Project (Projects), all as more fully described in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding this application should be directed to Steven Hellman, Associate General Counsel, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251-1642, or call (713) 627-5215, or fax (713) 386-4405, or by email [email protected]

    On March 31, 2015, Commission staff granted Texas Eastern's request to use the pre-filing process and assigned Docket No. PF15-17-000 to staff activities involving the Projects. Now, as of the filing of this application on October 8, 2015, the NEPA Pre-Filing Process for this project has ended. From this time forward, this proceeding will be conducted in Docket No. CP16-3-000 as noted in the caption of this Notice.

    Texas Eastern states the Projects will enable it to transport up to an additional 622,000 dekatherms per day (Dth/d) of natural gas on Texas Eastern's existing mainline facilities from a receipt point in Uniontown, Pennsylvania. Specifically, the Access South Project would provide up to 320,000 Dth/d of capacity to transport supply from a receipt point in Uniontown, Pennsylvania to delivery points in Texas Eastern's Access Area Zone ELA and Market Zone M1 in Attala County, Mississippi. The Adair Southwest Project would provide up to 200,000 Dth/d of capacity to transport supply from a receipt point in Uniontown, Pennsylvania to delivery points in Texas Eastern's Market Zone M2 in Adair County, Kentucky. Finally, the Lebanon Extension Project would provide up to 102,000 Dth/d of capacity to transport supply from the Uniontown, Pennsylvania receipt point to delivery points in Market Zone M2 in or near Lebanon, Ohio. Texas Eastern has executed Precedent Agreements for long-term firm transportation service for the total capacity of all three Projects and has made standalone contractual commitments with the customers of each Project to construct the facilities required to provide service under each of the Projects, as necessary.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Comment Date: November 12, 2015.

    Dated: October 22, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27399 Filed 10-27-15; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-RCRA-2015-0606, FRL-9936-30-OSWER] Agency Information Collection Activities; Proposed Collection; Comment Request; General Hazardous Waste Facility Standards. AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), General Hazardous Waste Facility Standards (EPA ICR No. 1571.11, OMB Control No. 2050-0120) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through February 29, 2016. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Comments must be submitted on or before December 28, 2015.

    ADDRESSES:

    Submit your comments, referencing by Docket ID No. EPA-HQ-RCRA-2015-0606, online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Norma Abdul-Malik, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703-308-8753; fax number: 703-308-8617; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents which explain in detail the information the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

    Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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, e.g., permitting electronic submission of responses. The EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, the EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB.

    Abstract: Section 3004 of the Resource Conservation and Recovery Act (RCRA), as amended, requires that the U.S. Environmental Protection Agency develop standards for hazardous waste treatment, storage, and disposal facilities (TSDFs) as may be necessary to protect human health and the environment. Subsections 3004(a)(1), (3), (4), (5), and (6) specify that these standards include, but not be limited to, the following requirements:

    • Maintaining records of all hazardous wastes identified or listed under subtitle C that are treated, stored, or disposed of, and the manner in which such wastes were treated, stored, or disposed of;

    • Operating methods, techniques, and practices for treatment, storage, or disposal of hazardous waste;

    • Location, design, and construction of such hazardous waste treatment, disposal, or storage facilities;

    • Contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of any such hazardous waste; and

    • Maintaining or operating such facilities and requiring such additional qualifications as to ownership, continuity of operation, training for personnel, and financial responsibility as may be necessary or desirable.

    The regulations implementing these requirements are codified in 40 CFR parts 264 and 265. The collection of this information enables the EPA to properly determine whether owners/operators or hazardous waste treatment, storage, and disposal facilities meet the requirements of Section 3004(a) of RCRA.

    Form Numbers: None.

    Respondents/affected entities: Business and other for-profit, as well as State, Local, and Tribal governments.

    Respondent's obligation to respond: Mandatory (RCRA section 3004).

    Estimated number of respondents: 1,872.

    Frequency of response: On occasion.

    Total estimated burden: 672,417 hours. Burden is defined at 5 CFR 1320.03(b).

    Total estimated cost: $38,978,384 which includes $38,444,859 annualized labor costs and $535,525 annualized capital or O&M costs.

    Changes in Estimates: The burden hours are likely to stay substantially the same.

    Dated: October 19, 2015. Barnes Johnson, Director, Office of Resource Conservation and Recovery.
    [FR Doc. 2015-27465 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-ORD-2015-0528; FRL-9936-32-ORD] Board of Scientific Counselors Safe and Sustainable Water Resources Subcommittee; Notification of Public Teleconference Meeting and Public Comment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of public teleconference meeting and public comment.

    SUMMARY:

    Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the U.S. Environmental Protection Agency, Office of Research and Development (ORD), gives notice of a public teleconference meeting of the Board of Scientific Counselors (BOSC) Safe and Sustainable Water Resources Subcommittee.

    DATES:

    The teleconference meeting will be held on Friday, November 13, 2015, from 12:00 p.m. to 2:00 p.m., Eastern Time. The teleconference may adjourn early if all business is finished or may adjourn late if additional time is needed. Any member of the public interested in receiving a draft agenda, attending the teleconference, or making a presentation during the teleconference may contact Cindy Roberts, Designated Federal Officer, via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section below. Requests will be accepted up to one business day before the meeting.

    ADDRESSES:

    Participation in the meeting will be by teleconference only; meeting rooms will not be used. Members of the public may obtain the call-in number and access code for the call from Cindy Roberts via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section below.

    FOR FURTHER INFORMATION CONTACT:

    Questions or correspondence concerning the teleconference meeting should be directed to Cindy Roberts, Designated Federal Officer, Environmental Protection Agency, by mail at 1200 Pennsylvania Avenue NW., (MC 8104 R), Washington, DC 20460; by telephone at 202-564-1999; or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    General Information: The teleconference is open to the public. Any member of the public interested in receiving a draft agenda, attending the teleconference, or making a presentation during the teleconference may contact Cindy Roberts via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section above. Teleconference deliberations will focus on draft report findings and recommendations from an August 2015 meeting. Documents from the August meeting are available for viewing and downloading at: http://www2.epa.gov/bosc/safe-and-sustainable-water-resources-bosc-subcommittee. Proposed agenda items for the teleconference include, but are not limited to, the following: presentation and discussion of the subcommittee's draft responses to the charge questions and approval of the final draft letter report prior to its submission to the BOSC Executive Committee.

    Oral Statements: In general, each individual or groups making remarks during the public comment period will be limited to five (5) minutes. To accommodate the number of people who want to address the BOSC Safe and Sustainable Water Resources Subcommittee, only one representative of a particular community, organization, or group will be allowed to speak.

    Written Statements: Written comments for the meeting will be accepted up to one business day before the meeting, and will be included in the materials distributed to the BOSC Safe and Sustainable Water Resources Subcommittee prior to the teleconference. Written comments should be sent to Cindy Roberts, Environmental Protection Agency, via email at [email protected] or by mail to 1200 Pennsylvania Avenue NW., (MC 8104 R), Washington, DC 20460; or submitted through regulations.gov, Docket ID No. EPA-HQ-ORD-2015-0467.

    Information about Services for Individuals with Disabilities: For information about access or services for individuals with disabilities, please contact Cindy Roberts at 202-564-1999 or via email at [email protected] To request special accommodations for a disability, please contact Cindy Roberts at least ten days prior to the teleconference to give EPA sufficient time to process your request.

    Dated: October 22, 2015. Fred S. Hauchman, Director, Office of Science Policy.
    [FR Doc. 2015-27468 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2015-0435; FRL-9935-79] Agency Information Collection Activities; Proposed Renewal of the Collection under OMB Control No. 2070-0030, EPA ICR No. 0795.15; Comment Request AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). The ICR, entitled: “Notification of Chemical Exports—TSCA Section 12(b)” and identified by EPA ICR No. 0795.15 and OMB Control No. 2070-0030, represents the renewal of an existing ICR that is scheduled to expire on August 31, 2016. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.

    DATES:

    Comments must be received on or before December 28, 2015.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0435, by one of the following methods:

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Mike Mattheisen, Chemical Control Division (7405-M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-3077; email address: [email protected]

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

    SUPPLEMENTARY INFORMATION: I. What information is EPA particularly interested in?

    Pursuant to Paperwork Reduction Act (PRA) section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:

    1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.

    2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.

    3. Enhance the quality, utility, and clarity of the information to be collected.

    4. 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, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.

    II. What information collection activity or ICR does this action apply to?

    Title: Notification of Chemical Exports—TSCA Section 12(b).

    ICR number: EPA ICR No. 0795.15.

    OMB control number: OMB Control No. 2070-0030.

    ICR status: This ICR is currently scheduled to expire on August 31, 2016. The Agency may not conduct or sponsor, and a person is not required to respond to a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the Code of Federal Regulations (CFR), after appearing in the Federal Register when approved, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers for certain EPA regulations is consolidated in 40 CFR part 9.

    Abstract: Section 12(b) of the Toxic Substances Control Act (TSCA) requires any person who exports or intends to export a chemical substance or mixture that is regulated under TSCA sections 4, 5, 6 and/or 7 to notify EPA of such export or intent to export. This requirement is described in more detail at 40 CFR part 707, subpart D. Upon receipt of notification, EPA advises the government of the importing country of the U.S. regulatory action that required the notification with respect to that substance. EPA uses the information obtained from the submitter via this collection to advise the government of the importing country. This information collection addresses the burden associated with industry reporting of export notifications.

    Responses to the collection of information are mandatory (see 40 CFR part 707, subpart D). Respondents may claim all or part of a notice confidential. EPA will disclose information that is covered by a claim of confidentiality only to the extent permitted by, and in accordance with, the procedures in TSCA section 14 and 40 CFR part 2.

    Burden statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 1.3 hours per response. Burden is defined in 5 CFR 1320.3(b).

    The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:

    Respondents/Affected Entities: Entities potentially affected by this ICR are companies that export chemical substances or mixtures from the United States to foreign countries.

    Estimated total number of potential respondents: 240.

    Frequency of response: On occasion.

    Estimated total average number of responses for each respondent: 12.9.

    Estimated total annual burden hours: 4,032 hours.

    Estimated total annual costs: $278,118. This includes an estimated burden cost of $278,118 and an estimated cost of $0 for capital investment or maintenance and operational costs.

    III. Are there changes in the estimates from the last approval?

    There is an increase of 7 hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. This increase reflects EPA's correction of errors in the previous submission. This change is an adjustment.

    IV. What is the next step in the process for this ICR?

    EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another Federal Register document pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the technical person listed under FOR FURTHER INFORMATION CONTACT.

    Authority:

    44 U.S.C. 3501 et seq.

    Dated: October 19, 2015. James Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention.
    [FR Doc. 2015-27470 Filed 10-27-15; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0546 and 3060-0980] Information Collections Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before December 28, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Cathy Williams, FCC, via email to [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0546.

    Title: Section 76.59 Definition of Markets for Purposes of the Cable Television Mandatory Television Broadcast Signal Carriage Rules.

    Form Number: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business and other for-profit entities.

    Number of Respondents and Responses: 180 respondents and 200 responses.

    Estimated Time per Response: 0.5 to 40 hours.

    Frequency of Response: On occasion reporting requirement; Third party disclosure requirement; Recordkeeping requirement.

    Total Annual Burden: 1,486 hours.

    Total Annual Costs: $1,387,950.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 151, 154(i), 303(r), 338 and 534.

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Privacy Impact Assessment(s): No impact(s).

    Needs and Uses: On September 2, 2015, the Commission released a Report and Order (Order), FCC 15-111, in MB Docket No. 15-71, adopting satellite television market modification rules to implement Section 102 of the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (STELAR). The STELAR amended the Communications Act and the Copyright Act to give the Commission authority to modify a commercial television broadcast station's local television market—defined by The Nielsen Company's Designated Market Area (DMA) in which it is located—to include additional communities or exclude communities for purposes of better effectuating satellite carriage rights. The Commission previously had the authority to modify a station's market only in the cable carriage context. Market modification allows the Commission to modify the local television market of a particular commercial television broadcast station to enable commercial television stations, cable operators and satellite carriers to better serve the interests of local communities. Market modification provides a means to avoid rigid adherence to DMA designations and to promote consumer access to in-state and other relevant television programming. Section 338(l) of the Communications Act (the satellite market modification provision) and Section 614(h)(1)(C) of the Communications Act (the corresponding cable provision) permit the Commission to add communities to or delete communities from a station's local television market following a written request. Furthermore, the Commission may determine that particular communities are part of more than one television market.

    Section 76.59(a) of the Commission's Rules authorizes the filing of market modification petitions and governs who may file such a petition. With respect to cable market modification petitions, a commercial TV broadcast station and cable system operator may file a market modification petition to modify the local television market of a particular commercial television broadcast station for purposes of cable carriage rights. With respect to satellite market modification petitions, a commercial TV broadcast stations, satellite carrier and county governmental entity (such as a county board, council, commission or other equivalent subdivision) may file a market modification petition to modify the local television market of a particular commercial television broadcast station for purposes of satellite carriage rights. Section 76.59(b) of the Commission's Rules requires that market modification petitions and responsive pleadings (e.g., oppositions, comments, reply comments) must be submitted in accordance with the procedures for filing Special Relief petitions in Section 76.7 of the rules. Section 76.59(b) of the Commission's Rules requires petitioners (e.g., commercial TV broadcast stations, cable system operators, satellite carriers and county governments) to include the specific evidence in support of market modification petitions.

    Section 338(l)(3) of the Communications Act provides that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.” If a satellite carrier opposes a market modification petition because the resulting carriage would be technically or economically infeasible pursuant to Section 338(l)(3), the carrier must provide specific evidence in its opposition or response to a pre-filing coordination request (see below) to demonstrate its claim of infeasibility. If the satellite carrier is claiming infeasibility based on insufficient spot beam coverage, then the carrier may instead provide a detailed certification submitted under penalty of perjury. Although the Commission will not require satellite carriers to provide supporting documentation as part of their certification, the Commission may decide to look behind any certification and require supporting documentation when it deems it appropriate, such as when there is evidence that the certification may be inaccurate. In the event that the Commission requires supporting documentation, it will require a satellite carrier to provide its “satellite link budget” calculations that were created for the new community. Because the Commission may determine in a given case that supporting documentation should be provided to support a detailed certification, satellite carriers are required to retain such “satellite link budget” information in the event that the Commission determines further review by the Commission is necessary. Satellite carriers must retain such information throughout the pendency of Commission or judicial proceedings involving the certification and any related market modification petition. If satellite carriers have concerns about providing proprietary and confidential information underlying their analysis, they may request confidentiality.

    The Report and Order establishes a “pre-filing coordination” process that will allow a prospective petitioner for market modification (i.e., broadcaster or county government), at its option, to request/obtain a certification from a satellite carrier about whether or not (and to what extent) carriage resulting from a contemplated market modification is technically and economically feasible for such carrier before the prospective petitioner undertakes the time and expense of preparing and filing a satellite market modification petition. To initiate this process, a prospective petitioner may make a request in writing to a satellite carrier for the carrier to provide the certification about the feasibility or infeasibility of carriage. A satellite carrier must respond to this request within a reasonable amount of time by providing a feasibility certification to the prospective petitioner. A satellite carrier must also file a copy of the correspondence and feasibility certification it provides to the prospective petitioner in this docket electronically via ECFS so that the Media Bureau can track these certifications and monitor carrier response time. If the carrier is claiming spot beam coverage infeasibility, then the certification provided by the carrier must be the same type of detailed certification that would be required in response to a market modification petition. For any other claim of infeasibility, the carrier's feasibility certification must explain in detail the basis of such infeasibility and must be prepared to provide documentation in support of its claim, in the event the prospective petitioner decides to seek a Commission determination about the validity of the carrier's claim. If carriage is feasible, a statement to that effect must be provided in the certification. To obtain a Commission determination about the validity of the carrier's claim of infeasibility, a prospective petitioner must either file a (separate) petition for special relief or its market modification petition.

    OMB Control Number: 3060-0980.

    Title: Implementation of the Satellite Home Viewer Improvement Act of 1999: Local Broadcast Signal Carriage Issues and Retransmission Consent Issues, 47 CFR Section 76.66.

    Form Number: Not applicable.

    Type of Review: Revision of a currently approved collection.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 10,300 respondents; 11,978 responses.

    Estimated Time per Response: 1 hour to 5 hours.

    Frequency of Response: Third party disclosure requirement; On occasion reporting requirement; Once every three years reporting requirement; Recordkeeping requirement.

    Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 325, 338, 339 and 340.

    Total Annual Burden: 12,186 hours.

    Total Annual Cost: $24,000.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Needs and Uses: On September 2, 2015, the Commission released a Report and Order (Order), FCC 15-111, in MB Docket No. 15-71, adopting satellite television market modification rules to implement Section 102 of the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (STELAR). With respect to this collection, the Order amended Section 76.66 of the Commission's Rules by adding a new paragraph (d)(6) that addresses satellite carriage after a market modification is granted by the Commission.

    47 CFR Section 76.66(d)(6) addresses satellite carriage after a market modification is granted by the Commission. The rule states that television broadcast stations that become eligible for mandatory carriage with respect to a satellite carrier (pursuant to § 76.66) due to a change in the market definition (by operation of a market modification pursuant to § 76.59) may, within 30 days of the effective date of the new definition, elect retransmission consent or mandatory carriage with respect to such carrier. A satellite carrier shall commence carriage within 90 days of receiving the carriage election from the television broadcast station. The election must be made in accordance with the requirements of 47 CFR Section 76.66(d)(1).

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2015-27391 Filed 10-27-15; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0741] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before December 28, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0741.

    Title: Technology Transitions, GN Docket No. 13-5, et al.

    Form Number(s): N/A.

    Type of Review: Revision of currently approved collection.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 5,357 respondents; 573,767 responses.

    Estimated Time per Response: 0.5-8 hours.

    Frequency of Response: On occasion reporting requirements; recordkeeping; third party disclosure.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 222 and 251.

    Total Annual Burden: 575,840 hours.

    Total Annual Cost: No cost.

    Privacy Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: The Commission is not requesting that the respondents submit confidential information to the FCC. Respondents may, however, request confidential treatment for information they believe to be confidential under 47 CFR 0.459 of the Commission's rules.

    Needs and Uses: Section 251 of the Communications Act of 1934, as amended, 47 U.S.C. 251, is designed to accelerate private sector development and deployment of telecommunications technologies and services by spurring competition. Section 222(e) is also designed to spur competition by prescribing requirements for the sharing of subscriber list information. These OMB collections are designed to help implement certain provisions of sections 222(e) and 251, and to eliminate operational barriers to competition in the telecommunications services market. Specifically, these OMB collections will be used to implement (1) local exchange carriers' (“LECs”) obligations to provide their competitors with dialing parity and non-discriminatory access to certain services and functionalities; (2) incumbent local exchange carriers' (“ILECs”) duty to make network information disclosures; and (3) numbering administration. The Commission estimates that the total annual burden of the entire collection, as revised, is 575,840 hours. This revision relates to a change in one of many components of the currently approved collection—specifically, certain reporting, recordkeeping and/or third party disclosure requirements under section 251(c)(5). In August 2015, the Commission adopted new rules concerning certain information collection requirements implemented under section 251(c)(5) of the Act, pertaining to network change disclosures. The changes to those rules apply specifically to a certain subset of network change disclosures, namely notices of planned copper retirements. The changes are designed to provide interconnecting entities adequate time to prepare their networks for the planned copper retirements and to ensure that consumers are able to make informed choices. There is also a change in the number of potential respondents to the rules promulgated under that section. The number of respondents as to the information collection requirements implemented under section 251(c)(5) of the Act, has changed from 1,300 to 750, a decrease of 550 respondents from the previous submission. Under section 251(f)(1) of the Act, rural telephone companies are exempt from the requirements of section 251(c) “until (i) such company has received a bona fide request for interconnection, services, or network elements, and (ii) the State commission determines . . . that such request is not unduly economically burdensome, is technically feasible, and is consistent with section 254 . . . .” The Commission has determined that the number of potential respondents set forth in the previous submission inadvertently failed to take this exemption into account. There are 1,429 ILECs nationwide. Of those, 87 are non-rural ILECs and 1,342 are rural ILECs. The Commission estimates that of the 1,342 rural ILECs, 679 are entitled to the exemption and 663 are not entitled to the exemption and thus must comply with rules promulgated under section 251(c) of the Act, including the rules that are the subject of this information collection.

    Thus, the Commission estimates that there are 87 (non-rural) + 663 (rural) = 750 potential respondents. The Commission estimates that the revision does not result in any additional outlays of funds for hiring outside contractors or procuring equipment.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2015-27338 Filed 10-27-15; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL ELECTION COMMISSION Sunshine Act Notice AGENCY:

    Federal Election Commission.

    DATE & TIME:

    Monday, November 2, 2015 At 4:00 p.m.

    PLACE:

    999 E Street NW., Washington, DC (Ninth Floor).

    STATUS:

    This hearing will be open to the public.

    ITEM TO BE DISCUSSED:

    Audit Hearing: Gary Johnson 2012, Inc.

    Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary, at (202) 694-1040, at least 72 hours prior to the hearing date.

    PERSON TO CONTACT FOR INFORMATION:

    Judith Ingram, Press Officer, Telephone: (202) 694-1220.

    Shawn Woodhead Werth, Secretary and Clerk of the Commission.
    [FR Doc. 2015-27618 Filed 10-26-15; 4:15 pm] BILLING CODE 6715-01-P
    FEDERAL MARITIME COMMISSION Notice of Agreements Filed

    The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the Federal Register. Copies of the agreements are available through the Commission's Web site (www.fmc.gov) or by contacting the Office of Agreements at (202) 523-5793 or [email protected]

    Agreement No.: 011383-047.

    Title: Venezuelan Discussion Agreement.

    Parties: Hamburg-Süd; King Ocean Services Limited, Inc.; and Seaboard Marine Ltd.

    Filing Party: Wayne R. Rohde, Esq.; Cozen O'Conner; 1200 19th Street NW., Washington, DC 20036.

    Synopsis: The amendment deletes Seafreight Line, Ltd. as a party to the Agreement.

    Agreement No.: 012231-001.

    Title: Seaboard/Hybur Ltd. Space Charter Agreement.

    Parties: Seaboard Marine Ltd. and Hybur Ltd.

    Filing Party: Wayne R. Rohde, Esq.; Cozen O'Conner; 1200 19th Street NW., Washington, DC 20036.

    Synopsis: The amendment would update provisions related to space provided to Seaboard by Hybur.

    Agreement No.: 201143-012.

    Title: West Coast MTO Agreement.

    Parties: APM Terminals Pacific, Ltd.; California United Terminals, Inc.; Eagle Marine Services, Ltd.; International Transportation Service, Inc.; Long Beach Container Terminal, Inc.; Seaside Transportation Service LLC; Trapac, Inc.; Total Terminals LLC; West Basin Container Terminal LLC; Yusen Terminals, Inc.; Pacific Maritime Services, L.L.C.; SSA Terminals, LLC; and SSA Terminal (Long Beach), LLC.

    Filing Party: Wayne R. Rohde, Esq.; Cozen O'Connor; 1200 19th Street NW., Washington, DC 20036.

    Synopsis: The amendment would add Everport Terminal Services, Inc. as a party to the Agreement.

    Agreement No.: 201202-007.

    Title: Oakland MTO Agreement.

    Parties: Ports America Outer Harbor Terminal, LLC; Seaside Transportation Service LLC; SSA Terminals, LLC; SSA Terminals (Oakland), LLC; and Trapac, Inc.

    Filing Party: Wayne R. Rohde, Esq.; Cozen O'Connor; 1200 19th Street NW., Washington, DC 20036.

    Synopsis: The amendment would add Everport Terminal Services, Inc. as a party to the Agreement.

    By order of the Federal Maritime Commission.

    Dated: October 23, 2015. Rachel E. Dickon, Assistant Secretary.
    [FR Doc. 2015-27455 Filed 10-27-15; 8:45 am] BILLING CODE 6731-AA-P
    FEDERAL TRADE COMMISSION Agency Information Collection Activities; Submission for OMB Review; Comment Request; Extension AGENCY:

    Federal Trade Commission (“FTC” or “Commission”).

    ACTION:

    Notice.

    SUMMARY:

    The FTC intends to ask the Office of Management and Budget (“OMB”) to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance 1 for the FTC's shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the disclosure requirements in subpart N of Regulation V (“Rule”). That clearance expires on December 31, 2015.

    1 OMB Control No. 3084-0137.

    DATES:

    Comments must be filed by November 27, 2015.

    ADDRESSES:

    Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “Subpart N of Regulation V, PRA Comment, P125403,” on your comment. File your comment online at https://ftcpublic.commentworks.com/ftc/regulationVsubpartNpra2 by following the instructions on the Web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be addressed to Ryan Mehm, Attorney, Bureau of Consumer Protection, (202) 326-2918, Federal Trade Commission, 600 Pennsylvania Ave. NW., Washington, DC 20580.

    SUPPLEMENTARY INFORMATION:

    On August 6, 2015, the FTC sought public comment on the information collection requirements associated with subpart N (80 FR 46988). No relevant comments were received. That Notice details staff's methodology behind the estimates restated here in summary form, while also providing an overview of the Rule and the underlying authorizing statute.

    Pursuant to the OMB regulations, 5 CFR part 1320, that implement the PRA, 44 U.S.C. 3501 et seq., the FTC is providing a second opportunity for the public to comment on:

    (1) Whether the disclosure requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.

    As before, the Commission specifically seeks more recent estimates of the number of requests consumers are making for free annual file disclosures. In addition to data on the number of requests, data on how the number of requests has changed over time, and how these requests are being received—by Internet, phone, or by mail—would be most helpful toward refining the FTC's burden estimates.

    The following summarizes the FTC net burden estimates 2 resulting from the analysis detailed in the August 6, 2015 Notice.

    2 Because the FTC shares enforcement authority with the CFPB for subpart N, the two agencies are splitting between them the related estimate of PRA burden for firms under their co-enforcement jurisdiction.

    1. Annual File Disclosures Provided Through the Internet: a. 8,320 hours b. $545,126 in labor costs to negotiate or renegotiate outsourced service contracts 2. Annual File Disclosures Requested Over the Telephone: a. 6,240 hours b. $408,845 in labor costs to negotiate or renegotiate outsourced service contracts 3. Annual File Disclosures Requiring Processing by Mail: a. 347,083 hours b. $5,747,694 in labor costs 4. Instructions to Consumers: a. 34,708 hours b. $574,764 in labor costs 5. Non-labor/capital costs: $11,931,500 (costs paid to third-party contractors to phone and internet capacity to handle increasing consumer request volume) 6. Net Burden to FTC After 50:50 Split with the CFPB a. 198,176 hours b. $3,638,215 associated labor costs c. $5,965,750 non-labor/capital costs

    Request for Comment: You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 27, 2015. Write “Subpart N of Regulation V, PRA Comment, P125403” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

    Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential” as provided in Section 6(f) of the FTC Act 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c).3 Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.

    3 In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/regulationVsubpartNpra2, by following the instructions on the Web-based form. When this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.

    If you file your comment on paper, write “Subpart N of Regulation V, PRA Comment, P125403,” on your comment and on the envelope. You can mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024.

    The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before November 27, 2015. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

    Comments on the information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5806.

    David C. Shonka, Principal Deputy General Counsel.
    [FR Doc. 2015-27446 Filed 10-27-15; 8:45 am] BILLING CODE 6750-01-P
    GENERAL SERVICES ADMINISTRATION [Notice-PMAB-2015-02; Docket No. 2015-0002; Sequence 29] The President's Management Advisory Board (PMAB); Notification of Upcoming Public Advisory Meeting AGENCY:

    Office of Executive Councils, General Services Administration (GSA).

    ACTION:

    Meeting notice.

    SUMMARY:

    The President's Management Advisory Board (PMAB), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), will hold a public meeting on Monday, November 16, 2015.

    DATES:

    Effective: October 28, 2015.

    Meeting date: The meeting will be held on Monday, November 16, 2015, beginning at 9:00 a.m. Eastern Standard Time (EST), ending no later than 1:00 p.m., EST.

    ADDRESSES:

    The meeting will be held at the Eisenhower Executive Office Building, 1650 Pennsylvania Avenue NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Brad Golson, Designated Federal Officer, President's Management Advisory Board, Office of Executive Councils, GSA, 1800 F Street NW., Washington, DC 20006, at 202-969-7989, or via email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The PMAB was established to provide independent advice and recommendations to the President and the President's Management Council on a wide range of issues related to the development of effective strategies for the implementation of best business practices to improve Federal Government management and operation.

    Agenda

    The main purpose of this meeting is to obtain recommendations from PMAB members on effective implementation of the FedStat process used by the Office of Management and Budget (OMB), to assess effective management practices, and of the Federal Information Technology Acquisition Reform Act (FITARA), which was passed by Congress during the 113th session of the United Sates Congress.

    Meeting Access

    The PMAB will convene its meeting in the Eisenhower Executive Office Building, 1650 Pennsylvania Avenue NW., Washington, DC 20504. Due to security, there will be no public admittance to the Eisenhower Building to attend the meeting. However, the meeting is open to the public and may be viewed at http://www.whitehouse.gov/live. Members of the public wishing to comment on the discussion or topics outlined in the Agenda should follow the steps detailed in Procedures for Providing Public Comments below.

    Availability of Materials for the Meeting

    Please see the PMAB Web site: ­(http://www.whitehouse.gov/administration/advisory-boards/pmab) for any materials available in advance of the meeting, and for meeting minutes that will be made available after the meeting. Detailed meeting minutes will be posted within 90 days of the meeting.

    Procedures for Providing Public Comments

    In general, public statements will be posted on the PMAB Web site (http://www.whitehouse.gov/administration/advisory-boards/pmab). Non-electronic documents will be made available for public inspection and copying in PMAB offices at GSA, 1800 F Street NW., Washington, DC 20405, on official business days between the hours of 10 a.m., and 5 p.m., EST. You can make an appointment to inspect statements by telephoning 202-695-9554. All statements, including attachments and other supporting materials received, are part of the public record and subject to public disclosure. Any statements submitted in connection with the PMAB meeting will be made available to the public under the provisions of the Federal Advisory Committee Act.

    The public is invited to submit written statements for this meeting until 12:30 p.m., EST, on Friday, November 13, by either of the following methods: Electronic or Paper Statements: Submit electronic statements to Mr. Golson, Designated Federal Officer at [email protected]; or send paper statements in triplicate to Mr. Golson at the PMAB GSA address above.

    Dated: October 21, 2015. Christine Harada, Associate Administrator, Office of Government-wide Policy, General Services Administration.
    [FR Doc. 2015-27368 Filed 10-27-15; 8:45 am] BILLING CODE 6820-BR-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [OMB Control No. 9000-00XX; Docket No. 2015-0055; Sequence 49] Information Collection; Payment to Small Business Subcontractors AGENCY:

    Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Withdrawal of notice.

    SUMMARY:

    The notice, OMB Control No. 9000-00XX, Payment to Small Business Subcontractors, published in the Federal Register, is being withdrawn and is no longer accepting comments.

    DATES:

    Effective: October 28, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Curtis E. Glover, Sr., Procurement Analyst, GSA, at 202-501-1448, or via email to [email protected]

    SUPPLEMENTARY INFORMATION: A. Purpose

    The notice, published in the Federal Register at 80 FR 60383, on October 6, 2015, requesting comments regarding a new information collection, 9000-00XX; Payment to Small Business Subcontractors, is being withdrawn. The notice is being withdrawn because it is associated with a rule which is still in process, and has not been published. Comments are no longer being sought at this time; however, the public will have a chance to comment once the rule is published.

    Edward Loeb, Acting Director, Federal Acquisition Policy Division, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.
    [FR Doc. 2015-27432 Filed 10-27-15; 8:45 am] BILLING CODE 6820-EP-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [30Day-16-0840] Agency Forms Undergoing Paperwork Reduction Act Review

    The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.

    Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.

    To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to [email protected] Direct written comments and/or suggestions regarding the items contained in this notice to the Attention: CDC Desk Officer, Office of Management and Budget, Washington, DC 20503 or by fax to (202) 395-5806. Written comments should be received within 30 days of this notice.

    Proposed Project

    Formative Research and Tool Development (OMB Control No. 0920-0840, Expiration 02/29/2016)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).

    Background and Brief Description

    The Centers for Disease Control and Prevention, National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP) requests a three-year approval and extension of the “Formative Research and Tool Development” generic information collection plan. This information collection request is designed to allow NCHHSTP to conduct formative research information collection activities used to inform many aspects of surveillance, communications, health promotion, and research project development for NCHHSTP's 4 priority diseases (HIV/AIDS, sexually transmitted diseases/infections (STD/STI), viral hepatitis, tuberculosis elimination and the Division of School and Adolescent Heath (DASH).

    Formative research is the basis for developing effective strategies including communication channels, for influencing behavior change. It helps researchers identify and understand the characteristics—interests, behaviors and needs—of target populations that influence their decisions and actions.

    Formative research is integral in developing programs as well as improving existing and ongoing programs. Formative research also looks at the community in which a public health intervention is being or will be implemented and helps the project staff understand the interests, attributes and needs of different populations and persons in that community. Formative research is research that occurs before a program is designed and implemented, or while a program is being conducted.

    NCHHSTP formative research is necessary for developing new programs or adapting programs that deal with the complexity of behaviors, social context, cultural identities, and health care that underlie the epidemiology of HIV/AIDS, viral hepatitis, STDs, and TB in the U.S, as well as for school and adolescent health.

    CDC conducts formative research to develop public-sensitive communication messages and user friendly tools prior to developing or recommending interventions, or care. Sometimes these studies are entirely behavioral but most often they are cycles of interviews and focus groups designed to inform the development of a product.

    Products from these formative research studies will be used for prevention of HIV/AIDS, Sexually Transmitted Infections (STI), viral Hepatitis, and Tuberculosis. Findings from these studies may also be presented as evidence to disease-specific National Advisory Committees, to support revisions to recommended prevention and intervention methods, as well as new recommendations.

    Much of CDC's health communication takes place within campaigns that have fairly lengthy planning periods—timeframes that accommodate the standard Federal process for approving data collections. Short term qualitative interviewing and cognitive research techniques have previously proven invaluable in the development of scientifically valid and population-appropriate methods, interventions, and instruments.

    This request includes studies investigating the utility and acceptability of proposed sampling and recruitment methods, intervention contents and delivery, questionnaire domains, individual questions, and interactions with project staff or electronic data collection equipment. These activities will also provide information about how respondents answer questions and ways in which question response bias and error can be reduced.

    This request also includes collection of information from public health programs to assess needs related to initiation of a new program activity or expansion or changes in scope or implementation of existing program activities to adapt them to current needs. The information collected will be used to advise programs and provide capacity-building assistance tailored to the identified needs.

    Overall, these development activities are intended to provide information that will increase the success of the surveillance or research projects through increasing response rates and decreasing response error, thereby decreasing future data collection burden to the public. The studies that will be covered under this request will include one or more of the following investigational modalities: (1) Structured and qualitative interviewing for surveillance, research, interventions and material development, (2) cognitive interviewing for development of specific data collection instruments, (3) methodological research (4) usability testing of technology-based instruments and materials, (5) field testing of new methodologies and materials, (6) investigation of mental models for health decision-making, to inform health communication messages, and (7) organizational needs assessments to support development of capacity. Respondents who will participate in individual and group interviews (qualitative, cognitive, and computer assisted development activities) are selected purposively from those who respond to recruitment advertisements.

    In addition to utilizing advertisements for recruitment, respondents who will participate in research on survey methods may be selected purposively or systematically from within an ongoing surveillance or research project. Participation of respondents is voluntary. The total burden hours are 55,820. There is no cost to participants other than their time.

    Estimated Annualized Burden Hours Type of respondent Form name Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average hours
  • per response
  • General public Screener Att6 68,208 1 10/60 Healthcare providers Screener Att6 29,232 1 10/60 General public Consent Forms Att9 34,104 1 5/60 Healthcare providers Consent Forms Att9 14,616 1 5/60 General public Individual interview Att4 5,544 1 1 Healthcare providers Individual Interview Att4 2,376 1 1 General Public Focus Group Interview Att7 3,360 1 2 Healthcare providers Focus Group Interview Att7 1,440 1 2 General public Survey of Individual Att5 25,200 1 30/60 Healthcare providers Survey of Individual Att5 10,800 1 30/60
    Leroy A. Richardson, Chief, Information Collection Review Office, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, Centers for Disease Control and Prevention.
    [FR Doc. 2015-27431 Filed 10-27-15; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families Proposed Information Collection Activity; Comment Request

    Proposed Project: Implementation Plan Guidance for the Tribal Maternal, Infant, and Early Childhood Home Visiting Grant Program.

    Title: Tribal Maternal, Infant, and Early Childhood Home Visiting Program Needs Assessment and Implementation Plan.

    OMB No.: 0970-0389.

    Description: Social Security Act, Title V, Section 511 (42 U.S.C. 711), as added by § 2951 of the Patient Protection and Affordable Care Act (Pub. L. 111-148), created the Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV) and authorized the Secretary of HHS (in Section 511(h)(2)(A)) to award grants to Indian tribes (or a consortium of Indian tribes), tribal organizations, or urban Indian organizations to conduct an early childhood home visiting program. The legislation set aside 3 percent of the total MIECHV program appropriation (authorized in Section 511(j)) for grants to tribal entities. Tribal MIECHV grants, to the greatest extent practicable, are to be consistent with the requirements of the MIECHV grants to states and jurisdictions (authorized in Section 511(c)), and include conducting a needs assessment and establishing quantifiable, measurable benchmarks.

    The Administration for Children and Families, Office of Child Care and Office of the Deputy Assistant Secretary for Early Childhood Development, in collaboration with the Health Resources and Services Administration, Maternal and Child Health Bureau, plans to awarded grants for the Tribal Maternal, Infant, and Early Childhood Home Visiting Program (Tribal Home Visiting). The Tribal Home Visiting grant awards will support 5-year cooperative agreements to conduct community needs assessments, plan for and implement high-quality, culturally-relevant, evidence-based home visiting programs in at-risk Tribal communities, and participate in research and evaluation activities to build the knowledge base on home visiting among Native populations.

    In Year 1 of the cooperative agreement, grantees must (1) conduct a comprehensive community needs and readiness assessment and (2) develop a plan to respond to identified needs. Specifically, grantees will be required to conduct or update a needs and readiness assessment, and develop an implementation plan to respond to those needs, including a plan for performance measurement and CQI and participating in or conducting rigorous evaluation activities. Grantees will be expected to submit the needs assessment and implementation plan within 10 months of the Year 1 award date.

    Respondents: Tribal Maternal, Infant, and Early Childhood Home Visiting Program Year 1 Grantees.

    Annual Burden Estimates Instrument Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden hours
  • per response
  • Total burden hours
    Tribal Maternal, Infant, and Early Childhood Home Visiting Program Needs Assessment and Plan for Responding to Identified Needs 25 1 100 2,500 Estimated Total Annual Burden Hours 2,500

    In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address: [email protected] All requests should be identified by the title of the information collection.

    The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.

    Robert Sargis, Reports Clearance Officer.
    [FR Doc. 2015-27416 Filed 10-27-15; 8:45 am] BILLING CODE 4184-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2012-N-0477] Agency Information Collection Activities; Proposed Collection; Comment Request; Investigational Device Exemptions Reports and Records AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on investigational device exemptions reports and records.

    DATES:

    Submit either electronic or written comments on the collection of information by December 28, 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-0477 for Agency Information Collection Activities; Proposed Collection; Comment Request; Investigational Device Exemptions Reports and Records. 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:

    FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information [,including each proposed [extension/reinstatement] of an existing collection of information,] before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Investigational Device Exemptions Reports and Records—21 CFR Part 812—OMB Control Number 0910-0078-Extension

    Section 520(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360j(g)) establishes the statutory authority to collect information regarding investigational devices, and establishes rules under which new medical devices may be tested using human subjects in a clinical setting. The Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) added section 520(g)(6) to the FD&C Act and permitted changes to be made to either the investigational device or to the clinical protocol without FDA approval of an investigational device exemption (IDE) supplement. An IDE allows a device, which would otherwise be subject to provisions of the FD&C Act, such as premarket notification or premarket approval, to be used in investigations involving human subjects in which the safety and effectiveness of the device is being studied. The purpose of part 812 (21 CFR part 812) is to encourage, to the extent consistent with the protection of public health and safety and with ethical standards, the discovery and development of useful devices intended for human use. The IDE regulation is designed to encourage the development of useful medical devices and allow investigators the maximum freedom possible, without jeopardizing the health and safety of the public or violating ethical standards. To do this, the regulation provides for different levels of regulatory control, depending on the level of potential risk the investigational device presents to human subjects. Investigations of significant risk devices, ones that present a potential for serious harm to the rights, safety, or welfare of human subjects, are subject to the full requirements of the IDE regulation. Nonsignificant risk device investigations, i.e., devices that do not present a potential for serious harm, are subject to the reduced burden of the abbreviated requirements. The regulation also includes provisions for treatment IDEs. The purpose of these provisions is to facilitate the availability, as early in the device development process as possible, of promising new devices to patients with life-threatening or serious conditions for which no comparable or satisfactory alternative therapy is available. Section 812.10 permits the sponsor of the IDE to request a waiver to all of the requirements of part 812. This information is needed for FDA to determine if waiver of the requirements of part 812 will impact the public's health and safety. Sections 812.20, 812.25, and 812.27 consist of the information necessary to file an IDE application with FDA. The submission of an IDE application to FDA is required only for significant risk device investigations.

    Section 812.20 lists the data requirements for the original IDE application, § 812.25 lists the contents of the investigational plan; and § 812.27 lists the data relating to previous investigations or testing. The information in the original IDE application is evaluated by the Center for Devices and Radiological Health to determine whether the proposed investigation will reasonably protect the public health and safety, and for FDA to make a determination to approve the IDE.

    Upon approval of an IDE application by FDA, a sponsor must submit certain requests and reports. Under § 812.35, a sponsor who wishes to make a change in the investigation that affects the scientific soundness of the study or the rights, safety, or welfare of the subjects, is required to submit a request for the change to FDA. Section 812.150 requires a sponsor to submit reports to FDA. These requests and reports are submitted to FDA as supplemental applications. This information is needed for FDA to assure protection of human subjects and to allow review of the study's progress. Section 812.36(c) identifies the information necessary to file a treatment IDE application. FDA uses this information to determine if wider distribution of the device is in the interest of the public health. Section 812.36(f) identifies the reports required to allow FDA to monitor the size and scope of the treatment IDE, to assess the sponsor's due diligence in obtaining marketing clearance of the device, and to ensure the integrity of the controlled clinical trials.

    Section 812.140 lists the recordkeeping requirements for investigators and sponsors. FDA requires this information for tracking and oversight purposes. Investigators are required to maintain records, including correspondence and reports concerning the study, records of receipt, use or disposition of devices, records of each subject's case history and exposure to the device, informed consent documentation, study protocol, a