Federal Register Vol. 80, No.224,

Federal Register Volume 80, Issue 224 (November 20, 2015)

Page Range72555-72897
FR Document

80_FR_224
Current View
Page and SubjectPDF
80 FR 72750 - Sunshine Act Meetings; National Science BoardPDF
80 FR 72721 - Incentive Auction Task Force Releases Revised Baseline Data and Prices for Reverse Auction; Announces Revised Filing Window DatesPDF
80 FR 72754 - Sunshine Act Meetings; Amended NoticePDF
80 FR 72751 - Sunshine Act Meeting NoticePDF
80 FR 72711 - Sunshine Act MeetingsPDF
80 FR 72686 - International Trade Data System Test Concerning the Electronic Submission of Certain Documentation Required for Imports of Uranium From the Russian Federation Using the Document Imaging SystemPDF
80 FR 72685 - Countervailing Duty Investigations of Certain Corrosion-Resistant Steel Products From India, Italy, the People's Republic of China, the Republic of Korea, and Taiwan: Alignment of Final Countervailing Duty Determinations With Final Antidumping Duty DeterminationsPDF
80 FR 72733 - Notice of Availability of the Draft Environmental Impact Statement for Previously Issued Oil and Gas Leases in the White River National Forest, COPDF
80 FR 72732 - Notice of Availability of the Draft Resource Management Plan Amendment and Supplemental Environmental Impact Statement for the Roan Plateau Planning Area, ColoradoPDF
80 FR 72715 - Availability of the Bonneville Purchasing Instructions (BPI) and Bonneville Financial Assistance Instructions (BFAI)PDF
80 FR 72680 - Notice of December 1, 2015 President's Global Development Council MeetingPDF
80 FR 72734 - Notice of Public Meeting, BLM Alaska Resource Advisory CouncilPDF
80 FR 72751 - Early Site Permit for the PSEG SitePDF
80 FR 72717 - Pesticide Registration Review; Draft Human Health and Ecological Risk Assessments for Certain Organophosphates; Extension of Comment PeriodPDF
80 FR 72717 - Pesticide Registration Review; Draft Human Health and Ecological Risk Assessments for Sulfonylureas; Notice of Availability and Request for Comment; Extension of Comment PeriodPDF
80 FR 72716 - Notice of Public Hearings for the Draft Northern Pass Transmission Line Project Environmental Impact Statement and the Supplement to the Draft EISPDF
80 FR 72712 - Industry Implementation Information DayPDF
80 FR 72719 - Environmental Impact Statements; Notice of AvailabilityPDF
80 FR 72676 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Multi-Year Specifications for Monitored and Prohibited Harvest Species Stock CategoriesPDF
80 FR 72722 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 72722 - Change in Bank Control Notices; Formations of, Acquisitions by, and Mergers of Bank Holding Companies; CorrectionPDF
80 FR 72592 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake (Great Bridge), VAPDF
80 FR 72608 - Energy Conservation Standards for Commercial Prerinse Spray Valves: Availability of Provisional Analysis ToolsPDF
80 FR 72680 - Notice of Public Meeting of the Assembly of the Administrative Conference of the United StatesPDF
80 FR 72777 - Projects Approved for Consumptive Uses of WaterPDF
80 FR 72783 - Motive Rail, Inc. d/b/a Missouri North Central Railroad-Lease and Operation Exemption-Illinois Central Railroad CompanyPDF
80 FR 72738 - Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same; Institution of InvestigationPDF
80 FR 72735 - Certain Automated Teller Machines, ATM Modules, Components Thereof, and Products Containing the Same; Institution of InvestigationPDF
80 FR 72782 - Union Pacific Railroad Company-Abandonment of Freight Easement-in Adams County, Colo.PDF
80 FR 72781 - Advisory Board; Notice of MeetingPDF
80 FR 72681 - Submission for OMB Review; Comment RequestPDF
80 FR 72688 - Submission for OMB Review; Comment RequestPDF
80 FR 72711 - Fair Credit Reporting Act DisclosuresPDF
80 FR 72727 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Improving Food Safety and Defense Capacity of the State and Local Level: Review of State and Local CapacitiesPDF
80 FR 72738 - Foreign Claims Settlement CommissionPDF
80 FR 72712 - Reserve Forces Policy Board; Notice of Federal Advisory Committee MeetingPDF
80 FR 72587 - Medical Devices; General Hospital and Personal Use Devices; Classification of the Ultraviolet Radiation Chamber Disinfection DevicePDF
80 FR 72736 - Trans-Pacific Partnership Agreement: Likely Impact on the U.S. Economy and on Specific Industry SectorsPDF
80 FR 72786 - Proposed Information Collection (VA Survey of Veteran Enrollees' Health and Use of Health Care (Survey of Enrollees)) Activity: Comment RequestPDF
80 FR 72787 - Agency Information Collection (Direct Deposit Enrollment (24-0296) and International Direct Deposit Enrollment (24-0296a)) Activity Under OMB ReviewPDF
80 FR 72754 - 2016 Railroad Experience Rating Proclamations, Monthly Compensation Base and Other DeterminationsPDF
80 FR 72787 - Agency Information Collection (Statement of Accredited Representative in Appealed Case) Under OMB ReviewPDF
80 FR 72709 - Procurement List; Addition and DeletionsPDF
80 FR 72710 - Procurement List; Proposed AdditionsPDF
80 FR 72684 - Submission for OMB Review; Comment RequestPDF
80 FR 72729 - Prospective Grant of Exclusive License: Development of In Vitro Diagnostics for the Detection of Diseases or Pathogenic AgentsPDF
80 FR 72713 - Meeting of the Defense Advisory Committee on Women in the Services (DACOWITS)PDF
80 FR 72750 - Proposal Review; Notice of MeetingsPDF
80 FR 72750 - Advisory Committee for Social, Behavioral and Economic Sciences; Notice of MeetingPDF
80 FR 72775 - Privacy Act of 1974, as Amended; Computer Matching Program (SSA/Department of the Treasury, Internal Revenue Service (IRS))-Match Number 1016PDF
80 FR 72686 - Export Trade Certificate of ReviewPDF
80 FR 72709 - Submission for OMB Review; Comment Request; Practitioner Conduct and DisciplinePDF
80 FR 72744 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Consumer Price Index Housing SurveyPDF
80 FR 72688 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts BayPDF
80 FR 72779 - Information and Guidance on the Inspection, Testing, and Maintenance of Emergency Window Exits on Railroad Passenger CarsPDF
80 FR 72728 - Determination That LIPTRUZET (Ezetimibe and Atorvastatin) Tablets, 10 Milligrams/10 Milligrams, 10 Milligrams/20 Milligrams, 10 Milligrams/40 Milligrams, and 10 Milligrams/80 Milligrams, Were Not Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
80 FR 72585 - Dental Devices; Reclassification of Electrical Salivary Stimulator SystemPDF
80 FR 72589 - Medical Devices; Exemption From Premarket Notification; Class II Devices; Electric Positioning ChairPDF
80 FR 72581 - Artificially Sweetened Fruit Jelly and Artificially Sweetened Fruit Preserves and Jams; Revocation of Standards of IdentityPDF
80 FR 72745 - Privacy Act of 1974; System of Records-Office of Inspector General Advanced Data Analytics SystemPDF
80 FR 72618 - Special Conditions: Gulfstream Aerospace Corporation, Gulfstream GVI Airplane; Non-Rechargeable Lithium Battery InstallationsPDF
80 FR 72555 - Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Shoulder-Belt Airbags for Side-Facing SeatsPDF
80 FR 72561 - Special Conditions: Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag DevicesPDF
80 FR 72725 - Medicare Program; Request for Information To Aid in the Design and Development of a Survey Regarding Patient and Family Member Experiences With Care Received in Inpatient Rehabilitation FacilitiesPDF
80 FR 72722 - Medicare Program; Request for Information To Aid in the Design and Development of a Survey Regarding Patient and Family Member Experiences With Care Received in Long-Term Care HospitalsPDF
80 FR 72753 - International Mail ContractPDF
80 FR 72591 - Elimination of Visa Page Insert Service for U.S. Passport Book HoldersPDF
80 FR 72621 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 72714 - Meeting of the Chief of Engineers Environmental Advisory BoardPDF
80 FR 72714 - Proposed Collection; Comment RequestPDF
80 FR 72649 - Relief From Joint and Several LiabilityPDF
80 FR 72735 - Welded Stainless Steel Pressure Pipe From IndiaPDF
80 FR 72719 - Communications Security, Reliability, and Interoperability Council; Notice of Public MeetingPDF
80 FR 72720 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
80 FR 72721 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
80 FR 72758 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options FacilityPDF
80 FR 72768 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to a Market Access and Routing Subsidy or “MARS”PDF
80 FR 72763 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Create a Market Access and Routing Subsidy or “MARS”PDF
80 FR 72775 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Merge FINRA Dispute Resolution, Inc. Into and With FINRA Regulation, Inc.PDF
80 FR 72756 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Proposed New MSRB Rule A-18, on Mandatory Participation in Business Continuity and Disaster Recovery TestingPDF
80 FR 72761 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees SchedulePDF
80 FR 72773 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 1014, “Obligations and Restrictions Applicable to Specialists and Registered Options Traders”PDF
80 FR 72592 - Significant New Use Rules on Certain Chemical Substances; WithdrawalPDF
80 FR 72784 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Fiduciary ActivitiesPDF
80 FR 72783 - Agency Information Collection Activities: Information Collection Renewal; Request for Comment; Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003PDF
80 FR 72665 - Roadless Area Conservation; National Forest System Lands in ColoradoPDF
80 FR 72740 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Proposed Collection: Extension of Currently Approved Collection Survey: Death in Custody Reporting Program-PrisonsPDF
80 FR 72741 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of Currently Approved Collection Survey: Death in Custody Reporting Program; Annual Survey of Jails; Survey of Jails in Indian CountryPDF
80 FR 72561 - Special Conditions: CFM International, LEAP-1B Engine Models; Incorporation of Woven Composite Fan BladesPDF
80 FR 72752 - Senior Executive Service Performance Review BoardPDF
80 FR 72708 - Submission for OMB Review; Comment RequestPDF
80 FR 72683 - Notice of Public Meeting of the Hawai'i State Advisory Committee for the Purpose To Discuss Its Reporting on Micronesian Immigration to Hawai'iPDF
80 FR 72752 - President's Commission on White House Fellowships Advisory Committee: Closed MeetingPDF
80 FR 72752 - Submission for Review: Health Benefits Election Form, OPM 2809, 3206-0141PDF
80 FR 72730 - Agency Information Collection Activities: Extension, Without Change, of an Existing Information Collection; Comment RequestPDF
80 FR 72739 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
80 FR 72739 - Notice of Lodging of Proposed First Modification to Consent Decree Under the Clean Air ActPDF
80 FR 72607 - Defense Federal Acquisition Regulation Supplement; Technical AmendmentsPDF
80 FR 72672 - Defense Federal Acquisition Regulation Supplement: Buy American and Balance of Payments Program-Clause Prescription (DFARS Case 2015-D037)PDF
80 FR 72673 - Defense Federal Acquisition Regulation Supplement: Duty-Free Entry Threshold (DFARS Case 2015-D036)PDF
80 FR 72606 - Defense Federal Acquisition Regulation Supplement: Eliminate Data Collection Requirement (DFARS Case 2015-D031)PDF
80 FR 72669 - Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030)PDF
80 FR 72674 - Defense Federal Acquisition Regulation Supplement; Long-Haul Telecommunications (DFARS Case 2015-D023)PDF
80 FR 72675 - Defense Federal Acquisition Regulation Supplement: Contract Term Limit for Shared Energy Savings Contract Services (DFARS Case 2015-D018)PDF
80 FR 72671 - Defense Federal Acquisition Regulation Supplement: Extension and Modification of Contract Authority for Advanced Component Development and Prototype Units (DFARS Case 2015-D008)PDF
80 FR 72599 - Defense Federal Acquisition Regulation Supplement: Photovoltaic Devices From the United States (DFARS Case 2015-D007)PDF
80 FR 72663 - Regulated Navigation Area; Columbus Day Weekend, New Year's Eve Events, and Fourth of July Events; Biscayne Bay, Miami, FLPDF
80 FR 72616 - Candidate DebatesPDF
80 FR 72681 - Agency Information Collection Activities: Proposed Collection; Comment Request-Generic Clearance for the Special Nutrition Programs Quick Response Surveys (SNP QRS)PDF
80 FR 72711 - Notice of Intent To Grant an Exclusive Patent LicensePDF
80 FR 72755 - Notice of Public Meeting of the U.S.-EU Communities of Research on Environmental, Health, and Safety Issues Related to NanomaterialsPDF
80 FR 72624 - Environmental Impact and Related ProceduresPDF
80 FR 72779 - Notice of Final Federal Agency Actions on Proposed Highway in MinnesotaPDF
80 FR 72839 - Treatment of Data Influenced by Exceptional EventsPDF
80 FR 72642 - Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development ProgramsPDF
80 FR 72731 - Federal Property Suitable as Facilities To Assist the HomelessPDF
80 FR 72563 - Airworthiness Directives; REIMS AVIATION S.A. AirplanesPDF
80 FR 72789 - National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process HeatersPDF
80 FR 72579 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 72569 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 72573 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 72576 - Airworthiness Directives; Zodiac Aerotechnics (Formerly Intertechnique Aircraft Systems)PDF
80 FR 72593 - Amitraz, Carfentrazone-ethyl, Ethephon, Malathion, Mancozeb, et al.; Tolerance ActionsPDF
80 FR 72565 - Airworthiness Directives; Lockheed Martin Corporation/Lockheed Martin Aeronautics Company AirplanesPDF

Issue

80 224 Friday, November 20, 2015 Contents Administrative Administrative Conference of the United States NOTICES Meetings: Assembly of the Administrative Conference of the United States, 72680 2015-29674 Agency Agency for International Development NOTICES Meetings: President's Global Development Council, 72680-72681 2015-29703 Agriculture Agriculture Department See

Economic Research Service

See

Food and Nutrition Service

See

Forest Service

AIRFORCE Air Force Department NOTICES Exclusive Patent License Approvals, 72711-72712 2015-29471 Bonneville Bonneville Power Administration NOTICES Bonneville Purchasing Instructions and Bonneville Financial Assistance Instructions, 72715-72716 2015-29715 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Fair Credit Reporting Act Disclosures, 72711 2015-29664 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare Program: Request for Information to Aid in the Design and Development of a Survey Regarding Patient and Family Member Experiences with Care Received in Inpatient Rehabilitation Facilities, 72725-72727 2015-29623 Request for Information to Aid in the Design and Development of a Survey Regarding Patient and Family Member Experiences with Care Received in Long-Term Care Hospitals, 72722-72725 2015-29622 Civil Rights Civil Rights Commission NOTICES Meetings: Hawai'i State Advisory Committee, 72683-72684 2015-29586 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake (Great Bridge), VA, 72592 2015-29677 PROPOSED RULES Regulated Navigation Areas: Columbus Day Weekend, New Year's Eve Events, and Fourth of July Events, Biscayne Bay, Miami, FL, 72663-72665 2015-29533 Commerce Commerce Department See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72684-72685 2015-29651
Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 72709-72711 2015-29653 2015-29654 Commodity Futures Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 72711 2015-29743 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fiduciary Activities, 72784-72786 2015-29595 Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transactions Act, 72783-72784 2015-29594 Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Eliminate Data Collection Requirement, 72606 2015-29556 Photovoltaic Devices from the U.S., 72599-72606 2015-29551 Technical Amendments, 72607 2015-29559 PROPOSED RULES Defense Federal Acquisition Regulation Supplement: Buy American and Balance of Payments Program—Clause Prescription, 72672-72673 2015-29558 Contract Term Limit for Shared Energy Savings Contract Services, 72675-72676 2015-29553 Duty-Free Entry Threshold, 72673-72674 2015-29557 Extension and Modification of Contract Authority for Advanced Component Development and Prototype Units, 72671-72672 2015-29552 Long-Haul Telecommunications, 72674-72675 2015-29554 Promoting Voluntary Post-Award Disclosure of Defective Pricing, 72669-72671 2015-29555 NOTICES Meetings: Industry Implementation Information Day, 72712 2015-29687 Defense Department Defense Department See

Air Force Department

See

Defense Acquisition Regulations System

See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72714 2015-29613 Meetings: Defense Advisory Committee on Women in the Services, 72713-72714 2015-29649 Reserve Forces Policy Board, 72712-72713 2015-29661
Economic Research Economic Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72681 2015-29666 Energy Department Energy Department See

Bonneville Power Administration

PROPOSED RULES Energy Conservation Standards for Commercial Prerinse Spray Valves: Availability of Provisional Analysis Tools, 72608-72616 2015-29676 NOTICES Environmental Impact Statements; Availability, etc.: Draft Northern Pass Transmission Line Project; Public Hearings, 72716-72717 2015-29688
Engineers Engineers Corps NOTICES Meetings: Chief of Engineers Environmental Advisory Board, 72714-72715 2015-29615 Environmental Protection Environmental Protection Agency RULES National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, 72790-72837 2015-29186 Significant New Use Rules on Certain Chemical Substances; Withdrawal, 72592-72593 2015-29596 Tolerance Actions: Amitraz, Carfentrazone-ethyl, Ethephon, Malathion, Mancozeb, et al., 72593-72599 2015-28491 PROPOSED RULES Treatment of Data Influenced by Exceptional Events, 72840-72897 2015-29350 NOTICES Environmental Impact Statements; Availability, etc.; Weekly Receipts, 72719 2015-29685 Pesticide Registration Reviews: Draft Human Health and Ecological Risk Assessments for Certain Organophosphates, 72717 2015-29690 Draft Human Health and Ecological Risk Assessments for Sulfonylureas, 72717-72719 2015-29689 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 72569-72573 2015-28895 Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Airplanes, 72565-72569 2015-28464 REIMS AVIATION S.A. Airplanes, 72563-72565 2015-29200 The Boeing Company Airplanes, 72573-72576, 72579-72581 2015-28891 2015-28897 Zodiac Aerotechnics (Formerly Intertechnique Aircraft Systems), 72576-72579 2015-28883 Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Shoulder-Belt Airbags for Side-Facing Seats, 72555-72560 2015-29625 CFM International, LEAP 1B Engine Models; Incorporation of Woven Composite Fan Blades, 72561-72563 2015-29589 Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices; Correction, 72561 2015-29624 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 72621-72624 2015-29617 Special Conditions: Gulfstream Aerospace Corporation, Gulfstream GVI Airplane; Non-Rechargeable Lithium Battery Installations, 72618-72620 2015-29626 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72720-72721 2015-29605 2015-29606 Incentive Auction Task Force Releases Revised Baseline Data and Prices for Reverse Auction; Revised Filing Window Dates, 72721-72722 2015-29792 Meetings: Communications Security, Reliability, and Interoperability Council, 72719-72720 2015-29607 Federal Election Federal Election Commission PROPOSED RULES Candidate Debates, 72616-72618 2015-29494 Federal Highway Federal Highway Administration PROPOSED RULES Environmental Impact and Related Procedures, 72624-72642 2015-29413 NOTICES Final Federal Agency Actions on Proposed Highway in Minnesota, 72779 2015-29412 Federal Railroad Federal Railroad Administration NOTICES Guidance: Inspection, Testing, and Maintenance of Emergency Window Exits on Railroad Passenger Cars, 72779-72781 2015-29641 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 72722 2015-29679 Formations of, Acquisitions by, and Mergers of Bank Holding Companies; Correction, 72722 2015-29678 Federal Transit Federal Transit Administration PROPOSED RULES Environmental Impact and Related Procedures, 72624-72642 2015-29413 Food and Drug Food and Drug Administration RULES Artificially Sweetened Fruit Jelly and Artificially Sweetened Fruit Preserves and Jams; Revocation of Standards of Identity, 72581-72585 2015-29631 Dental Devices: Reclassification of Electrical Salivary Stimulator System, 72585-72586 2015-29638 Medical Devices: Exemption from Premarket Notification; Class II Devices; Electric Positioning Chair, 72589-72591 2015-29633 Medical Devices; General Hospital and Personal Use Devices: Classification of the Ultraviolet Radiation Chamber Disinfection Device, 72587-72589 2015-29660 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Improving Food Safety and Defense Capacity of the State and Local Level—Review of State and Local Capacities, 72727-72728 2015-29663 Determinations that Products Were Not Withdrawn from Sale for Reasons of Safety or Effectiveness: LIPTRUZET (Ezetimibe and Atorvastatin) Tablets, 72728-72729 2015-29639 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for the Special Nutrition Programs Quick Response Surveys, 72681-72683 2015-29479 Foreign Claims Foreign Claims Settlement Commission NOTICES Completion of Iraq Claims Adjudication Program, 72738-72739 2015-29662 Forest Forest Service PROPOSED RULES Roadless Area Conservation; National Forest System Lands in Colorado, 72665-72669 2015-29592 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

U.S. Immigration and Customs Enforcement

Housing Housing and Urban Development Department PROPOSED RULES Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs, 72642-72649 2015-29342 NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 72731-72732 2015-29341 Interior Interior Department See

Land Management Bureau

Internal Revenue Internal Revenue Service PROPOSED RULES Relief from Joint and Several Liability, 72649-72663 2015-29609 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Corrosion-Resistant Steel Products from India, Italy, the People's Republic of China, the Republic of Korea, and Taiwan, 72685-72686 2015-29721 Export Trade Certificate of Review by United States Surimi Commission; Amended Application, 72686 2015-29645 International Trade Data System Test: Electronic Submission of Certain Documentation Required for Imports of Uranium from the Russian Federation Using the Document Imaging System, 72686-72688 2015-29722 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Air Mattress Systems, Components Thereof, and Methods of Using the Same, 72738 2015-29670 Certain Automated Teller Machines, ATM Modules, Components Thereof, and Products Containing the Same, 72735-72736 2015-29669 Trans-Pacific Partnership Agreement—Likely Impact on the U.S. Economy and on Specific Industry Sectors, 72736-72738 2015-29659 Welded Stainless Steel Pressure Pipe from India, 72735 2015-29608 Justice Department Justice Department See

Foreign Claims Settlement Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Survey—Death in Custody Reporting Program; Annual Survey of Jails; Survey of Jails in Indian Country, 72741-72744 2015-29590 Survey—Death in Custody Reporting Program—Prisons, 72740-72741 2015-29591 Proposed Consent Decrees under CERCLA, 72739-72740 2015-29578 Proposed Consent Decrees under the Clean Air Act, 72739 2015-29577
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consumer Price Index Housing Survey, 72744-72745 2015-29643 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Oil and Gas Leases in the White River National Forest, CO, 72733-72734 2015-29717 Roan Plateau Planning Area, CO; Draft Resource Management Plan Amendment, 72732-72733 2015-29716 Meetings: Alaska Resource Advisory Council, 72734-72735 2015-29699 NASA National Aeronautics and Space Administration NOTICES Privacy Act; Systems of Records, 72745-72750 2015-29630 National Institute National Institute of Standards and Technology NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72688 2015-29665 National Institute National Institutes of Health NOTICES Grants of Exclusive Licenses: Development of in Vitro Diagnostics for the Detection of Diseases or Pathogenic Agents, 72729-72730 2015-29650 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries Off West Coast States; Coastal Pelagic Species Fisheries: Multi-Year Specifications for Monitored and Prohibited Harvest Species Stock Categories, 72676-72679 2015-29684 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72708-72709 2015-29587 Takes of Marine Mammals Incidental to Specified Activities: Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts Bay, 72688-72708 2015-29642 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Social, Behavioral and Economic Sciences, 72750 2015-29647 Proposal Review, 72750 2015-29648 Meetings; Sunshine Act, 72750-72751 2015-29806 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Early Site Permit for the PSEG Site, 72751 2015-29698 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 72751-72752 2015-29766 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Practitioner Conduct and Discipline, 72709 2015-29644 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Health Benefits Election Form, 72752 2015-29584 Meetings: President's Commission on White House Fellowships Advisory Committee, 72752 2015-29585 Senior Executive Service Performance Review Board, 72752-72753 2015-29588 Postal Regulatory Postal Regulatory Commission NOTICES International Mail Contracts, 72753-72754 2015-29621 Meetings; Sunshine Act, 72754 2015-29777 Railroad Retirement Railroad Retirement Board NOTICES 2016 Railroad Experience Rating Proclamations, Monthly Compensation Base and Other Determinations, 72754-72755 2015-29656 Saint Lawrence Saint Lawrence Seaway Development Corporation NOTICES Meetings: Advisory Board, 72781-72782 2015-29667 Science Technology Science and Technology Policy Office NOTICES Meetings: U.S.-EU Communities of Research on Environmental, Health, and Safety Issues Related to Nanomaterials, 72755-72756 2015-29428 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange, LLC, 72758-72761 2015-29603 Chicago Board Options Exchange, Inc., 72761-72763 2015-29598 Financial Industry Regulatory Authority, Inc., 72775 2015-29600 Municipal Securities Rulemaking Board, 72756-72758 2015-29599 NASDAQ OMX PHLX, LLC, 72768-72775 2015-29597 2015-29602 NASDAQ Stock Market, LLC, 72763-72767 2015-29601 Social Social Security Administration NOTICES Privacy Act; Systems of Records, 72775-72777 2015-29646 State Department State Department RULES Elimination of Visa Page Insert Service for U.S. Passport Book Holders, 72591-72592 2015-29618 Surface Transportation Surface Transportation Board NOTICES Freight Easements; Abandonments: Union Pacific Railroad Co., Adams County, CO, 72782-72783 2015-29668 Lease and Operation Exemptions: Motive Rail, Inc. d/b/a Missouri North Central Railroad; Illinois Central Railroad Co., 72783 2015-29671 Susquehanna Susquehanna River Basin Commission NOTICES Projects Approved for Consumptive Uses of Water, 72777-72779 2015-29672 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

Saint Lawrence Seaway Development Corporation

See

Surface Transportation Board

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72730 2015-29582 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Direct Deposit Enrollment and International Direct Deposit Enrollment, 72787 2015-29657 Statement of Accredited Representative in Appealed Case, 72787-72788 2015-29655 VA Survey of Veteran Enrollees' Health and Use of Health Care, 72786-72787 2015-29658 Separate Parts In This Issue Part II Environmental Protection Agency, 72790-72837 2015-29186 Part III Environmental Protection Agency, 72840-72897 2015-29350 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.

80 224 Friday, November 20, 2015 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-3369; Special Conditions No. 25-606-SC] Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Shoulder-Belt Airbags for Side-Facing Seats AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Boeing Model 747-8 airplane. This airplane, as modified by Associated Air Center, will have novel or unusual design features associated with side-facing seats and airbag-equipped shoulder belts for these side-facing seats. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is November 20, 2015. We must receive your comments by January 4, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2015-3369 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

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

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jayson Claar, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2194; facsimile 425-227-1149.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On March 1, 2013, Associated Air Center applied for a supplemental type certificate, project no. AAC-12-04-ODA, for side-facing seats with airbag-equipped shoulder belts to be installed in Boeing Model 747-8 airplanes.

The Boeing Model 747-8 airplane, as modified by Associated Air Center, includes a head-of-state interior with a maximum passenger-seating capacity of 112. Twelve of the passenger-seating positions will be single-passenger, side-facing seats, each of which will be outfitted with an airbag system in the shoulder belts.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Associated Air Center must show that the Boeing Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in type certificate no. A20WE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in type certificate no. A20WE are as follows:

The certification basis for areas changed or affected by the Associated Air Center STC is 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-120, with exceptions permitted by § 21.101. The certification basis includes special conditions and exemptions that are not relevant to these proposed special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747-8 airplane, as modified by Associated Air Center, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplane, as modified by Associated Air Center, must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The Boeing Model 747-8 airplane, as modified by Associated Air Center, will incorporate the following novel or unusual design features:

These airplanes will have interior configurations with multiple-place side-facing seats and single-place side-facing seats that include airbag systems in the shoulder belts. Side-facing seats are considered a novel or unusual design for transport-category airplanes that include Amendment 25-64 in their certification basis, and were not anticipated when those airworthiness standards were issued. Therefore, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. The airbag systems in the shoulder belts on side-facing seats are designed to limit occupant forward excursion in the event of an accident. These airbag systems are novel or unusual for commercial aviation.

Discussion

The FAA has been conducting research to develop an acceptable method of compliance with § 25.785(b) for side-facing seat installations. That research has identified additional injury considerations and evaluation criteria. See published report DOT/FAA/AR-09/41, July 2011.

Before this research, the FAA had been granting exemptions for the multiple-place side-facing seat installations because an adequate method of compliance was not available to produce an equivalent level of safety to that level of safety provided for the forward- and aft-facing seats. These exemptions were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of the exemption issuance. The FAA has developed a methodology to address all fully side-facing seats (i.e., seats oriented in the airplane with the occupant facing 90 degrees to the direction of airplane travel) and is documenting those requirements in these special conditions. Some of the previous conditions issued for exemptions are still relevant and are included in these new special conditions. However, many of the conditions for exemption have been replaced by different criteria that reflect current research findings.

The FAA had been issuing special conditions to address single-place side-facing seats; however, application of the current research findings has allowed issuing special conditions that are applicable to all fully side-facing seats, both multiple-place and single-place.

Neck-injury evaluation methods applicable to the most common side-facing seat configurations were identified during recent FAA research. The scope of that research, however, did not include deriving specific injury criteria for all possible loading scenarios that could occur to occupants of fully side-facing seats. To limit the injury risk in those cases, these special conditions provide conservative injury-evaluation means that are derived from past practice and applicable scientific literature.

Serious leg injuries, such as femur fractures, can occur in aviation side-facing seats that could threaten the occupants' lives directly or reduce their ability to evacuate. Limiting upper-leg axial rotation to a conservative limit of 35 degrees (approximately the 50 percentile range of motion) should also limit the risk of serious leg injuries. It is believed that the angle of rotation can be determined by observing lower-leg flailing in typical high-speed video of the dynamic tests. This requirement complies with the intent of the § 25.562 (b)(6) injury criteria in preventing serious leg injury.

The requirement to provide support for the pelvis, upper arm, chest, and head contained in previous special conditions for single-place side-facing seats has been replaced in the new special conditions applicable to all fully side-facing seats with requirements for neck-injury evaluation, leg-flail limits, pelvis-excursion limits, head-excursion limits, and torso lateral-bending limits that directly assess the effectiveness of the support provided by the seat and restraint system.

To protect occupants in aft-facing seats, those seats must have sufficient height and stiffness to support occupants' heads and spines. Providing this support is intended to reduce spinal injuries when occupant inertial forces cause their heads and spines to load against the seat backs. If, during a side-facing-seat dynamic test, the flailing of the occupants causes their heads to translate beyond the planes of the seat backs, then this lack of support would not comply with the intent of the requirement to prevent spine injuries, and would not provide the same level of safety afforded occupants of forward- and aft-facing seats.

Results from tests that produced lateral flailing over an armrest indicate that serious injuries, including spinal fractures, would likely occur. While no criteria currently relates the amount of lateral flail to a specific risk of injury, if lateral flexion is limited to the normal static range of motion, then the risk of injury should be low. This range of motion is approximately 40 degrees from the upright position. Ensuring that lateral flexion does not create a significant injury risk is consistent with the goal of providing an equivalent level of safety to that provided by forward- or aft-facing seats, because that type of articulation of those seats does not occur during forward impacts.

Section 25.562 requires that the restraints remain on the shoulders and pelvises of the occupants during impact. Advisory Circular (AC) 25.562-1B, “Dynamic Evaluation of Seat Restraint Systems and Occupant Protection on Transport Airplanes,” dated January 10, 2006, clarifies this requirement by stating that restraints must remain on the shoulders and pelvises when loaded by the occupants. This criterion is necessary to protect the occupants from serious injuries that could be caused by lap-belt contact forces applied to soft tissue, or by ineffectively restraining the upper torsos in the event the upper-torso restraints slide off the shoulders. In forward-facing seats (the type specifically addressed in that AC), occupant motion during rebound, and any subsequent re-loading of the belts, is limited by interaction with the seat backs. However, in side-facing seats subjected to a forward impact, the restraint systems may be the only means of limiting the occupants' rearward (rebound) motion. Likewise, to limit abdominal-injury risk in side-facing seats, the lap belts must remain on the pelvis throughout the impact event, including rebound.

During side-facing-seat dynamic tests, the risk for head injury is assessed with only one occupant size (the 50th percentile male as represented by the ES-2re, as defined in 49 CFR part 572, supbart U). However, protection for a range of occupant statures can be provided if the impacted surface is homogenous in the area contactable by that range of occupants.

The FAA has issued special conditions in the past for airbag systems on lap belts for some forward-facing seats. These special conditions for the airbag systems in the shoulder belts are based on the previous special conditions for airbag systems on lap belts, with some changes to address the specific issues of side-facing seats. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is a separate finding and must consider the combined effects of all such systems installed.

The FAA has considered the installation of airbag systems in the shoulder belts to have two primary safety concerns: First, that the systems perform properly under foreseeable operating conditions, and second, that the systems do not perform in a manner or at such times as would constitute a hazard to the occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane as modified by Associated Air Center. Should the applicant apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice-and-comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes as modified by Associated Air Center.

In addition to the requirements of §§ 25.562 and 25.785, the following special condition numbers 1 and 2 are part of the type certification basis of the Boeing Model 747-8 airplane with side-facing-seat installations, as modified by Associated Air Center. For seat places equipped with airbag systems in the shoulder belts, additional special condition numbers 3 through 16 are part of the type certification basis.

1. Additional requirements applicable to tests or rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

(a) The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8) and these special conditions must have an ES-2re anthropomorphic test dummy (ATD) (49 CFR part 572, subpart U) or equivalent, or a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent occupying each seat position and including all items contactable by the occupant (e.g., armrest, interior wall, or furnishing) if those items are necessary to restrain the occupant. If included, the floor representation and contactable items must be located such that their relative position, with respect to the center of the nearest seat place, is the same at the start of the test as before floor misalignment is applied. For example, if floor misalignment rotates the centerline of the seat place nearest the contactable item 8 degrees clockwise about the airplane x-axis, then the item and floor representations must be rotated by 8 degrees clockwise also to maintain the same relative position to the seat place, as shown in Figure 1 of these special conditions. Each ATD's relative position to the seat after application of floor misalignment must be the same as before misalignment is applied. To ensure proper occupant loading of the seat, the ATD pelvis must remain supported by the seat pan, and the restraint system must remain on the pelvis and shoulder of the ATD until rebound begins. No injury-criteria evaluation is necessary for tests conducted only to assess seat-strength requirements.

ER20NO15.001

(b) The longitudinal test(s) conducted in accordance with § 25.562(b)(2), to show compliance with the injury assessments required by § 25.562(c) and these special conditions, may be conducted separately from the test(s) to show structural integrity. In this case, structural-assessment tests must be conducted as specified in paragraph 1(a) of these special conditions, and the injury-assessment test must be conducted without yaw or floor misalignment. Injury assessments may be accomplished by testing with ES-2re ATD (49 CFR part 572, subpart U) or equivalent at all places. Alternatively, these assessments may be accomplished by multiple tests that use an ES-2re at the seat place being evaluated and a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent used in all seat places forward of the one being assessed to evaluate occupant interaction. In this case, seat places aft of the one being assessed may be unoccupied. If a seat installation includes adjacent items that are contactable by the occupant, the injury potential of that contact must be assessed. To make this assessment, tests may be conducted that include the actual item located and attached in a representative fashion. Alternatively, the injury potential may be assessed by a combination of tests with items having the same geometry as the actual item but having stiffness characteristics that would create the worst case for injury (injuries due to both contact with the item and lack of support from the item).

(c) If a seat is installed aft of a structure (e.g., an interior wall or furnishing) that does not have a homogeneous surface contactable by the occupant, additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different injury considerations and may require additional analysis or separate test(s) to evaluate.

(d) To accommodate a range of occupant heights (5th percentile female to 95th percentile male), the surface of items contactable by the occupant must be homogenous 7.3 inches (185 mm) above and 7.9 inches (200 mm) below the point (center of area) that is contacted by the 50th percentile male size ATD's head during the longitudinal test(s) conducted in accordance with paragraphs 1(a), 1(b), and 1(c) of these special conditions. Otherwise, additional head-injury criteria (HIC) assessment tests may be necessary. Any surface (inflatable or otherwise) that provides support for the occupant of any seat place must provide that support in a consistent manner regardless of occupant stature. For example, if an inflatable shoulder belt is used to mitigate injury risk, then it must be demonstrated by inspection to bear against the range of occupants in a similar manner before and after inflation. Likewise, the means of limiting lower-leg flail must be demonstrated by inspection to provide protection for the range of occupants in a similar manner.

(e) For longitudinal test(s) conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:

(1) ATD positioning:

(i) Lower the ATD vertically into the seat while simultaneously (see Figure 2 of these special conditions):

ER20NO15.002

(A) Aligning the midsagittal plane (a vertical plane through the midline of the body; dividing the body into right and left halves) with approximately the middle of the seat place.

(B) Applying a horizontal x-axis direction (in the ATD coordinate system) force of about 20 pounds (lbs) (89 Newtons [N]) to the torso at approximately the intersection of the midsagittal plane and the bottom rib of the ES-2re or lower sternum of the Hybrid-II at the midsagittal plane, to compress the seat back cushion.

(C) Keeping the upper legs nearly horizontal by supporting them just behind the knees.

(ii) Once all lifting devices have been removed from the ATD:

(A) Rock it slightly to settle it in the seat.

(B) Separate the knees by about 4 inches (100 mm).

(C) Set the ES-2re's head at approximately the midpoint of the available range of z-axis rotation (to align the head and torso midsagittal planes).

(D) Position the ES-2re's arms at the joint's mechanical detent that puts them at approximately a 40-degree angle with respect to the torso. Position the Hybrid-II ATD hands on top of its upper legs.

(E) Position the feet such that the centerlines of the lower legs are approximately parallel to a lateral vertical plane (in the airplane coordinate system).

(2) ATD clothing: Clothe each ATD in form-fitting, mid-calf-length (minimum) pants and shoes (size 11E) weighing about 2.5 lb (1.1 kg) total. The color of the clothing should be in contrast to the color of the restraint system. The ES-2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition if desired.

(3) ES-2re ATD lateral instrumentation: The rib-module linear slides are directional, i.e., deflection occurs in either a positive or negative ATD y-axis direction. The modules must be installed such that the moving end of the rib module is toward the front of the airplane. The three abdominal-force sensors must be installed such that they are on the side of the ATD toward the front of the airplane.

(f) The combined horizontal/vertical test, required by § 25.562(b)(1) and these special conditions, must be conducted with a Hybrid II ATD (49 CFR part 572, subpart B, as specified in § 25.562), or equivalent, occupying each seat position.

(g) Restraint systems:

(1) If inflatable restraint systems are used, they must be active during all dynamic tests conducted to show compliance with § 25.562.

(2) The design and installation of seat-belt buckles must prevent unbuckling due to applied inertial forces or impact of the hands/arms of the occupant during an emergency landing.

2. Additional performance measures applicable to tests and rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

(a) Body-to-body contact: Contact between the head, pelvis, torso, or shoulder area of one ATD with the adjacent-seated ATD's head, pelvis, torso, or shoulder area is not allowed. Contact during rebound is allowed.

(b) Thoracic: The deflection of any of the ES-2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Data must be processed as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214.

(c) Abdominal: The sum of the measured ES-2re ATD front, middle, and rear abdominal forces must not exceed 562 lb (2,500 N). Data must be processed as defined in FMVSS 571.214.

(d) Pelvic: The pubic symphysis force measured by the ES-2re ATD must not exceed 1,350 lb (6,000 N). Data must be processed as defined in FMVSS 571.214.

(e) Leg: Axial rotation of the upper-leg (femur) must be limited to 35 degrees in either direction from the nominal seated position.

(f) Neck: As measured by the ES-2re ATD and filtered at channel frequency class (CFC) 600 as defined in SAE J211:

(1) The upper-neck tension force at the occipital condyle location must be less than 405 lb (1,800 N).

(2) The upper-neck compression force at the occipital condyle location must be less than 405 lb (1,800 N).

(3) The upper-neck bending torque about the ATD x-axis at the occipital condyle location must be less than 1,018 in-lb (115 Nm).

(4) The upper-neck resultant shear force at the occipital condyle location must be less than 186 lb (825 N).

(g) Occupant (ES-2re ATD) retention: The pelvic restraint must remain on the ES-2re ATD's pelvis during the impact and rebound phases of the test. The upper-torso restraint straps (if present) must remain on the ATD's shoulder during the impact.

(h) Occupant (ES-2re ATD) support:

(1) Pelvis excursion: The load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of its seat's bottom seat-cushion supporting structure.

(2) Upper-torso support: The lateral flexion of the ATD torso must not exceed 40 degrees from the normal upright position during the impact.

3. For seats with airbag systems in the shoulder belts, show that the airbag systems in the shoulder belts will deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th percentile male. The airbag systems in the shoulder belts must provide a consistent approach to energy absorption throughout that range of occupants. When the seat systems include airbag systems, the systems must be included in each of the certification tests as they would be installed in the airplane. In addition, the following situations must be considered:

(a) The seat occupant is holding an infant.

(b) The seat occupant is pregnant.

4. The airbag systems in the shoulder belts must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active airbag systems in the shoulder belts.

5. The design must prevent the airbag systems in the shoulder belts from being either incorrectly buckled or incorrectly installed, such that the airbag systems in the shoulder belts would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required injury protection.

6. It must be shown that the airbag systems in the shoulder belts are not susceptible to inadvertent deployment as a result of wear and tear, inertial loads resulting from in-flight or ground maneuvers (e.g., including gusts and hard landings), and other operating and environmental conditions (e.g., vibrations and moisture) likely to occur in service.

7. Deployment of the airbag systems in the shoulder belts must not introduce injury mechanisms to the seated occupants or result in injuries that could impede rapid egress. This assessment should include an occupant whose shoulder belt is loosely fastened.

8. It must be shown that inadvertent deployment of the airbag systems in the shoulder belts, during the most critical part of the flight, will either meet the requirement of § 25.1309(b) or not cause a hazard to the airplane or its occupants.

9. It must be shown that the airbag systems in the shoulder belts will not impede rapid egress of occupants 10 seconds after airbag deployment.

10. The airbag systems must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lighting, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection.

11. The airbag systems in the shoulder belts must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the airbag systems in the shoulder belts does not have to be considered.

12. It must be shown that the airbag systems in the shoulder belts will not release hazardous quantities of gas or particulate matter into the cabin.

13. The airbag systems in the shoulder-belt installations must be protected from the effects of fire such that no hazard to occupants will result.

14. A means must be available for a crew member to verify the integrity of the airbag systems in the shoulder-belt activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals. The FAA considers that the loss of the airbag-system deployment function alone (i.e., independent of the conditional event that requires the airbag-system deployment) is a major-failure condition.

15. The inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).

16. Once deployed, the airbag systems in the shoulder belts must not adversely affect the emergency-lighting system (e.g., block floor proximity lights to the extent that the lights no longer meet their intended function).

Issued in Renton, Washington, on November 12, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-29625 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-3367; Special Conditions No. 25-596-SC] Special Conditions: Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments; correction.

SUMMARY:

This document corrects an error that appeared in Docket No. FAA-2015-3367, Special Conditions No. 25-596-SC, which was published in the Federal Register on September 30, 2015 (80 FR 58597). The error is in a reference to Boeing in a note preceding a section titled, Inflatable Lap Belt Special Conditions. It is being corrected herein.

DATES:

The effective date of this correction is November 20, 2015.

FOR FURTHER INFORMATION CONTACT:

John Shelden, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.

SUPPLEMENTARY INFORMATION:

The document designated as “Docket No. FAA-2015-3367, Special Conditions No. 25-596-SC” was published in the Federal Register on September 30, 2015 (80 FR 58597). The document issued special conditions pertaining to dynamic test requirements for single-occupant, oblique (side-facing) seats with airbag devices on Boeing Model 777-200 airplanes.

As published, the document contained one error in a note that refers to Boeing rather than Flight Structures, Inc.

Because no other part of the regulatory information has been changed, the Special Conditions are not being re-published.

Correction

In the Final Special Conditions, Request for Comments document [FR Doc. 2015-24727 filed 9-29-15; 8:45 a.m.] published on September 30, 2015 (80 FR 58597), make the following correction:

On page 58599, column 3, the paragraph marked “Note:” should read:

Note:

Flight Structures, Inc., must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.

Issued in Renton, Washington, on November 11, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-29624 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 33 and 35 [Docket No. FAA-2015-4220; Special Conditions No. 33-017-SC] Special Conditions: CFM International, LEAP-1B Engine Models; Incorporation of Woven Composite Fan Blades AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the CFM International (CFM), LEAP-1B engine models. This engine model will have a novel or unusual design feature associated with the engine: woven composite fan blades. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is December 21, 2015.

We must receive your comments by December 7, 2015.

ADDRESSES:

Send comments identified by docket number FAA-2015-4220 using any of the following methods:

• Federal eRegulations Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

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

• Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays.

• Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

Docket: Background documents or comments received may be read athttp://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Alan Strom, Federal Aviation Administration Engine and Propeller Directorate, Aircraft Certification Service, ANE-112, 12 New England Executive Park, Burlington, Massachusetts, 01803-5213; telephone (781) 238-7143; fax (781) 238-7199; email [email protected]

SUPPLEMENTARY INFORMATION:

Comment History

The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment heron are unnecessary because the substance of these special conditions was subject to the public comment process in a prior instance, with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Special condition No. Company/Airplane model 33-14-02-SC CFM/LEAP-1A
  • CFM/LEAP-1C
  • Comments Invited

    We invite interested people to participate in this rulemaking by sending written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this action. Before acting on this action, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

    Background

    On May 9, 2013, CFM International (CFM) applied for a type certificate for their new LEAP-1B engine model(s). The high-bypass-ratio LEAP-1B engine models incorporate woven composite fan blades, a novel or unusual design feature. These fan blades have:

    • Significant material property characteristic differences from conventional, single-load path, metallic fan blades.

    • Multiple load path feature and/or crack arresting feature capabilities that, during blade life, may prevent delamination, crack propagation, and/or blade failure.

    Because of their novel or unusual design, these fan blades:

    • Require additional airworthiness standards for LEAP-1B engine type certification, to account for material property and failure mode differences with conventional fan blades. The applicable airworthiness regulations that exist do not contain appropriate safety standards for these new blades.

    • May allow for application of different fan blade containment requirements, if CFM demonstrates improved load path features and/or crack arresting feature capabilities of the new blade design, below the inner annulus flow path line.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, CFM must show that the LEAP-1B engine models meet the applicable provisions of the applicable regulations in effect on the date of application, except as detailed in paragraph 21.101(b) and paragraph 21.101(c).

    The FAA has determined the following certification basis for the LEAP-1B engine models: 14 CFR part 33, “Airworthiness Standards: Aircraft Engines,” dated February 1, 1965, with Amendments 33-1 through 33-33, dated September 20, 2012.

    If the FAA finds that the regulations in effect on the date of the application for the change do not provide adequate or appropriate safety standards for the LEAP-1B engine model(s) because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the engine model(s) for which they are issued. Should the type certificate for that engine model be amended later to include any other engine model(s) that incorporates the same novel or unusual design feature, the special conditions would also apply to the other engine model(s) under § 21.101.

    In addition to complying with the applicable product airworthiness regulations and special conditions, the LEAP-1B engine model(s) must comply with the fuel venting and exhaust emission requirements of 14 CFR part 34.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

    Novel or Unusual Design Features

    The LEAP-1B engine models incorporate a novel or unusual design feature: Woven composite fan blades.

    Discussion

    As discussed in the summary section, the LEAP-1B engine model(s) incorporate woven composite fan blades instead of conventional, single-load path, metallic fan blades, which is a novel or unusual design feature for aircraft engines. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.

    Applicability

    As discussed above, these special conditions are applicable to the LEAP-1B engine model(s). Should CFM apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on LEAP-1B models of engine(s). It is not a rule of general applicability and applies only to CFM, who requested FAA approval of this engine feature.

    List of Subjects in 14 CFR Parts 33 and 35

    Aircraft, Engines, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for CFM LEAP-1B engine model(s).

    Special Conditions: CFM International LEAP-1B Model Turbofan Engines

    Accordingly, the Federal Aviation Administration (FAA) issues the following special conditions as part of the type certification basis for the CFM, LEAP-1B turbofan engines.

    Part 33, Requirements. In addition to the airworthiness standards in 14 CFR part 33, effective February 1, 1965, with Amendments 33-1 through 33-33 applicable to the CFM, LEAP-1B engine models:

    (a) Conduct an engine fan blade containment test with the fan blade failing at the inner annulus flow path line instead of at the outermost retention groove.

    (b) Substantiate by test and analysis, or other methods acceptable to the FAA, that a fan disk and fan blade retention system with minimum material properties can withstand, without failure, a centrifugal load equal to two times the maximum load the retention system could experience within approved engine operating limitations. The fan blade retention system includes the portion of the fan blade from the inner annulus flow path line inward to the blade dovetail, the blade retention components, and the fan disk and fan blade attachment features.

    (c) Using a procedure approved by the FAA, establish an operating limitation that specifies the maximum allowable number of start-stop stress cycles for the fan blade retention system. The life evaluation must include the combined effects of high-cycle and low-cycle fatigue. If the operating limitation is less than 100,000 cycles, that limitation must be specified in Chapter 5 of the Engine Manual Airworthiness Limitation Section. The procedure used to establish the maximum allowable number of start-stop stress cycles for the fan blade retention system will incorporate the integrity requirements in paragraphs (c)(1), (c)(2), and (c)(3) of these special conditions for the fan blade retention system.

    (1) An engineering plan, which establishes and maintains that the combinations of loads, material properties, environmental influences, and operating conditions, including the effects of parts influencing these parameters, are well known or predictable through validated analysis, test, or service experience.

    (2) A manufacturing plan that identifies the specific manufacturing constraints necessary to consistently produce the fan blade retention system with the attributes required by the engineering plan.

    (3) A service management plan that defines in-service processes for maintenance and repair of the fan blade retention system, which will maintain attributes consistent with those required by the engineering plan.

    (d) Substantiate by test and analysis, or other methods acceptable to the FAA, that the blade design below the inner annulus flow path line provides multiple load paths and/or crack arresting features that prevent delamination or crack propagation to blade failure during the life of the blade.

    (e) Substantiate that during the service life of the engine, the total probability of an individual blade retention system failure resulting from all possible causes, as defined in § 33.75, will be extremely improbable with a cumulative calculated probability of failure of less than 10E-9 per engine flight hour.

    (f) Substantiate by test or analysis that not only will the engine continue to meet the requirements of § 33.75 following a lightning strike on the composite fan blade structure, but that the lightning strike will not cause damage to the fan blades that would prevent continued safe operation of the affected engine.

    (g) Account for the effects of in-service deterioration, manufacturing variations, minimum material properties, and environmental effects during the tests and analyses required by paragraphs (a), (b), (c), (d), (e), and (f) of these special conditions.

    (h) Propose fleet leader monitoring and field sampling programs that will monitor the effects of engine fan blade usage and fan blade retention system integrity.

    (i) Mark each fan blade legibly and permanently with a part number and a serial number.

    Issued in Burlington, Massachusetts, on October 30, 2015. Colleen D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29589 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3398; Directorate Identifier 2015-CE-031-AD; Amendment 39-18328; AD 2015-16-07 R1] RIN 2120-AA64 Airworthiness Directives; REIMS AVIATION S.A. Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for REIMS AVIATION S.A. Model F406 airplanes. This AD revises AD 2015-16-07, which required inspection of the left-hand and right-hand rudder control pedal torque tubes, and, depending on findings, replacement with a serviceable part. This AD retains the actions of AD 2015-16-07 and adds additional acceptable serviceable replacement parts. The AD was prompted by reports of detachment of the pilot's rudder control pedal in flight. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of August 18, 2015 (80 FR 49127).

    We must receive comments on this AD by January 4, 2016.

    ADDRESSES:

    You may send comments 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 ASI Aviation, Aérodrome de Reims Prunay, 51360 Prunay, FRANCE; telephone: +33 3 26 48 46 65; fax: +33 3 26 49 18 57; email: none; Internet: http://asi-aviation.fr/asi-aviation-support/1.html (requires user name and password). You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for locating Docket No. FAA-2015-3398.

    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-2015-3398; 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 (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4119; fax: (816) 329-4090; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On August 6, 2015, we issued AD 2015-16-07, Amendment 39-18232 (80 FR 49127, August 17, 2015). That AD required actions intended to address an unsafe condition on REIMS AVIATION S.A. Model F406 airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

    Since we issued AD 2015-16-07, Amendment 39-18232 (80 FR 49127, August 17, 2015), we received a comment from Hageland Aviation Services, Inc. requesting that we expand what is allowable to use as a replacement part for the rudder control pedal torque tube as defined in paragraph (f)(4) of AD 2015-16-07. The commenter requested that we include a brand new rudder control pedal that has never been installed on an airplane because it would have been inspected during manufacturing. In addition, EASA revised AD 2015-0159-E (2015-0159R1) to incorporate the above change.

    We agreed with the commenter and have revised this AD to add “a new rudder control pedal that has never been installed on an airplane” to the definition of serviceable part.

    Related Service Information Under 1 CFR Part 51

    ASI AVIATION has issued Service Bulletin No.: F406-104, dated July 28, 2015. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. The service information describes procedures for inspection of the left-hand and right-hand rudder control pedal torque tubes, and, depending on findings, replacement with a serviceable part. 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 and Requirements of the AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

    FAA's Determination of the Effective Date

    An unsafe condition exists that allows for the immediate adoption of this AD. The FAA has found there is justification to waive notice and comment prior to adoption of this rule because it only changes the definition of a serviceable part to give the option of installing a new part without inspecting it since it already has been inspected at manufacture. Therefore, we determine that notice and opportunity for public comment before issuing this AD are unnecessary.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-1123; Directorate Identifier 2014-CE-037-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 will affect 7 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

    Based on these figures, we estimate the cost of the AD on U.S. operators to be $2,975, or $425 per product.

    In addition, we estimate that any necessary follow-on actions will take about 20 work-hours and require parts costing $10,000, for a cost of $11,700 per product. We have no way of determining the number of products that may need these actions.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2015-16-07 (80 FR 49127, August 17, 2015) and adding the following new AD: 2015-16-07 R1 Reims Aviation S.A.: Amendment 39-18328; Docket No. FAA-2015-3398; Directorate Identifier 2015-CE-031-AD. (a) Effective Date

    This airworthiness directive (AD) becomes effective December 28, 2015.

    (b) Affected ADs

    This AD replaces AD 2015-16-07, Amendment 39-18232 (80 FR 49127, August 17, 2015) (“AD 2015-16-07”).

    (c) Applicability

    This AD applies to Reims Aviation S.A. Model F406 airplanes, serial numbers 0001 through 0098, certificated in any category.

    (d) Subject

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

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as detachment of the pilot's rudder control pedal in flight. We are issuing this AD to detect and correct cracking of the pilot rudder control pedal which, if not corrected, could result in detachment of the pedal with possible loss of airplane directional control.

    (f) Actions and Compliance

    Unless already done, do the actions in paragraphs (f)(1) through (f)(4) of this AD.

    (1) Before further flight after August 18, 2015 (the effective date retained from AD 2015-16-07), do a visual inspection and a dye or fluorescent penetrant inspection of the rudder control pedal torque tubes, LH (Part Number (P/N) 5115260-1) and RH (P/N 5115260-2), following the instructions of PART A of ASI AVIATION Service Bulletin No.: F406-104, dated July 28, 2015.

    (2) If no crack is detected during the inspection required by paragraph (f)(1) of this AD, within 100 hours time-in-service (TIS) after August 18, 2015 (the effective date retained from AD 2015-16-07), do a magnetic particle inspection of the rudder control pedal torque tubes, LH (P/N 5115260-1) and RH (P/N 5115260-2), following the instructions of PART B of ASI AVIATION Service Bulletin No.: F406-104, dated July 28, 2015.

    (3) If any crack is detected on a rudder control pedal torque tube during the inspection required by paragraph (f)(1) or (f)(2) of this AD, before further flight, replace the affected part with a serviceable part following the instructions of ASI AVIATION Service Bulletin No.: F406-104, dated July 28, 2015.

    (4) For the purpose of this AD, a serviceable part is:

    (i) A rudder control pedal torque tube (LH P/N 5115260-1 or RH P/N 5115260-2) that has had a magnetic particle inspection following the instructions of PART B of ASI AVIATION Service Bulletin No.: F406-104, dated July 28, 2015, and no cracks were found; or

    (ii) A new rudder control pedal torque tube (LH P/N 5115260-1 or RH P/N 5115260-2) that has never been installed on an airplane.

    (5) You may install a rudder control pedal torque tube P/N 5115260-1 (LH) or P/N 5115260-2 (RH) on an airplane, provided it is a serviceable part.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4119; fax: (816) 329-4090; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

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

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

    (h) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2015-0159-E, dated July 31, 2015, and EASA AD No.: 2015-0159R1, dated August 24, 2015, for related information. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3398.

    (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.

    (3) The following service information was approved for IBR on August 18, 2015 (80 FR 49127).

    (i) ASI AVIATION Service Bulletin No.: F406-104, dated July 28, 2015.

    (ii) Reserved.

    (4) For service information identified in this AD, contact ASI Aviation, Aérodrome de Reims Prunay, 51360 Prunay, FRANCE; telephone: +33 3 26 48 46 65; fax: +33 3 26 49 18 57; email: none; Internet: http://asi-aviation.fr/asi-aviation-support/1.html (requires user name and password).

    (5) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for locating Docket No. FAA-2015-3398.

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

    Issued in Kansas City, Missouri, on November 6, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29200 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0427; Directorate Identifier 2013-NM-218-AD; Amendment 39-18316; AD 2015-22-11] RIN 2120-AA64 Airworthiness Directives; Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2011-09-04 for all Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 382, 382B, 382E, 382F, and 382G airplanes. AD 2011-09-04 required repetitive inspections for damage to the lower surface of the center wing box (CWB), and corrective actions if necessary. This new AD adds related investigative actions, and corrective actions if necessary. This AD was prompted by an evaluation by the design approval holder (DAH) that indicated that the CWB is subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct fatigue cracking of the lower surface of the CWB, which could result in structural failure of the wings.

    DATES:

    This AD is effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of June 22, 2011 (76 FR 28626, May 18, 2011).

    ADDRESSES:

    For service information identified in this AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P-58, 86 S. Cobb Drive, Marietta, GA 30063; telephone 770-494-5444; fax 770-494-5445; email [email protected]; Internet http://www.lockheedmartin.com/ams/tools/TechPubs.html. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0427.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.govby searching for and locating Docket No. FAA-2014-0427; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; telephone 404-474-5554; fax 404-474-5605; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011). AD 2011-09-04 applied to all Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 382, 382B, 382E, 382F, and 382G airplanes. The NPRM published in the Federal Register on July 1, 2014 (79 FR 37248). The NPRM was prompted by an evaluation by the DAH that indicated that the CWB is subject to WFD. The NPRM proposed to continue to require repetitive inspections for any damage of the lower surface of the CWB, and corrective actions if necessary. The NPRM also proposed to require replacement of the CWB, and to add, for the repetitive inspections, concurrent related investigative actions, and corrective actions if necessary. We are issuing this AD to detect and correct fatigue cracking of the lower surface of the CWB, which could result in structural failure of the wings.

    Actions Since Issuance of the NPRM (79 FR 37248, July 1, 2014)

    The CWB replacement, proposed in the NPRM (79 FR 37248, July 1, 2014), has been removed from this final rule, and is instead required by AD 2015-18-02, Amendment 39-18260 (80 FR 52941, September 2, 2015). We determined that the proposed compliance time for the CWB replacement would not adequately address the unsafe condition, because the risk of undetected WFD rises rapidly for CWBs that have accumulated 50,000 total flight hours. Therefore, for airplanes over the 50,000-flight-hour threshold, AD 2015-18-02 provides a shorter grace period than that proposed in the NPRM. In this AD, we have removed paragraph (k) of the proposed AD and Note 1 to paragraph (k) of the proposed AD, and redesignated subsequent paragraphs accordingly.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments to the NPRM (79 FR 37248, July 1, 2014) related to the proposed inspection requirements, and the FAA's response to those comments. Since this AD does not include the CWB replacement proposed in paragraph (k) of the NPRM, this AD does not address comments regarding the CWB replacement. Those comments are addressed in AD 2015-18-02, Amendment 39-18260 (80 FR 52941, September 2, 2015).

    Support for the NPRM (79 FR 37248, July 1, 2014)

    Lynden Air Cargo (Lynden) stated that it concurs that the proposed inspections are beneficial and enhance safety.

    Request To Revise Proposed Applicability

    Lynden questioned whether the FAA considered the safety risk factor for “restricted category type certificated Model C-130A through H airplanes” and whether those airplanes should be included in the applicability.

    We did consider the safety risk factor for those airplanes. The FAA issued restricted-category type certificates only for Model C-130A and C-130B airplanes, and these are low-usage airplanes. The wings on Model C-130A airplanes are different from those of other models; the CWBs have previously been replaced on all Model C-130A airplanes. There are no civil registered Model C-130B airplanes in service. We might consider further rulemaking for Model C-130 airplanes. We have not changed this AD regarding this issue.

    Request To Revise Repair Approval Procedures

    Safair requested that we revise the NPRM (79 FR 37248, July 1, 2014) to authorize the DAH or designated engineering representative (DER) to develop and approve repairs under international operator support agreements with the state-of-registration civil authorities.

    We agree with the commenter's request. We have revised paragraphs (h), (i)(1)(ii), (j), and (k)(1) of this AD to require that certain repairs, alternative compliance times, and inspection methods be approved in accordance with the procedures specified in paragraph (m) of this AD, which allows DER approval for repairs as specified in new paragraph (m)(3) of this AD.

    Request To Require a Report of Inspection Findings

    Noting that the NPRM (79 FR 37248, July 1, 2014) would not require inspection reports, Safair suggested that Lockheed build a database of inspection findings. The commenter asserted that the data would not be collected unless mandated.

    It is not necessary to require operators to report inspection findings, as the Atlanta Aircraft Certification Office (ACO) already maintains a database for tracking repairs. The database includes repair reports from the U.S. as well as DER reports for airplanes outside of the U.S. We have not changed this AD in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (79 FR 37248, July 1, 2014) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 37248, July 1, 2014).

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007. The service information describes procedures for inspecting the lower surface of the CWB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 15 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 [retained action from AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011)] 2,000 work-hours × $85 per hour = $170,000 per inspection cycle N/A $170,000 per inspection cycle $2,550,000 per inspection cycle.

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

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

    On-Condition Costs Action Labor cost Parts cost Cost per product Repair [retained from AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011)] 1,000 to 3,000 work-hours × $85 per hour = $85,000 to $255,000 $30,000 $115,000 to $285,000. Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), and adding the following new AD: 2015-22-11 Lockheed Martin Corporation/Lockheed Martin Aeronautics Company: Amendment 39-18316; Docket No. FAA-2014-0427; Directorate Identifier 2013-NM-218-AD. (a) Effective Date

    This AD is effective December 28, 2015.

    (b) Affected ADs

    This AD replaces AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011).

    (c) Applicability

    This AD applies to all Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 382, 382B, 382E, 382F, and 382G airplanes, certificated in any category.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) that indicated the center wing box (CWB) is subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct fatigue cracking of the lower surface of the CWB, which could result in structural failure of the wings.

    (f) Compliance

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

    (g) Retained Inspection, With Revised Service Information

    This paragraph restates the actions required by paragraph (g) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), with revised service information. At the time specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, whichever occurs latest: Do a nondestructive inspection of the lower surface of the CWB for any damage, in accordance with Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007; or Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007. Repeat the inspections thereafter at intervals not to exceed 10,000 flight hours. As of the effective date of this AD, use only Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, for the actions required by this paragraph.

    (1) Prior to the accumulation of 40,000 total flight hours on the center wing.

    (2) Within 365 days after June 22, 2011 (the effective date of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011)).

    (3) Within 10,000 flight hours on the CWB after the accomplishment of the inspection specified in paragraph (g) of this AD, if done before June 22, 2011 (the effective date of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011)).

    (h) Retained Corrective Action, With Revised Repair Instructions

    This paragraph restates the actions required by paragraph (h) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), with revised repair instructions. If any damage is found before the effective date of this AD during any inspection required by paragraph (g) of this AD: Before further flight, repair any damage, using a method approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA. If any damage is found as of the effective date of this AD, during any inspection required by paragraph (g) of this AD: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (i) Retained Exceptions to Service Information Specifications, With Revised Repair Instructions

    (1) This paragraph restates the exception specified in paragraph (i) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), with revised repair instructions. Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, specifies that operators may adjust thresholds and intervals, use alternative repetitive inspection intervals, and use alternative inspection methods, if applicable. However, this AD requires the applicable approval specified in paragraph (i)(1)(i) or (i)(1)(ii) of this AD.

    (i) Before the effective date of this AD: This AD requires that any alternative methods or intervals be approved by the Manager, Atlanta ACO. For any alternative methods or intervals to be approved by the Manager, Atlanta ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.

    (ii) As of the effective date of this AD, this AD requires that any alternative methods or intervals be approved in accordance with the procedures specified in paragraph (m) of this AD.

    (2) This paragraph restates the exception stated in paragraph (j) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), with no changes. Where Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, specifies that alternative repetitive inspection intervals may be used for cold-worked holes, this AD does not allow the longer interval. This AD requires that all cold-worked and non-cold-worked holes be reinspected at 10,000-flight-hour intervals.

    (3) This paragraph restates the exception stated in paragraph (k) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011), with no changes. Where Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, describes procedures for submitting a report of any damages, this AD does not require such action.

    (j) New Inspection and Corrective Actions

    As of the effective date of this AD, concurrently with accomplishing the inspection required by paragraph (g) of this AD: Do all applicable related investigative actions, in accordance with Appendix A, Revision 3, dated July 8, 2013, of Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007. If any cracking or damage is found during any related investigative action: Before further flight, repair all cracking and damage, using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (k) New Exceptions to Service Information Specifications

    (1) Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, specifies that operators may adjust thresholds and intervals, use alternative repetitive inspection intervals, and use alternative inspection methods. However, this AD requires that any alternative thresholds, intervals, or inspection methods be approved in accordance with the procedures specified in paragraph (m) of this AD.

    (2) Where Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007, describes procedures for submitting a report of any damages, this AD does not require such action.

    (l) Credit for Previous Actions

    (1) This paragraph restates the credit provided in paragraph (l) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011). This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before June 22, 2011 (the effective date of AD 2011-09-04), using Lockheed Service Bulletin 382-57-85 (82-790), Revision 1, dated March 8, 2007, which is not incorporated by reference in this AD.

    (2) This paragraph restates the credit provided in paragraph (m) of AD 2011-09-04, Amendment 39-16666 (76 FR 28626, May 18, 2011). This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before June 22, 2011 (the effective date of AD 2011-09-04), using Lockheed Service Bulletin 382-57-85 (82-790), dated August 4, 2005, which is not incorporated by reference in this AD.

    (m) Alternative Methods of Compliance (AMOCs)

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

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

    (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 a Delegated Engineering Representative (DER) for the Lockheed Martin Aeronautics Company who has been authorized by the Manager, Atlanta ACO, to make those findings. For a repair method to be approved, the repair approval must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (n) Related Information

    (1) For more information about this AD, contact Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; telephone 404-474-5554; fax 404-474-5605; email: [email protected]

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(5) and (o)(6) of this AD.

    (o) 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 December 28, 2015.

    (i) Lockheed Service Bulletin 382-57-85 (82-790), Revision 3, dated July 8, 2013, including Appendix A, Revision 3, dated July 8, 2013, and Appendixes B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007.

    (ii) Reserved.

    (4) The following service information was approved for IBR on June 22, 2011 (76 FR 28626, May 18, 2011).

    (i) Lockheed Service Bulletin 382-57-85 (82-790), Revision 2, dated August 23, 2007, including Appendixes A, B, C, D, E, F, and G, all Revision 1, all dated March 8, 2007.

    (ii) Reserved.

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

    (6) 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.

    (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 29, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28464 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-1043; Directorate Identifier 2013-NM-079-AD; Amendment 39-18321; AD 2015-23-05] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and Model A340-200 and A340-300 series airplanes. This AD was prompted by reports of cracked support strut body ends at a certain frame location of the trimmable horizontal stabilizer (THS). This AD requires repetitive inspections for cracking of the strut ends of the THS support located at a certain frame in the tail cone, and replacement if necessary; and reinstallation or installation of reinforcing clamps on certain strut ends. We are issuing this AD to detect and correct cracked support strut body ends of the THS, which could lead to the loss of all four THS support struts, making the remaining structure unable to carry limit loads, resulting in the loss of the horizontal tail plane.

    DATES:

    This AD becomes effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 28, 2015.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-1043 or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

    For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-1043.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and Model A340-200 and A340-300 series airplanes. The NPRM published in the Federal Register on January 23, 2015 (80 FR 3510). The NPRM was prompted by reports of cracked support strut body ends at a certain frame location of the THS. The NPRM proposed to require repetitive inspections for cracking of the strut ends of the THS support located at a certain frame in the tail cone, and replacement if necessary; and reinstallation or installation of reinforcing clamps on certain strut ends. We are issuing this AD to detect and correct cracked support strut body ends of the THS, which could lead to the loss of all four THS support struts, making the remaining structure unable to carry limit loads, resulting in the loss of the horizontal tail plane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0068, dated March 18, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and Model A340-200 and A340-300 series airplanes. The MCAI states:

    During scheduled maintenance on A330 aeroplanes, several Trimmable Horizontal Stabilizer (THS) support struts at frame (FR) 91 were found cracked at strut body ends.

    The THS is supported and articulated at FR 91 by four struts to fix the hinges (Y-bolts) and keep the structural integrity in lateral direction.

    Analysis revealed that cracks can reduce ability of the support struts to carry specified tension loads.

    This condition, if not detected and corrected, could lead to the loss of all four THS support struts at FR91, which would make the remaining structure unable to carry limit loads, resulting in the loss of Horizontal Tail Plane.

    A340-500/600 aeroplanes are not affected by this [EASA] AD as different material is used on THS support struts.

    To address this potentially unsafe condition, EASA issued AD 2013-0076 [http://ad.easa.europa.eu/blob/easa_ad_2013_0076_superseded.pdf/AD_2013-0076_1] to require repetitive special detailed inspections [high frequency eddy current (HFEC) inspections for cracking] of all 8 strut ends of the THS support located at FR91 in the tail cone and, depending on findings, replacement of THS support struts. That [EASA] AD also required, for aeroplanes on which Airbus Modification 203493 had not been embodied in production, or Airbus Service Bulletin (SB) A330-53-3204 or SB A340-53-4199, as applicable, has not been embodied in service, the installation of a clamping device on each support strut end to stop growth of possible cracks (crack stopper function) in order to secure integrity of the struts.

    Since issuance of EASA AD 2013-0076 [http://ad.easa.europa.eu/blob/easa_ad_2013_0076_superseded.pdf/AD_2013-0076_1], it has been discovered that several aeroplanes are fitted with another strut configuration (SARMA Strut) [Societé Anonyme de Recherche Mécanique Appliquée] than the TAC (Technical Airborne Components Industries) strut, which caused the other strut not to be considered. Consequently, Airbus revised Airbus SB A330-53-3206 and SB A340-53-4208, accordingly in order to add a one-time [HFEC] inspection [for cracking] for SARMA struts and in case of finding to replace it with a TAC strut and thereafter to accomplish repetitive inspections and EASA issued AD 2013-0219 [http://ad.easa.europa.eu/blob/easa_ad_2013_0219_superseded.pdf/AD_2013-0219_1], which is superseded, and required accomplishment of the instructions as specified in the latest revision of each SB, as applicable.

    Since issuance of EASA AD 2013-0219 [http://ad.easa.europa.eu/blob/easa_ad_2013_0219_superseded.pdf/AD_2013-0219_1], based on the reporting received from operators, it has been determined that repetitive inspections are also to be accomplished for aeroplanes equipped with SARMA strut. Airbus introduced that inspection in the applicable SB at revision 3.

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2013-0219, which is superseded, and requires accomplishment of repetitive [HFEC] inspective inspection [for cracking] for aeroplanes equipped with SARMA strut.

    This [EASA] AD is considered as an interim action, pending the development of a terminating action.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-1043-0002.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 3510, January 23, 2015) and the FAA's response to each comment.

    Request To Add Inspection for Identifying Struts

    Delta Air Lines, Inc. (DAL) requested that we add a physical inspection to paragraph (g) of the proposed AD (80 FR 3510, January 23, 2015) to distinguish a Societé Anonyme de Recherche Mécanique Appliquée (SARMA) strut from a Technical Airborne Components Industries (TAC) strut. DAL stated that paragraph (g) of the proposed AD only identifies the dimensional diameter of SARMA struts; however, DAL stated that both TAC and SARMA struts have the same manufacturer part numbers but have different rod end diameters. DAL suggested language for doing a physical inspection of the strut end of each support strut for identification purposes.

    We agree that a physical inspection is necessary to determine the rod end diameter in order to distinguish between SARMA and TAC struts. However, that inspection is optional. Paragraph (g) of this AD defines SARMA struts as having a diameter that is less than 43 millimeters, and states that all other struts are TAC struts. Paragraph (h) of this AD requires inspecting TAC struts. Thus, operators must inspect all struts unless the strut is inspected to determine the diameter is less than 43 millimeters, i.e., it is a SARMA strut. We have not changed this AD in this regard.

    Request To Include Airbus Modification 203834 for Installing Reinforced Clamps

    DAL requested that we revise paragraph (h) of the proposed AD (80 FR 3510, January 23, 2015) to include Airbus Modification 203834 as an optional modification for installation of the reinforced clamps. DAL stated that Airbus has confirmed that Airbus Modification 203834 installs the same reinforced clamps as Airbus Modification 203493 specified in paragraph (h) of the proposed AD.

    We agree with the commenter's request. The FAA has approved two Airbus modifications for installing the reinforced clamps into production airplanes: Modification 203493 for airplanes having manufacturer serial number (MSN) 1466 to 1509 inclusive, and Modification 203834 for airplanes having MSN 1510 and on. Modification 203834 supersedes Modification 203493, and the first airplane delivered with Modification 203834 installed was MSN 1511.

    Thus, operators may have the two populations of airplanes: Those with Modification 203834 and those with Modification 203493. This AD must address both groups of airplanes accordingly. We have revised paragraph (h) of this AD to specify that, for airplanes on which Airbus Modification 203493 or 203834 has been embodied in production; or on which Airbus Service Bulletin A330-53-3204 or Airbus Service Bulletin A340 53-4199, as applicable; has been embodied in service, remove the clamp from each strut end before accomplishing the inspections required by paragraph (h) of this AD.

    Request To Include Additional Service Information

    DAL requested that we revise paragraphs (j)(1), (j)(2), and (l) of the proposed AD (80 FR 3510, January 23, 2015) to include Airbus Service Bulletin A330-53-3204. DAL stated that, when clamps were not previously installed, Airbus Service Bulletin A330-53-3204 becomes the source document for installing the clamps.

    We agree that Airbus Service Bulletin A330-53-3204, Revision 03, dated February 28, 2014, is an appropriate source of service information for installing clamps. However, we do not agree to revise this AD because that service information is already referenced in Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014, which is referred to as one of the appropriate sources of service information for the actions required by paragraphs (j)(1), (j)(2), and (l) of this AD. As specified in the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014., “if no clamps were previously installed, accomplish Service Bulletin A330-53-3204 before next flight, to install them.” Therefore, no change to this AD is necessary in this regard.

    Request To Clarify Flight With Cracking

    DAL requested that we clarify/confirm that the NPRM (80 FR 3510, January 23, 2015) will apply more strict replacement criteria when cracks are found than what is currently published in Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014. DAL stated that Subtask 533206-280-201-001 of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014, contains instructions to allow continued operation of the airplane with small crack findings without immediate strut replacement.

    We agree. In the “Differences Between this Proposed AD and the MCAI or Service Information” section of the NPRM (80 FR 3510, January 23, 2015), we stated that “Although EASA Airworthiness Directive 2014-0068, dated March 18, 2014, Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014, and Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014, allow further flight after certain cracks are found during compliance with the proposed action, paragraph (j)(2) of this AD would require that any cracked THS support strut be replaced with a new or serviceable TAC strut before further flight.” No change to this AD is necessary in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (80 FR 3510, January 23, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 3510, January 23, 2015).

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

    Interim Action

    We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.

    Related Service Information Under 1 CFR Part 51

    We reviewed the following service information.

    • Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014. This service information describes procedures for inspections for cracking of the strut ends of the THS support located in the airplane tail cone.

    • Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014. This service information describes procedures for inspections for cracking of the strut ends of the THS support located in the airplane tail cone.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 84 airplanes of U.S. registry.

    We also estimate that it will take about 9 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $64,260, or $765 per product.

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

    We estimate that any necessary follow-on strut reinforcements will take about 2 work-hours and require parts costing $5,680, for a cost of $5,850 per product. We have no way of determining the number of aircraft that might need this action.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-1043; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-23-05 Airbus: Amendment 39-18321. Docket No. FAA-2014-1043; Directorate Identifier 2013-NM-079-AD. (a) Effective Date

    This AD becomes effective December 28, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Airbus Model A330-201, -202, -203, -223, -223F, -243, and -243F airplanes.

    (2) Airbus Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.

    (3) Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by reports of cracked support strut body ends at a certain frame location of the trimmable horizontal stabilizer (THS). We are issuing this AD to detect and correct cracked support strut body ends of the THS, which could lead to the loss of all four THS support struts and which would make the remaining structure unable to carry limit loads, resulting in the loss of the horizontal tail plane.

    (f) Compliance

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

    (g) Definition of Strut Types

    For the purpose of this AD, a Societé Anonyme de Recherche Mécanique Appliquée (SARMA) strut is a strut on which the diameter of the strut end is less than 43 millimeters. All other struts are Technical Airborne Components Industries (TAC) struts.

    (h) Repetitive Inspections of TAC Strut Ends

    At the applicable time specified in paragraph (i) of this AD, do a high frequency eddy current (HFEC) inspection for cracking of all TAC strut ends of the THS support located at frame (FR) 91 in the tail cone, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; or Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; as applicable. Repeat the inspection thereafter at intervals not to exceed 42 months or 20,000 flight hours, whichever occurs first. For airplanes on which Airbus Modification 203493 or 203834 has been embodied in production, or Airbus Service Bulletin A330-53-3204 or Airbus Service Bulletin A340-53-4199, as applicable, has been embodied in service, remove the clamp from each strut end before accomplishing the inspections required by this paragraph.

    (i) Compliance Times for the Actions Required by Paragraphs (h) and (k) of This AD

    Do the inspections required by paragraphs (h) and (k) of this AD at the applicable times specified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD.

    (1) For Model A330 series airplanes having manufacturer serial numbers 012 through 209 inclusive, and Model A340 series airplanes having manufacturer serial numbers 002 through 210 inclusive: Within 6 months after the effective date of this AD.

    (2) For Model A330 series airplanes having manufacturer serial numbers 211 through 422 inclusive, and Model A340 series airplanes having manufacturer serial numbers 212 through 447 inclusive: Within 24 months after the effective date of this AD.

    (3) For Model A330 series airplanes having manufacturer serial numbers 423 and subsequent, and Model A340 series airplanes having manufacturer serial numbers 450 through 955 inclusive: Within 36 months after the effective date of this AD or since the first flight of the airplane, whichever occurs later.

    (j) Corrective Action for TAC Strut Ends and Installation of Reinforcing Clamps

    (1) If, during any inspection required by paragraph (h) of this AD, no cracks are found: Before further flight, reinstall or install, as applicable, reinforcing clamps on the strut ends, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; or Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; as applicable.

    (2) If, during any inspection required by paragraph (h) of this AD, any crack is found: Before further flight, replace any affected strut with a new or serviceable TAC strut and install reinforcing clamps on the strut end, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; or Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; as applicable.

    (k) Repetitive Inspections of SARMA Strut Ends

    At the applicable time specified in paragraph (i) of this AD, do an HFEC inspection for cracking of all SARMA strut ends of the THS support located at FR 91 in the tail cone, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; or Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; as applicable. Repeat the inspection thereafter at intervals not to exceed 12 months.

    (l) Corrective Action for SARMA Strut Ends

    If any crack is found on a strut end during the inspection required by paragraph (k) of this AD: Before further flight, replace any affected SARMA strut with a new or serviceable TAC strut and install reinforcing clamps on the strut end, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; or Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; as applicable.

    (m) No Terminating Action

    Replacement of THS struts on an airplane does not constitute terminating action for the repetitive inspections required by this AD.

    (n) No Reporting

    Although Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014; and Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014; specify to submit certain information to the manufacturer, this AD does not include that requirement.

    (o) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g), (h), (j), and (k) of this AD, if those actions were performed before the effective date of this AD using any of the service information identified in paragraphs (n)(1) through (n)(6) of this AD. This service information is not incorporated by reference in this AD.

    (1) Airbus Service Bulletin A330-53-3206, dated February 7, 2013.

    (2) Airbus Service Bulletin A330-53-3206, Revision 01, dated June 10, 2013.

    (3) Airbus Service Bulletin A330-53-3206, Revision 02, dated August 8, 2013.

    (4) Airbus Service Bulletin A340-53-4208, dated February 7, 2013.

    (5) Airbus Service Bulletin A340-53-4208, Revision 01, dated June 10, 2013.

    (6) Airbus Service Bulletin A340-53-4208, Revision 02, dated August 8, 2013.

    (p) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (q) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0068, dated March 18, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-1043-0002.

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

    (r) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A330-53-3206, Revision 03, dated February 28, 2014.

    (ii) Airbus Service Bulletin A340-53-4208, Revision 03, dated February 28, 2014.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

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

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

    Issued in Renton, Washington, on October 30, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28895 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-1266; Directorate Identifier 2014-NM-151-AD; Amendment 39-18327; AD 2015-23-11] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SR, and 747SP series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that certain fuselage skin lap joints are subject to widespread fatigue damage (WFD). This AD requires repetitive post-modification inspections for cracking of the skin or internal doubler along the edge fastener rows of the modification, and repair if necessary. We are issuing this AD to detect and correct fatigue cracking in certain fuselage skin lap joints, which could result in rapid depressurization of the airplane.

    DATES:

    This AD is effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 28, 2015.

    ADDRESSES:

    For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-1266.

    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-2015-1266; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on May 5, 2015 (80 FR 25630). The NPRM was prompted by an evaluation by the DAH indicating that certain fuselage skin lap joints are subject to WFD. The NPRM proposed to require repetitive post-modification inspections for cracking of the skin or internal doubler along the edge fastener rows of the modification, and repair if necessary. We are issuing this AD to detect and correct fatigue cracking in certain fuselage skin lap joints, which could result in rapid depressurization of the airplane.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 25630, May 5, 2015) and the FAA's response to each comment.

    Request To Remove Warranty Statement

    Boeing requested that we remove the statement that “some of the costs of this proposed AD may be covered under warranty” in the Costs of Compliance section of the NPRM (80 FR 25630, May 5, 2015). Boeing stated that the actions in the NPRM are not covered by warranty.

    We agree with the commenter's request. We have revised the Costs of Compliance section of this final rule accordingly.

    Request To Revise Paragraph Headings

    Boeing requested that we revise the headings of paragraphs (g), (h), (j), and (k) of the proposed AD (80 FR 25630, May 5, 2015) by removing reference to the inspections as “repetitive” or “initial.” Boeing stated that these revisions will provide consistency among paragraph headings because paragraphs (g), (j), and (k) of the proposed AD do not have an initial inspection program, yet paragraph (h) of the proposed AD has only an initial inspection.

    We acknowledge the commenter's concern and agree to clarify the headings. We do not presume that the term “repetitive” necessarily excludes the initial action. An action cannot be repeated without accomplishment of the initial action. In addition, in many ADs we use the term “repetitive” actions for paragraphs that include the initial action and repetitive actions. Paragraphs (g), (j), and (k) of this AD include both a sentence specifying the initial inspection and a sentence specifying the repetitive inspections. We have not changed this AD in this regard.

    Request To Clarify Compliance Time

    Boeing requested that we clarify the compliance time in paragraphs (g), (h), (j), and (k) of the proposed AD (80 FR 25630, May 5, 2015) by revising “at the applicable time” to “at the applicable time and repeat intervals.” Boeing stated that these revisions would clarify that the applicable time also includes the repeat intervals per Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    We do not agree to combine the initial inspection and the repetitive inspection times into one statement because ADs typically call out initial inspections and repetitive inspections in separate sentences. Paragraph (h) of this AD specifies only an initial inspection. Paragraphs (g), (j), and (k) of this AD specifies an initial inspection and states that the repetitive inspections are for the unrepaired areas, which are to be done at the applicable times specified in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. We have not changed this AD in this regard.

    Request To Delete the Unrepaired Area Statement From Paragraphs (g) (j) and (k) of the Proposed AD (80 FR 25630, May 5, 2015)

    Boeing requested that we delete the last sentence in paragraphs (g), (j), and (k) of the proposed AD (80 FR 25630, May 5, 2015), which states “In unrepaired areas, repeat the . . . inspections for cracks . . . .” Boeing stated that the sentence is confusing as the unrepaired area case is actually for no cracks found in the modification area after doing the inspection as specified in the applicable tables 3, 5, and 6 of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. Boeing explained that the proposed AD wording may cause confusion when information is provided in a different format than the service bulletin tables.

    We do not agree with the commenter's request because the text “in unrepaired areas” matches the text in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. Paragraphs (g), (j), and (k) of this AD specify doing actions at the applicable time specified in tables 3, 5, and 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In these tables, the compliance time is specified for the actions required for the unrepaired area. We have not revised this AD in this regard.

    Request To Combine Paragraphs

    Boeing requested that we combine paragraphs (h) and (i) of the proposed AD (80 FR 25630, May 5, 2015) by deleting paragraph (i) of the proposed AD and revising paragraph (h) of the proposed AD from “at the applicable time” to “at the applicable time and repeat intervals.” Boeing explained that it is confusing to have separate paragraphs address initial and repetitive inspections for a particular aircraft as both initial and repetitive inspections are addressed within table 4 of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    We acknowledge that table 4 of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, contains compliance times for both initial and repetitive inspections. However, we do not agree with the commenter's request because the AD includes separate paragraphs in order to clarify the repetitive inspection intervals. For the initial inspections, table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, specifies two crack conditions, which are based on the number of fight cycles on the airplane since stringer 6 external doublers were installed. To aid the operators in determining which repetitive inspection(s) they are required to do, this AD provides the repetitive inspections (as restated from the NPRM (80 FR 25630, May 5, 2015)), depending on the applicable condition, in separate repetitive inspection paragraphs (paragraphs (i)(1) and (i)(2) of this AD). We have not changed this AD in this regard.

    Request To Revise External Inspection Wording

    Boeing requested that we remove the word “external” from paragraph (h) of the proposed AD (80 FR 25630, May 5, 2015), which specified “external detailed, low frequency eddy current, and high frequency eddy current inspections.” Boeing explained that if paragraphs (h) and (i) of the proposed AD are combined, both external and internal detailed inspections are required. Boeing stated that removing “external” from the inspection direction would therefore cover all airplane conditions.

    As stated previously, we do not agree to combine paragraphs (h) and (i) of this AD into one paragraph. Therefore, the terminology in paragraph (h) of this AD matches Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, which specifies doing external detailed, low frequency eddy current (LFEC), and high frequency eddy current (HFEC) inspections for cracks. We have not changed this AD in this regard.

    Request To Revise Headings of Paragraphs (h), (i), and (j) of the Proposed AD (80 FR 25630, May 5, 2015)

    Boeing requested that we revise the headings of paragraphs (h), (i), and (j) of the proposed AD (80 FR 25630, May 5, 2015) by adding a reference to the applicable service information. Boeing stated that these changes will add consistency among paragraphs (h), (i), and (j) of the proposed AD in identifying an installed external doubler modification.

    We agree with the commenter's request. We have revised the headings of paragraphs (h), (i), and (j) of this AD accordingly.

    Request To Correct Typographical Error

    Boeing noted that a phrase describing the major action in paragraph (j) of the proposed AD (80 FR 25630, May 5, 2015) was duplicated and asked that we correct this.

    We agree with the commenter's request. We have revised paragraph (j) of this AD accordingly.

    Conclusion

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

    • Αre consistent with the intent that was proposed in the NPRM (80 FR 25630, May 5, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 25630, May 5, 2015).

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. This service information describes procedures for inspections and repair for cracks in the skin and doublers along the edge fastener rows of modifications in the fuselage. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 50 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
  • Post-modification inspection 124 work-hours × $85 per hour = $10,540 per inspection cycle $0 $10,540 per inspection cycle $527,000 per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-23-11 The Boeing Company: Amendment 39-18327; Docket No. FAA-2015-1266; Directorate Identifier 2014-NM-151-AD. (a) Effective Date

    This AD is effective December 28, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that certain fuselage skin lap joints are subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking in certain fuselage skin lap joints, which could result in rapid depressurization of the airplane.

    (f) Compliance

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

    (g) Repetitive Post-Modification Inspections for Airplane Groups 1 Through 3, 7, and 8

    For airplanes identified as Groups 1 through 3, 7, and 8 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface high frequency eddy current (HFEC) inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (h) Initial Post-Modification Inspections for Airplane Groups 4 Through 6, and 9 Through 11, With External Doublers Installed as Specified in Boeing Service Bulletin 747-53-2272

    For airplanes identified as Groups 4 through 6, and 9 through 11, in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, with external doublers installed as specified in Boeing Service Bulletin 747-53-2272: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do external detailed, low frequency eddy current (LFEC), and HFEC inspections for cracks in the skin and external doubler, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (i) Repetitive Post-Modification Inspections for Airplane Groups 4 Through 6, and 9 Through 11 With External Doublers Installed as Specified in Boeing Service Bulletin 747-53-2272

    For airplanes with no crack findings during the inspections required by paragraph (h) of this AD: Do the applicable actions required by paragraphs (i)(1) and (i)(2) of this AD.

    (1) For airplanes with less than 15,000 flight cycles since stringer 6 external doublers were installed, as specified in Boeing Service Bulletin 747-53-2272: At the applicable intervals specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, in unrepaired areas, repeat the external detailed and LFEC inspections for cracks in the skin, and the external detailed and HFEC inspections for cracks in the external doubler, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (2) For airplanes with 15,000 or more flight cycles since the stringer 6 external doublers were installed, as specified in Boeing Service Bulletin 747-53-2272: At the applicable intervals specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, in unrepaired areas, do external detailed and LFEC inspections for cracks in the skin; and do internal and external detailed and HFEC inspections for cracks in the skin and external doubler; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (j) Repetitive Post-Modification Inspections for Airplane Groups 4 Through 6, and 9 Through 11 With External Doublers Installed as Specified in Boeing Alert Service Bulletin 747-53A2367

    For airplanes identified as Groups 4 through 6, and 9 through 11, in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, with external doublers installed as specified in Boeing Alert Service Bulletin 747-53A2367: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface HFEC inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (k) Repetitive Post-Modification Inspections for Airplane Groups 12 and 13

    For airplanes identified as Groups 12 and 13 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface HFEC inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (l) Corrective Actions

    If any cracking is found during any inspection required by this AD: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (n) of this AD.

    (m) Exception to Boeing Alert Service Bulletin 747-53A2367, Revision 5, Dated July 8, 2014

    Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, specifies a compliance time “after the Revision 5 date of this service bulletin,” this AD requires compliance within the specified compliance time “after the effective date of this AD.”

    (n) 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 (o) 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, modification, or alteration 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. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.

    (o) Related Information

    For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    (p) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.

    (ii) Reserved.

    (3) 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.

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

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

    Issued in Renton, Washington, on November 4, 2015. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28891 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0927; Directorate Identifier 2013-NM-172-AD; Amendment 39-18325; AD 2015-23-09] RIN 2120-AA64 Airworthiness Directives; Zodiac Aerotechnics (Formerly Intertechnique Aircraft Systems) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Zodiac Aerotechnics (formerly Intertechnique Aircraft Systems) flightcrew oxygen mask regulators as installed on, but not limited to, various transport and small airplanes. This AD was prompted by a report that improper maintenance on oxygen mask regulators was found. This AD requires the identification and replacement of all potentially affected units. This AD also requires installation of a placard and revision of the airplane flight manual to include an operational procedure for use in case of depressurization. We are issuing this AD to detect and correct affected oxygen mask regulators, which could lead to inadequate protection to the affected flightcrew against hypoxia. Hypoxia can start from a headache and drowsiness and lead eventually to unconsciousness with severe consequence in terms of airplane controllability.

    DATES:

    This AD becomes effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 28, 2015.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0927; or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

    For service information identified in this AD, contact Zodiac Services, Technical Publication Department, Zodiac Aerotechnics, Oxygen Systems Europe, 61 Rue Pierre Curie—CS20001, 78373 Plaisir Cedex, France; phone: (33) 01 61 24 23 23; fax: (33) 01 30 55 71 61; email: [email protected]; Internet: http://www.zodiacaerospace.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-2015-0927.

    FOR FURTHER INFORMATION CONTACT:

    Ian Lucas, Aerospace Engineer, Boston Aircraft Certification Office (ACO) ANE-150, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7757; fax: 781-238-7170; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Zodiac Aerotechnics (formerly Intertechnique Aircraft Systems) flightcrew oxygen mask regulators as installed on, but not limited to, various transport and small airplanes. The NPRM published in the Federal Register on April 22, 2015 (80 FR 22438).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2012-0254R1, dated December 21, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Zodiac Aerotechnics (formerly Intertechnique Aircraft Systems) flightcrew oxygen mask regulators as installed on, but not limited to, various transport and small airplanes. The MCAI states:

    In a repair station, improper maintenance on [flightcrew] oxygen mask regulators was reported to Intertechnique: during an inspection of the oxygen test bench by its manufacturer, incorrect settings were noticed. This test bench setting discrepancy on the oxygen mask regulator could cause an improper mask dilution schedule.

    This condition, if not detected and corrected, could lead, in case of a diversion above 10,000 feet after a depressurization event, to the inhalation of air with improper content of oxygen, due to the bad dilution settings, thereby providing inadequate protection to the affected flightcrew member against hypoxia, which can start from a headache and drowsiness and lead eventually to unconsciousness with severe consequence in term of aeroplane controllability.

    For the reasons described above, this [EASA] AD requires the identification and replacement of all potentially affected units. This [EASA] AD also requires installation of a placard and [a revision to the airplane flight manual to include] * * * an operational procedure [in case of depressurization] pending replacement of the affected units.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-0927-0004. Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 22438, April 22, 2015) and the FAA's response to each comment. Boeing concurred with the contents of the NPRM.

    Request To Revise the Air Transport Association (ATA) Code

    Horizon Air requested that we change the ATA code specified in paragraph (d) of the proposed AD (80 FR 22438, April 22, 2015) to “35.” The commenter stated that the correct ATA code for oxygen is ATA 35.

    We agree with the commenter because this AD addresses an unsafe condition for certain oxygen mask regulators. We have removed the ATA code of “28” and instead we have referred to ATA code “35” in paragraph (d) of this AD.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (80 FR 22438, April 22, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 22438, April 22, 2015).

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

    Related Service Information Under 1 CFR Part 51

    Zodiac Services has issued Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012. The service information describes procedures for the identification and replacement of all potentially affected units. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 13 airplanes of U.S. registry.

    We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $225 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $6,240, or $480 per product.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0927; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-23-09 Zodiac Aerotechnics (formerly Intertechnique Aircraft Systems): Amendment 39-18325. FAA-2015-0927; Directorate Identifier 2013-NM-172-AD. (a) Effective Date

    This AD becomes effective December 28, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Zodiac Aerotechnics (formerly Intertechnique Aircraft Systems) flightcrew oxygen mask regulators having part number MC10, MF10, and MF20 series, with serial numbers listed in Appendix 1 of Zodiac Services Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012. These oxygen mask regulators are installed on various transport and small airplanes, certificated in any category, including, but not limited to, the airplanes of the manufacturers specified in paragraphs (c)(1), (c)(2), (c)(3), (c)(4), (c)(5), (c)(6), and (c)(7) of this AD. An oxygen mask regulator having part number MC10-04-127 with serial number 48573 is affected only if it is part of part number MSE101-27 with serial number 7521.

    (1) Airbus.

    (2) ATR—GIE Avions de Transport Régional.

    (3) The Boeing Company.

    (4) Bombardier, Inc.

    (5) Cessna Aircraft Company.

    (6) Gulfstream Aerospace Corporation.

    (7) Gulfstream Aerospace LP.

    (d) Subject

    Air Transport Association (ATA) of America Code 35, Oxygen.

    (e) Reason

    This AD was prompted by a report that improper maintenance on oxygen mask regulators was found. During an inspection of the oxygen test bench, incorrect settings were noticed. This test bench setting discrepancy on the oxygen mask regulator could cause an improper mask dilution schedule. We are issuing this AD to detect and correct affected oxygen mask regulators, which could lead, in case of mask usage at or above 10,000 feet after a depressurization event, to the inhalation of air with improper content of oxygen, due to the bad dilution settings, thereby providing inadequate protection to the affected flightcrew against hypoxia. Hypoxia can start from a headache and drowsiness and lead eventually to unconsciousness with severe consequence in terms of airplane controllability.

    (f) Compliance

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

    (g) Inspection

    Within 30 days after the effective date of this AD, inspect each flightcrew oxygen mask regulator to identify the part number and serial number, in accordance with the Accomplishment Instructions of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012. A review of airplane maintenance records is acceptable to make the determination as specified in this paragraph, provided those records can be relied upon for that purpose, and each flightcrew oxygen mask regulator can be conclusively identified from that review.

    (h) Action for Affected Regulators

    If the part number and serial number, identified as required by paragraph (g) of this AD, are listed in Appendix 1 of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012, within 30 days after the effective date of this AD, accomplish the actions specified in paragraph (h)(1) or (h)(2) of this AD.

    (1) Replace each affected flightcrew oxygen mask regulator with a part identified in paragraph (h)(1)(i) or (h)(1)(ii) of this AD.

    (i) A serviceable part, not having a part number and serial number listed in Appendix 1 of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (ii) A part that has been tested and passed the test in accordance with paragraph 3.A.(4) of the Accomplishment Instructions of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (2) Do the actions specified in paragraphs (h)(2)(i) and (h)(2)(ii) of this AD.

    (i) Revise the Emergency Procedures section of the airplane flight manual (AFM) by inserting the statement provided in figure 1 to paragraph (h)(2)(i) of this AD. This may be done by inserting a copy of figure 1 to paragraph (h)(2)(i) of this AD into the AFM.

    Figure 1 to Paragraph (h)(2)(i) of This AD In case of depressurization, both pilots must use the mask regulator on 100% demand or Emergency mode only. Note 1 to paragraph (h)(2)(i) of this AD:

    For oxygen over-consumption, refer to applicable airplane type certificate holder limitations, if existing, depending on the airplane configuration and/or flight plan.

    Note 2 to paragraph (h)(2)(i) of this AD:

    It is the operators' responsibility to assess the operational consequences of the oxygen over-consumption and ensure that the operational requirements with regard to supplemental oxygen and crew protective breathing equipment are still done. Operators are expected to amend, as applicable, their operations manual(s) accordingly.

    (ii) Fabricate and install a placard on the flightcrew oxygen mask container that states: “USE SELECTOR on “100%” OR “EMERGENCY” ONLY.”

    (i) Regulator Replacement

    Within 12 months after the effective date of this AD, unless already accomplished as specified in paragraph (h)(1) of this AD, replace each affected flightcrew oxygen mask regulator identified in paragraph (h) of this AD with a part identified in paragraph (i)(1) or (i)(2) of this AD. After replacement of all affected flightcrew oxygen mask regulators on an airplane, the actions specified in paragraph (h)(2) of this AD are no longer required, the AFM revision specified in paragraph (h)(2)(i) of this AD may be removed from the AFM, and the placard identified in paragraph (h)(2)(ii) of this AD may be removed from the airplane.

    (1) A serviceable part, not having a part number and serial number listed in Appendix 1 of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (2) A part that has been tested and passed the test in accordance with paragraph 3.A.(4) of the Accomplishment Instructions of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (j) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g), (h)(1)(ii), and (i)(2) of this AD, if those actions were performed before the effective date of this AD using Zodiac Aerospace Service Bulletin MCF-SBU-35-001, dated October 25, 2012, which is not incorporated by reference in this AD.

    (k) Parts Installation Limitation

    As of the effective date of this AD, no person may install any flightcrew oxygen mask regulator with a part number and serial number listed in Appendix 1 of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012, on any airplane, unless the regulator has been tested and passed the test, in accordance with paragraph 3.A.(4) of the Accomplishment Instructions of Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (l) Alternative Methods of Compliance (AMOCs)

    The Manager, Boston Aircraft Certification Office (ACO), ANE-150, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Ian Lucas, Aerospace Engineer, Boston Aircraft Certification Office, ANE-150, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7757; fax: 781-238-7170; email: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2012-0254R1, dated December 21, 2012, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-0927-0004.

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

    (n) Material Incorporated by Reference

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

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

    (i) Zodiac Aerospace Service Bulletin MCF-SBU-35-001, Revision 1, dated December 3, 2012.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Zodiac Services, Technical Publication Department, Zodiac Aerotechnics, Oxygen Systems Europe, 61 Rue Pierre Curie—CS20001, 78373 Plaisir Cedex, France; phone: (33) 01 61 24 23 23; fax: (33) 01 30 55 71 61; email: [email protected]; Internet: http://www.zodiacaerospace.com.

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

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

    Issued in Renton, Washington, on November 3, 2015. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28883 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0932; Directorate Identifier 2014-NM-205-AD; Amendment 39-18326; AD 2015-23-10] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-8 series airplanes. This AD was prompted by a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings were missing or had moved out of the holes. This AD requires installing a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment. We are issuing this AD to prevent detachment of the quick-release pin, which could result in separation of the lateral support tie rod and subsequent detachment of the module and consequent injuries to passengers or flightcrew.

    DATES:

    This AD is effective December 28, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 28, 2015.

    ADDRESSES:

    For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0932.

    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-2015-0932; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-8 airplanes. The NPRM published in the Federal Register on April 29, 2015 (80 FR 23739). The NPRM was prompted by a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings were missing or had moved out of the holes. The NPRM proposed to require installing a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment. We are issuing this AD to prevent detachment of the quick-release pin, which could result in separation of the lateral support tie rod and subsequent detachment of the module and consequent injuries to passengers or flightcrew.

    Comment

    We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM (80 FR 23739, April 29, 2015) and the FAA's response to each comment.

    Request To Revise Costs of Compliance Section

    Boeing asked that we add the parts cost to the cost table in the NPRM (80 FR 23739, April 29, 2015). Boeing stated that the parts cost per spacer is $80, which increases the cost per product to $1,100, and the cost on U.S. operators to up to $2,200.

    We agree with the commenter for the reason provided. We have included the parts cost and changed the amount of the cost per product and the cost on U.S. operators specified in the “Costs of Compliance” section of this final rule.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (80 FR 23739, April 29, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 23739, April 29, 2015).

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Special Attention Service Bulletin 747-25-3649, dated July 24, 2014. The service information describes procedures for installing a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 2 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
  • Spacer installations Up to 12 work-hours × $85 per hour = Up to $1,020 $80 per spacer Up to $1,100 Up to $2,200
    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): 2015-23-10 The Boeing Company: Amendment 39-18326; Docket No. FAA-2015-0932; Directorate Identifier 2014-NM-205-AD. (a) Effective Date

    This AD is effective December 28, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 747-8 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 747-25-3649, dated July 24, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.

    (e) Unsafe Condition

    This AD was prompted by a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings were missing or had moved out of the holes. We are issuing this AD to prevent detachment of the quick-release pin, which could result in separation of the lateral support tie rod and subsequent detachment of the module and consequent injuries to passengers or flightcrew.

    (f) Compliance

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

    (g) Installation

    Within 36 months after the effective date of this AD: Install a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-25-3649, dated July 24, 2014.

    (h) 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 Seattle ACO, send it to the attention of the person identified in paragraph (i) of this AD. Information may be emailed to: [email protected]

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

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

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

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

    (i) Related Information

    For more information about this AD, contact Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email: [email protected]

    (j) Material Incorporated by Reference

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

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

    (i) Boeing Special Attention Service Bulletin 747-25-3649, dated July 24, 2014.

    (ii) Reserved.

    (3) 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.

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

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

    Issued in Renton, Washington, on November 4, 2015. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28897 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 150 [Docket No. FDA-1997-P-0007 (formerly Docket No. 1997P-0142)] Artificially Sweetened Fruit Jelly and Artificially Sweetened Fruit Preserves and Jams; Revocation of Standards of Identity AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is revoking the standards of identity for artificially sweetened jelly, preserves, and jams. We are taking this action primarily in response to a citizen petition submitted by the International Jelly and Preserve Association (IJPA). We also are taking this action because these standards are obsolete and unnecessary in light of our regulations for foods named by use of a nutrient content claim and a standardized term. This action will promote honesty and fair dealing in the interest of consumers.

    DATES:

    The final rule is effective on November 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Terri Wenger, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2371.

    SUPPLEMENTARY INFORMATION:

    I. Background

    For more than 50 years, we have maintained standards of identity for fruit jelly (jelly) (§ 150.140 (21 CFR 150.140)) and fruit preserves and jams (preserves and jams) (§ 150.160). The standards establish the common or usual name for these products and provide that these products may contain nutritive sweeteners (e.g., sugar). In 1959, we added new standards of identity for artificially sweetened fruit jelly (artificially sweetened jelly) (§ 150.141) and artificially sweetened fruit preserves and jams (artificially sweetened preserves and jams) (§ 150.161) (24 FR 8896; October 31, 1959) that permit the use of non-nutritive sweeteners (e.g., saccharin). Notably, §§ 150.141 and 150.161 limit the types of non-nutritive sweeteners that can be used in products that are governed by those standards of identity. Under §§ 150.141 and 150.161, such products may only use saccharin, sodium saccharin, calcium saccharin, or any combination thereof, and may not use newer forms of non-nutritive sweeteners that have been developed since the standard of identity regulations were issued.

    The Nutrition Labeling and Education Act (NLEA) of 1990 amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to provide for a number of fundamental changes in food labeling, leading to a new regulatory framework for the naming of foods that do not fully comply with the relevant standards of identity. In response to NLEA, we established in part 101 (21 CFR part 101), among other things, definitions for specific nutrient content claims using terms such as “free”, “low”, ”light” or “lite”, and “less”, and provided for their use in food labeling (58 FR 2302; January 6, 1993). We also prescribed, in § 130.10 (21 CFR 130.10), a general definition and standard of identity for foods named by a nutrient content claim defined in part 101, such as “low calorie” or “sugar free”, in conjunction with a traditional standardized food term (58 FR 2431; January 6, 1993). A nutrient content claim applied to the standardized food “grape jelly”, for example, could be “low calorie grape jelly”. Section 130.10(d)(1) allows the addition of safe and suitable ingredients to a food named by use of a nutrient content claim and a standardized term when these ingredients are used to, among other things, add sweetness to ensure that the modified food is not inferior in performance characteristics to the standardized food even if such ingredients are not specifically provided for by the relevant food standard. Thus, under certain circumstances, § 130.10 permits manufacturers to use safe and suitable artificial sweeteners (e.g., sucralose) that are not expressly listed in §§ 150.141 and 150.161 in the manufacture of jelly, fruit preserves, and jams (collectively, “fruit spreads”). Therefore, fruit spread products named with a nutrient content claim (for example, “low calorie grape jelly”) may contain newer artificial sweeteners to add sweetness to fruit spread products so that they are not inferior in their sweetness compared to their standardized counterparts (for example, “grape jelly”). Section 130.10 does not require these products to declare the presence of such non-nutritive sweeteners within the name of these foods. We took this action to help consumers in maintaining healthy dietary practices by providing for a modified version of a traditional standardized food to achieve a nutrition goal (e.g., reduction in sugar consumption or calories) and that has a descriptive name that is meaningful to consumers. Section 130.10 does not, however, permit the use of nutrient content claims as part of the name of a food for foods governed by standards of identity that established the phrase “artificially sweetened” as part of the standard of identity. Accordingly, jelly, preserves, and jams, that use saccharin, sodium saccharin, calcium saccharin, or any combination thereof as non-nutritive sweeteners must still include the term “artificially sweetened” in their names and are not permitted to bear a nutrient content claim as part of the name. However, similar products that use newer non-nutritive sweeteners are governed by § 130.10 and are not required to include the term “artificially sweetened” in their names.

    In the Federal Register of December 4, 2012, we proposed to revoke the standards of identity for artificially sweetened jelly, preserves, and jam in §§ 150.141 and 150.161 (77 FR 71746). The proposed rule was in response to a citizen petition submitted by the IJPA requesting such a revocation. In issuing the notice of proposed rulemaking, we stated that we found merit in the argument made in IJPA's petition that revoking §§ 150.141 and 150.161 would allow manufacturers to more accurately and consistently describe the attributes of the fruit spreads that currently conform to those regulations. We therefore tentatively concluded that revoking the standards of identity for artificially sweetened jelly, preserves, and jams would promote honesty and fair dealing in the interest of consumers and was thus appropriate under section 401 of the FD&C Act (21 U.S.C. 341). We tentatively reached this conclusion because we found that nutrient content claims such as “low calorie” or “reduced sugar” better characterize the nutritional profile of the affected fruit spreads than does the term “artificially sweetened”. Further, we stated that revoking §§ 150.141 and 150.161 would provide manufacturers with the flexibility to use the three non-nutritive sweeteners listed in those standards while also naming their products using FDA-defined nutrient content claims, in accordance with § 130.10. We also noted that other safe and suitable artificial sweeteners that might be developed in the future could be used in these products under § 130.10 without the need to further revise relevant standards of identity, and that the proposed rule was consistent with FDA's proposed general principles for modernizing food standards (70 FR 29214; May 20, 2005).

    II. Comments to the Proposed Rule and FDA's Responses

    We received 21 comments to the proposed rule. The comments were from trade associations, food companies, and individuals. Two comments were identical, and another comment appeared to have been misdirected because it pertained to blogs. Most of the comments made general remarks supporting or opposing the rule and did not focus on a particular component of the rule.

    Six comments supported the proposed rule. One comment stated that the proposed rule would provide flexibility to industry to use artificial sweeteners and to not use the term “artificially sweetened” in the name of their products. The comment also stated that the proposed rule would provide consistency and uniformity in the labeling of fruit spreads. Several comments stated that §§ 150.141 and 150.161 limit the type of non-nutritive sweeteners, and that enactment of the NLEA and FDA's regulation in § 130.10 allow flexibility. One of the comments also stated that the use of nutrient content claims such as “reduced sugar” in accordance with § 130.10 provides a better way to communicate with consumers to meet their nutritional goals.

    In contrast, other comments opposed the proposed rule. Several comments said that the rule would remove transparency that allows consumers to make knowledgeable decisions. Another expressed concern that the non-nutritive sweeteners would not be labeled and that consumers would be cheated. Still others stated that removing the term “artificially sweetened” is deceitful, would allow harmful chemicals to be hidden in food, and would not protect consumers.

    The final rule will not result in the declaration of non-nutritive sweeteners being removed from labels and will not result in substances being hidden in food. In accordance with § 101.4(a) (21 CFR 101.4(a)), ingredients (including non-nutritive sweeteners) must be declared by common or usual name on either the principal display panel or the information panel of the label. Thus, for example, the ingredient panel must list any non-nutritive sweeteners, including, for example, the three saccharin products currently subject to §§ 150.141 and 150.161 and any of the newer non-nutritive sweeteners such as sucralose. What the final rule will do is require any food products currently subject to §§ 150.141 and 150.161 to instead be subject to § 130.10. Although § 130.10 does not require products to declare the presence of non-nutritive sweeteners within the name of these foods (e.g., § 130.10 does not require a jam made with a non-nutritive sweetener to be named “artificially sweetened jam”), it does require foods subject to that provision to be named by use of a nutrient content claim defined in part 101 (e.g., “reduced calorie” or “no sugar added”). Nutrient content claims such as “low calorie” or “no sugar added” better characterize the nutritional profile of the fruit spreads currently subject to §§ 150.141 and 150.161 than does the term “artificially sweetened.” The final rule will also allow better comparison to other jams, jellies, and preserves currently modified under the provisions of § 130.10. For example, under current requirements, a jelly that is sweetened with saccharin must be called “artificially sweetened jelly” (in accordance with § 150.141), whereas a similar jelly sweetened with sucralose may be named as “reduced sugar jelly” (in accordance with § 130.10 and provided it meets the requirements for the nutrient content claim “reduced sugar” in § 101.60(c)(5) to distinguish it from the standardized food (jelly in § 150.140). Revoking the standards will provide consistency and uniformity among such products because all fruit spreads sweetened with non-nutritive sweeteners will be subject to the same requirements. For these reasons, the final rule will promote honesty and fair dealing in the interest of consumers consistent with section 401 of the FD&C Act.

    As for the comment that artificial sweeteners are “toxic” or “dangerous,” that comment does not address the merits of revoking §§ 150.141 and 150.161.

    III. Analysis of Impacts

    We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under Executive Order 12866.

    The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because we have concluded, as set forth in this document, that this rule will not generate significant compliance costs, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $144 million, using the most current (2014) Implicit Price Deflator for the Gross Domestic Product. We do not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

    A. Need for This Regulation

    We are revoking the standards of identity for artificially sweetened jelly, preserves, and jams because these standards are obsolete and unnecessary. The current standards of identity for artificially sweetened jelly (§ 150.141) and artificially sweetened preserves and jams (§ 150.161) provide that they may be manufactured only with specific, non-nutritive artificial sweeteners: Saccharin, sodium saccharin, calcium saccharin, or any combination thereof. These standards of identity, therefore, do not permit the use of newer, safe, and suitable artificial sweeteners, such as sucralose.

    The development of newer artificial sweeteners and the enactment of the NLEA have made the current standards of identity for artificially sweetened jelly, preserves, and jams obsolete. The NLEA and § 130.10 permit the modification of a traditional standardized food to achieve a nutrition goal, such as a reduction in calories. Section 130.10(d)(1) allows the addition of safe and suitable ingredients to a food named by use of a nutrient content claim and a standardized term when these ingredients are used to, among other things, add sweetness to ensure that the modified food is not inferior in performance characteristic to the standardized food, even if such ingredients are not specifically provided for by the relevant food standard.

    Standardized jelly and standardized preserves and jams products modified under § 130.10 must use nutrient content claims to communicate the modified standardized product's nutritional profile to consumers. Under § 130.10, nonspecific, safe, and suitable artificial sweeteners other than the three named in §§ 150.141 and 150.161 can be used to make reduced calorie or reduced sugar products labeled with a nutrient content claim that is established in FDA regulations. Revoking the standards of identity means that any product subject to §§ 150.141 and 150.161 will instead be subject to § 130.10. This will allow consumers to better compare any fruit spreads currently covered by §§ 150.141 and 150.161 with other spreads that are named and modified under the provisions of § 130.10. Revoking the standards also gives manufacturers the flexibility to use the three non-nutritive sweeteners listed in §§ 150.141 and 150.161, while naming their products under § 130.10 using a defined nutrient content claim.

    B. Regulatory Options

    In assessing our regulatory options, we considered the option of taking no action and the option of implementing this final rule. We conclude that the rule is not an economically significant regulatory action. We are not quantitatively estimating the benefits and costs of the regulatory alternatives to the rule. In the following paragraphs, we qualitatively compare the costs and benefits of the regulatory options to the costs and benefits of the rule.

    1. The Option of Taking No Action

    By convention, we treat the option of taking no new regulatory action as the baseline for determining the costs and benefits of the other options. Therefore, we associate neither costs nor benefits with this option. The consequences of taking no action are reflected in the costs and benefits associated with taking the action set forth in this rule.

    2. The Option of Implementing the Final Rule

    By revoking §§ 150.141 and 150.161, products that are currently subject to the requirements of these standards of identity will no longer be required to use the phrase “artificially sweetened” as part of their product name. Furthermore, revoking §§ 150.141 and 150.161 means that these same products will be permitted to bear nutrient content claims along with a standardized term (e.g., “reduced calorie jelly” or “no sugar added jam”), in accordance with § 130.10.

    The costs of this rule result from the need to relabel any existing jelly, preserves, and jams that conform with §§ 150.141 and 150.161. Any products currently manufactured in accordance with the standards in §§ 150.141 and 150.161 will have to be relabeled in order to comply with § 130.10. Our review of supermarket scanner data for the years 2001 through 2010, however, revealed that no such products are currently being sold. Sales for products manufactured and labeled in accordance with §§ 150.141 and 150.161 were last reported in 2002. A memorandum summarizing the results of this scanner data can be found in Reference 1. The data support our conclusion that most manufacturers most likely have discontinued production of jelly, preserves, and jams that must be labeled as “artificially sweetened,” presumably because of a perception that the phrase “artificially sweetened” is unattractive to consumers. The data also support our conclusion that it is unlikely that the rule will generate significant compliance costs due to the need to relabel products. In fact, removal of the artificially sweetened standards of identity will allow manufacturers to re-introduce products covered under §§ 150.141 and 150.161 to be sold as products covered by § 130.10. That is, such products would be named by use of a nutrient content claim in conjunction with a standardized term (e.g., “reduced calorie jelly” or “no sugar added jam”), in accordance with § 130.10. Therefore, we conclude that any relabeling compliance costs will be negligible.

    We do not classify as anticipated costs of this rule any expenses that firms might voluntarily incur if they choose to change their product formulas or manufacturing practices. Any such costs are not costs that would be required by the rule. Instead, these costs would result from voluntary business decisions made by manufacturers.

    We conclude that the principal benefits that will result from the rule derive from increased information and flexibility. Revoking the artificially sweetened standards of identity will provide producers of jelly, preserves, and jams with the flexibility to use saccharin, sodium saccharin, calcium saccharin, or any combination thereof, in their formulations without having to include the term “artificially sweetened” in their product names. Manufacturers could instead name their products in accordance with approved nutrient content claims, as provided for under § 130.10, thus providing consumers with additional information about the nutritional profile of affected products. Additionally, revoking §§ 150.141 and 150.161 will help consumers compare products covered by the standards with other similar jelly, preserves, and jams manufactured in accordance with § 130.10.

    Accordingly, while we do not quantify the costs and benefits of the rule, we conclude that potential benefits will outweigh any potential costs associated with the rule.

    C. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because compliance costs, if any, generated by this rule are expected to be negligible, we conclude that this rule will not have a significant economic impact on a substantial number of small entities. The following analysis, in conjunction with the discussion in this document, constitutes our final regulatory flexibility analysis as required by the Regulatory Flexibility Act.

    The rule revokes the standards of identity for artificially sweetened jelly, preserves, and jams. The revocation of these artificially sweetened standards of identity gives small fruit spread firms the flexibility to use the three non-nutritive sweeteners listed in §§ 150.141 and 150.161 and to name their products with FDA-defined nutrient content claims in accordance with § 130.10, as is currently done for fruit spread products manufactured with other non-nutritive sweeteners.

    We do not classify as costs of this rule any expenses that some small firms might voluntarily incur because they choose to change their product formulas or manufacturing practices. As discussed in this document, any such costs would not be costs required by this rule.

    IV. Federalism

    We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive Order requires Agencies to “construe a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.”

    Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a) of the FD&C Act provides that no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement for a food which is the subject of a standard of identity established under section 401 (of the FD&C Act) that is not identical to such standard of identity or that is not identical to the requirement of section 403(g) of the FD&C Act (21 U.S.C. 343(g)). The express preemption provision of section 403A(a) of the FD&C Act does not preempt any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food (section 6(c)(2) of the NLEA, Pub. L. 101-535, 104 Stat. 2353, 2364 (1990)).

    This final rule will impose requirements that fall within the scope of section 403A(a) of the FD&C Act.

    V. Environmental Impact

    We have determined under 21 CFR 25.32(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VI. Paperwork Reduction Act

    This final rule contains no collection of information. Therefore, clearance by Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VII. Reference

    The following reference is on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852 and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at http://www.regulations.gov. FDA has verified the Web site address, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. A.C. Nielsen Scantrack data, (2001-2010). The Nielsen Company, 770 Broadway, New York, NY 10003-9595 (http://www.acnielsen.com/).

    List of Subjects in 21 CFR Part 150

    Food grades and standards, Fruits.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 150 is amended as follows:

    PART 150—FRUIT BUTTERS, JELLIES, PRESERVES, AND RELATED PRODUCTS 1. The authority citation for 21 CFR part 150 continues to read as follows: Authority:

    21 U.S.C. 321, 341, 343, 348, 371, 379e.

    § 150.141 [Removed]
    2. Remove § 150.141.
    § 150.161 [Removed]
    3. Remove § 150.161. Dated: November 16, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-29631 Filed 11-19-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 872 [Docket No. FDA-2014-N-1243] Dental Devices; Reclassification of Electrical Salivary Stimulator System AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is issuing a final order to reclassify the salivary stimulator system, a postamendments Class III device, into class II (special controls) and to rename the device the “electrical salivary stimulator system.” The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective December 21, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Michael Ryan, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1615, Silver Spring, MD 20993, 301-796-6283.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended, 21 U.S.C. 301 et seq., establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

    Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices) are automatically classified by section 513(f)(1) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

    A postamendments device that has been initially classified in class III under section 513(f)(1) of the FD&C Act may be reclassified into class I or class II under section 513(f)(3) of the FD&C Act. Section 513(f)(3) provides that FDA acting by order can reclassify the device into class I or class II on its own initiative, or in response to a petition from the manufacturer or importer of the device. To change the classification of the device, the proposed new class must have sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use.

    Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available regulatory authority (see Bell v. Goddard, 366 F.2d 177, 181 (7th Cir. 1966); Ethicon, Inc. v. FDA, 762 F. Supp. 382, 388-391 (D.D.C. 1991)), or in light of changes in “medical science” (Upjohn v. Finch, 422 F.2d 944, 951 (6th Cir. 1970)). Whether data before the Agency are old or new, the “new information” to support reclassification under section 513(f)(3) of the FD&C Act must be “valid scientific evidence”, as defined in section 513(a)(3) and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Assoc. v. FDA, 766 F.2d 592 (D.C. Cir.1985), cert. denied, 474 U.S. 1062 (1986)).

    FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the “valid scientific evidence” upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending premarket approval application (PMA) (see section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).

    On September 18, 2014, FDA published an order in the Federal Register to reclassify the device (79 FR 56027) (the “proposed order”). The period for public comment on the proposed order closed on December 17, 2014. FDA received and has considered 20 comments on the proposed order, as discussed in section II.

    II. Public Comments in Response to the Proposed Order

    Of the 20 public comments that FDA received in response to the proposed order, 17 comments supported the proposed reclassification and 3 comments were opposed. All of the commenters were individuals, 12 of whom identified themselves as medical practitioners. Eight of these 12 practitioners claimed prior research experience with the device. Three commenters claimed experience with the device as patients in clinical trials.

    All of the practitioners' and patients' comments were supportive of the reclassification proposal. All of the practitioners with prior experience administering the device noted favorable results for some of their patients and no adverse events. The other four practitioners who commented either had recommended, or if available would recommend, the device as a non-pharmaceutical option for treating dry mouth conditions.

    Five commenters did not claim any prior professional or patient experience with the device. Of these comments, two favored finalization of the proposed reclassification based on the evidence presented in the proposed order.

    Three comments opposed the proposed reclassification. None of these commenters claimed prior professional or patient experience with the device. One commenter believed that the proposed order adequately addressed safety concerns but failed to provide convincing evidence of the effectiveness of the device.

    FDA disagrees with the comment. The special control requiring documented clinical experience will allow the Agency to require information on each device's effectiveness in actual clinical use.

    Two commenters believed that the devices should undergo further clinical trials to evaluate device and human factors risks, and that electrically powered salivary stimulators are inherently hazardous and subject to misuse and, without conclusive test results, should continue to be classified as Class III devices and be subject to premarket approval.

    The Agency disagrees that electrical salivary stimulator systems should remain class III and subject to premarket approval. The Agency believes that the special controls required in this final order provide a reasonable assurance of safety and effectiveness for these devices. FDA believes it has identified the risks to health (see section VI of the proposed order) and that the mitigation measures described in the final order will be effective in mitigating the risks described in the two comments, including the risks associated with the low-voltage electrical features of the devices. In particular, the special control requiring documented clinical experience will allow the Agency to require information on each device's safety and effectiveness in actual clinical use, including any human factors risks. These devices utilize technology similar to that used in other class II medical devices such as transcutaneous electrical nerve stimulators. The Agency believes that its experience with similar devices and the lack of adverse events for salivary stimulators in FDA's Manufacturer and User Facility Device Experience (MAUDE) database and peer-reviewed literature provide sufficient information to establish special controls that mitigated the risks to health identified for this device type in the proposed order.

    The Agency is making a minor modification to the proposed special controls for electrical salivary stimulator systems by replacing the term “geometry” in the first special control with the term “device design.” FDA makes this revision to clarify the intent of the special control.

    III. The Final Order

    Under section 513(f)(3) of the FD&C Act, FDA is adopting its findings as published in the preamble to the proposed order. FDA is issuing this final order to reclassify salivary stimulator system devices from class III to class II, rename them electrical salivary stimulator systems, and establish special controls by revising part 872 (21 CFR part 872).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the devices. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of electrical salivary stimulator systems, and therefore, this device type is not exempt from premarket notification requirements.

    The device is assigned the generic name electrical salivary stimulator system, and it is identified as a prescription intraoral device intended to electrically stimulate a relative increase in saliva production. FDA is identifying the device under this new name to distinguish it from other devices that stimulate saliva flow via non-electrical means.

    Under this final order, the electrical salivary stimulatory system device is a prescription device restricted to patient use only upon the authorization of a dental practitioner or physician licensed by law to administer or use the device (see 21 CFR 801.109 (Prescription devices)). Prescription-use restrictions are a type of general control defined in section 513(a)(1)(A)(i) of the FD&C Act. The labeling of the device must bear all information required for the safe and effective use of prescription devices as outlined in § 801.109.

    Under section 513(f)(3) of the FD&C Act, FDA is adopting its findings as published in the preamble to the proposed order, with the following correction: FDA stated in the proposed order that the Agency utilized section 520(h)(4) of the FD&C Act to review data contained in premarket approval applications (PMAs) approved 6 or more years before the date of the proposed order. The Agency would like to clarify that this language was included unintentionally, and that the provisions of section 520(h)(4) were not utilized in this rulemaking proceeding.

    IV. Environmental Impact, No Significant Impact

    We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    V. Paperwork Reduction Act of 1995

    This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 872

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321 et seq., as amended) and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 872 is amended as follows:

    PART 872—DENTAL DEVICES 1. The authority citation for 21 CFR part 872 continues to read as follows:

    Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Add § 872.5560 to subpart F to read as follows:
    § 872.5560 Electrical salivary stimulatory system.

    (a) Identification. An electrical salivary stimulatory system is a prescription intraoral device that is intended to electrically stimulate a relative increase in saliva production.

    (b) Classification—Class II (special controls). The special controls for this device are:

    (1) The design characteristics of the device must ensure that the device design, material composition, and electrical output characteristics are consistent with the intended use;

    (2) Any element of the device that contacts the patient must be demonstrated to be biocompatible;

    (3) Appropriate analysis and/or testing must validate electromagnetic compatibility and electrical safety, including the safety of any battery used in the device;

    (4) Software validation, verification, and hazard testing must be performed; and

    (5) Documented clinical experience must demonstrate safe and effective use for stimulating saliva production by addressing the risks of damage to intraoral tissue and of ineffective treatment and must capture any adverse events observed during clinical use.

    Dated: November 13, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-29638 Filed 11-19-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 880 [Docket No. FDA-2015-N-3838] Medical Devices; General Hospital and Personal Use Devices; Classification of the Ultraviolet Radiation Chamber Disinfection Device AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is classifying the ultraviolet (UV) radiation chamber disinfection device into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the UV radiation chamber disinfection device classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective November 20, 2015. The classification was applicable on December 20, 2011.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth Claverie, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2508, Silver Spring, MD 20993-0002, 301-796-6298.

    SUPPLEMENTARY INFORMATION: I. Background

    In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD& C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

    Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1) of the FD&C Act. Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2) . Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

    In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device. In accordance with section 513(f)(1) of the FD&C Act, FDA issued an order on October 28, 2010, classifying the Vioguard Self-Sanitizing Keyboard into class III, because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device which was subsequently reclassified into class I or class II. On November 2, 2010, Vioguard submitted a request for classification of the Vioguard Self-Sanitizing Keyboard under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II (Ref. 1).

    In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on December 20, 2011, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 880.6600.

    Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a UV radiation chamber disinfection device will need to comply with the special controls named in this final order. The device is assigned the generic name UV radiation chamber disinfection device, and it is identified as a UV chamber disinfection device intended for the low-level surface disinfection of non-porous equipment surfaces by dose-controlled UV irradiation. This classification does not include self-contained open chamber UV disinfection devices intended for whole room disinfection in a health care environment.

    FDA has identified the following risks to health associated specifically with this type of device, as well as the mitigation measures required to mitigate these risks in table 1.

    Table 1—Ultraviolet Radiation Chamber Disinfection Device Risks and Mitigation Measures Identified risks Mitigation measures Inadequate Equipment Disinfection Performance Testing. Labeling. UV Radiation Exposure Performance Testing. Labeling. Electrical Shock Electrical Safety Testing. Electromagnetic Interference Electromagnetic Compatibility (EMC) Testing. Labeling. Ozone Exposure Ozone Generation Limits. Labeling. Processed Equipment Incompatibility Performance Testing. Labeling. Contamination of Device Cleaning and Disinfection Validation. Labeling. Software Malfunction Hazard Analysis of Software. Software Verification and Validation.

    FDA believes that the special controls in § 880.6600(b)(1) through (4), in addition to the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the UV radiation chamber disinfection device they intend to market.

    II. Environmental Impact

    We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    III. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling have been approved under OMB control number 0910-0485.

    IV. Reference

    The following reference is on display in the Division of Dockets Management (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at http://www.regulations.gov.

    1. DEN100013: de novo request per 513(f)(2) from Vioguard, dated November 2, 2010.

    List of Subjects in 21 CFR Part 880

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 880 is amended as follows:

    PART 880—GENERAL HOSPITAL AND PERSONAL USE DEVICES 1. The authority citation for 21 CFR part 880 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Section 880.6600 is added to subpart G to read as follows:
    § 880.6600 Ultraviolet (UV) radiation chamber disinfection device.

    (a) Identification. An ultraviolet (UV) radiation chamber disinfection device is intended for the low-level surface disinfection of non-porous equipment surfaces by dose-controlled UV irradiation. This classification does not include self-contained open chamber UV radiation disinfection devices intended for whole room disinfection in a health care environment.

    (b) Classification—Class II (special controls). The special controls for this device are:

    (1) Performance testing must demonstrate the following:

    (i) The chamber's ability to control the UV radiation dose during operation.

    (ii) The chamber's disinfection performance through microbial challenge testing.

    (iii) Evidence that the equipment intended to be processed is UV compatible.

    (iv) Validation of the cleaning and disinfection procedures.

    (v) The ability of the device to continue to perform to all specification after cleaning and disinfection.

    (vi) Whether the device generates ozone (if so, 21 CFR 801.415, Maximum acceptable level of ozone, applies).

    (2) Appropriate software verification, validation, and hazard analysis must be performed.

    (3) Appropriate analysis and/or testing must validate electrical safety, mechanical safety, and electromagnetic compatibility of the device in its intended use environment.

    (4) The labeling must include:

    (i) UV hazard warning labels.

    (ii) Explanation of all displays and/or labeling on user interface.

    (iii) Explanation of device safety interlocks.

    (iv) Explanation of all disinfection cycle signals, cautions and warnings.

    (v) Device operating procedures.

    (vi) Identification of the expected UV lamp operational life and instructions for procedures on replacement of the UV lamp when needed.

    (vii) Procedures to follow in case of UV lamp malfunction or failure.

    (viii) Procedures for disposing of mercury-containing UV lamps, if applicable.

    (ix) Identification of specific equipment that is compatible with the UV radiation dose generated by the device and that can safely undergo UV radiation low-level disinfection in the chamber device.

    (x) Description of the required preparation of equipment for disinfection in the UV radiation chamber device.

    (xi) Identification of the specific microbes used in successful performance testing of the device.

    (xii) Validated instructions for cleaning and disinfection of the device.

    Dated: November 17, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-29660 Filed 11-19-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 890 [Docket No. FDA-2015-P-1197] Medical Devices; Exemption From Premarket Notification; Class II Devices; Electric Positioning Chair AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is publishing an order granting a petition requesting exemption from premarket notification requirements for electric positioning chair devices. An electric positioning chair is a device with a motorized positioning control that is intended for medical purposes and that can be adjusted to various positions. These devices are used to provide stability for patients with athetosis (involuntary spasms) and to alter postural positions. This order exempts electric positioning chairs, class II devices, from premarket notification, subject to certain conditions for exemption. This exemption from premarket notification, subject to these conditions (and the limitations in the physical medicine devices limitations of exemptions from premarket notification section of the device regulations), is immediately in effect for electric positioning chairs. FDA is publishing this order in accordance with the exemption from class II premarket notification section of the Federal Food, Drug, and Cosmetic Act (the FD&C Act).

    DATES:

    This order is effective November 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    John Marszalek, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1427, Silver Spring, MD 20993, 301-796-7067.

    SUPPLEMENTARY INFORMATION:

    I. Statutory Background

    Section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and its implementing regulations (21 CFR part 807) require persons who propose to begin the introduction or delivery for introduction into interstate commerce for commercial distribution of a device intended for human use to submit a premarket notification (510(k)) to FDA. The device may not be marketed until FDA finds it “substantially equivalent” within the meaning of section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a legally marketed device that does not require premarket approval.

    On November 21, 1997, the President signed into law the Food and Drug Administration Modernization Act of 1997 (FDAMA). Section 206 of FDAMA added section 510(m) to the FD&C Act. Section 510(m)(1) of the FD&C Act requires FDA, within 60 days after enactment of FDAMA, to publish in the Federal Register a list of each type of class II device that does not require a report under section 510(k) of the FD&C Act to provide reasonable assurance of safety and effectiveness. Section 510(m) of the FD&C Act further provides that a 510(k) will no longer be required for these devices upon the date of publication of the list in the Federal Register. FDA published that list in the Federal Register of January 21, 1998 (63 FR 3142).

    Section 510(m)(2) of the FD&C Act provides that FDA may exempt a device from premarket notification requirements on its own initiative, or upon petition of an interested person, if FDA determines that a 510(k) is not necessary to assure the safety and effectiveness of the device. This section requires FDA to publish in the Federal Register a notice of intent to exempt a device, or of the petition, and to provide a 30-day comment period. FDA must publish in the Federal Register its final determination regarding the exemption of the device that was the subject of the notice. If FDA fails to respond to a petition under this section within 180 days of receiving it, the petition shall be deemed granted.

    II. Criteria for Exemption

    There are a number of factors FDA may consider to determine whether a 510(k) is necessary to assure the safety and effectiveness of a class II device. These factors are discussed in the guidance that the Agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions From Premarket Notification, Guidance for Industry and CDRH Staff” (Class II 510(k) Exemption Guidance). That guidance can be obtained through the Internet on the Center for Devices and Radiological Health home page at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/ucm080198.htm or by sending an email request to [email protected] to receive a copy of the document. Please use the document number 159 to identify the guidance you are requesting.

    III. Device Description

    Electric positioning chairs are devices with a motorized positioning control that are intended for medical purposes and that can be adjusted to various positions. Existing legally marketed devices have identified a range of specific procedures or conditions for which an electric positioning chair could be used to provide stability and to alter postural positions (e.g., muscular dystrophy, Parkinson's syndrome, or joint replacements). The devices are primarily intended to provide stability and a controlled lift from a seated position to a standing position, while supporting the patient's weight (alter postural positions). The device consists of a frame (where the user would sit) and a lift mechanism, and may also allow the patient to recline in the device.

    IV. Petition

    On April 10, 2015, FDA received a petition requesting an exemption from premarket notification for electric positioning chair devices. (See Docket No. FDA-2015-P-1197.) These devices are currently classified under 21 CFR 890.3110 Electric positioning chair.

    In the Federal Register of June 12, 2015 (80 FR 33525), FDA published a notice announcing that this petition had been received and provided opportunity for interested persons to submit comments on the petition by July 13, 2015. FDA received no comments.

    FDA has assessed the need for 510(k) clearance for this type of device using the criteria laid out in the Class II 510(k) Exemption Guidance and in the January 21, 1998, notice (63 FR 3142 at 3143). Based on its review, FDA believes that premarket notification is not necessary to assure the safety and effectiveness of the device, as long as certain conditions are met. FDA believes that the risks posed by the device (such as instability, entrapment, use error, falls and associated injuries, battery/electrical/mechanical failure, pressure sores, bruising, burns, electric shock, and electromagnetic incompatibility/interference) and the characteristics of the device necessary for its safe and effective performance (such as safety features, weight capacity, power source, drive mechanism/actuator, and user controls) are well established. Moreover, FDA believes that changes in the device that could affect safety and effectiveness will be readily detectable by certain types of routine analysis and non-clinical testing, such as those detailed in certain consensus standards. Therefore, after reviewing the petition, FDA has determined that premarket notification is not necessary to assure the safety and effectiveness of electric positioning chairs, as long as the conditions for 510(k) exemption in section V are met. FDA responded to the petition by letter dated October 9, 2015, to inform the petitioner of this decision within the 180-day timeframe under section 510(m)(2) of the FD&C Act.

    V. Conditions for Exemption

    This final order provides conditions for exemption from premarket notification. The following conditions must be met for the device to be 510(k)-exempt: (1) Appropriate analysis and non-clinical testing must demonstrate that the safety controls are adequate to ensure safe use of the device and prevent user falls from the device in the event of a device failure; (2) appropriate analysis and non-clinical testing must demonstrate the ability of the device to withstand the rated user weight load with an appropriate factor of safety; (3) appropriate analysis and non-clinical testing must demonstrate the longevity of the device to withstand external forces applied to the device and provide the user with an expected service life of the device; (4) appropriate analysis and non-clinical testing must demonstrate proper environments of use and storage of the device to maximize the longevity of the device; (5) appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of ANSI/AAMI ES60601-1: “Medical Electrical Equipment—Part 1: General Requirements for Basic Safety and Essential Performance,” and ANSI/AAMI/IEC 60601-1-2, “Medical Electrical Equipment—Part 1-2: General Requirements for Basic Safety and Essential Performance—Collateral Standard: Electromagnetic Disturbances—Requirements and Tests”) must validate electromagnetic compatibility and electrical safety; (6) appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of ANSI/AAMI/ISO 10993-1, “Biological Evaluation of Medical Devices—Part 1: Evaluation and Testing Within a Risk Management Process,” ANSI/AAMI/ISO 10993-5, “Biological Evaluation of Medical Devices—Part 5: Tests for In Vitro Cytotoxicity,” and ANSI/AAMI/ISO 10993-10, “Biological Evaluation of Medical Devices—Part 10: Tests for Irritation and Skin Sensitization”) must validate that the skin-contacting components of the device are biocompatible; (7) appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of IEC 62304, “Medical Device Software—Software Life Cycle Processes”) must validate the software life cycle and that all processes, activities, and tasks are implemented and documented; (8) appropriate analysis and non-clinical testing must validate that the device components are found to be non-flammable; (9) appropriate analysis and non-clinical testing must validate that the battery in the device (if applicable) performs as intended over the anticipated service life of the device; and (10) adequate patient labeling is provided to the user to document proper use and maintenance of the device to ensure safe use of the device by the patient in the intended use environment.

    Firms are now exempt from 510(k) requirements for electric positioning chairs as long as they meet these conditions of exemption, subject to the limitations in 21 CFR 890.9. Firms must comply with the conditions for exemption or submit and receive clearance for a 510(k) prior to marketing.

    VI. Environmental Impact

    The Agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VII. Paperwork Reduction Act of 1995

    This final order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 801, regarding medical device labeling, have been approved under OMB control number 0910-0485 and the collections of information in 21 CFR part 820, regarding the quality system regulation, have been approved under OMB control number 0910-0073.

    List of Subjects in 21 CFR Part 890

    Medical devices, Physical medicine devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 890 is amended as follows:

    PART 890—PHYSICAL MEDICINE DEVICES 1. The authority citation for 21 CFR part 890 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. In § 890.3110, revise paragraph (b) to read as follows:
    § 890.3110 Electric positioning chair.

    (b) Classification. Class II. The electric positioning chair is exempt from premarket notification procedures in subpart E of part 807 of this chapter, subject to § 890.9 and the following conditions for exemption:

    (1) Appropriate analysis and non-clinical testing must demonstrate that the safety controls are adequate to ensure safe use of the device and prevent user falls from the device in the event of a device failure;

    (2) Appropriate analysis and non-clinical testing must demonstrate the ability of the device to withstand the rated user weight load with an appropriate factor of safety;

    (3) Appropriate analysis and non-clinical testing must demonstrate the longevity of the device to withstand external forces applied to the device and provide the user with an expected service life of the device;

    (4) Appropriate analysis and non-clinical testing must demonstrate proper environments of use and storage of the device to maximize the longevity of the device;

    (5) Appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of ANSI/AAMI/ES60601-1, “Medical Electrical Equipment—Part 1: General Requirements for Basic Safety and Essential Performance,” and ANSI/AAMI/IEC 60601-1-2, “Medical Electrical Equipment—Part 1-2: General Requirements for Basic Safety and Essential Performance—Collateral Standard: Electromagnetic Disturbances—Requirements and Tests”) must validate electromagnetic compatibility and electrical safety;

    (6) Appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of ANSI/AAMI/ISO 10993-1, “Biological Evaluation of Medical Devices—Part 1: Evaluation and Testing Within a Risk Management Process,” ANSI/AAMI/ISO 10993-5, “Biological Evaluation of Medical Devices—Part 5: Tests for In Vitro Cytotoxicity,” and ANSI/AAMI/ISO 10993-10, “Biological Evaluation of Medical Devices—Part 10: Tests for Irritation and Skin Sensitization”) must validate that the skin-contacting components of the device are biocompatible;

    (7) Appropriate analysis and non-clinical testing (such as that outlined in the currently FDA-recognized editions of IEC 62304, “Medical Device Software—Software Life Cycle Processes”) must validate the software life cycle and that all processes, activities, and tasks are implemented and documented;

    (8) Appropriate analysis and non-clinical testing must validate that the device components are found to be non-flammable;

    (9) Appropriate analysis and non-clinical testing must validate that the battery in the device (if applicable) performs as intended over the anticipated service life of the device; and

    (10) Adequate patient labeling is provided to the user to document proper use and maintenance of the device to ensure safe use of the device by the patient in the intended use environment.

    Dated: November 16, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-29633 Filed 11-19-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF STATE 22 CFR Parts 22 and 51 [Public Notice: 9350] RIN 1400-AD76 Elimination of Visa Page Insert Service for U.S. Passport Book Holders AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    On April 29, 2015, the Department of State published a notice of proposed rulemaking (NPRM) that proposed eliminating the visa page insert service for regular fee passport book holders beginning January 1, 2016. The Department is finalizing the proposed rule without change.

    DATES:

    This rule is effective January 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Michael Holly, Passport Services, Bureau of Consular Affairs; 202-485-6373: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    On April 29, 2015, the Department of State published a NPRM that proposed eliminating the visa page insert service for regular fee passport book holders beginning January 1, 2016. See 80 FR 23754. As explained in the NPRM, the effective date of this rule coincides with when the Department expects to begin issuing an updated version of the Next Generation Passport book. The primary reason for eliminating visa page inserts is to protect the integrity of the Next Generation Passport books. Further discussion of the reasons for the rule is in the NRPM.

    Public Comments

    The Department received only one public comment in response to the notice of proposed rulemaking. The following analysis addresses the comment.

    The commenter expressed concern that eliminating visa page inserts would be a considerable inconvenience. The commenter wrote that due to the extent of his travels, eliminating visa page inserts would require him to renew his passport every three or four years, even if he is issued the larger 52-page passport book. The commenter also wrote that running out of visa pages in his passport would cause some of his multi-year visas to expire, requiring him to renew his visas early or possibly carry his expired U.S. passport until the visas in it expire.

    The Department recognizes that eliminating visa page inserts may pose an inconvenience to a very small number of U.S. passport holders whose travel requires the issuance of multiple visas. The Department has a policy in place to permit the issuance of a second regular fee passport to individuals who require their first passport books for travel while their visa applications are pending with foreign governments. (See 7 FAM 1310 Appendix R c(2) http://www.state.gov/documents/organization/94669.pdf).

    The commenter questioned if visa page inserts present a genuine security concern. As described in the NPRM, an interagency working group studied the issue and determined that the elimination of visa page inserts added value to the security features of visa page inserts that far outweighed the inconvenience caused by the elimination of this service, for which there is very limited demand.

    Finally, the problems the commenter describes are very rare among U.S. passport holders. The average U.S. passport holder uses six or fewer visa pages. Ninety-seven percent of all U.S. passport holders will have used 17 pages or less by the time they renew their passports. Less than one percent of U.S. passport holders will have used more than 32 pages when they renew their passports. On average, people who apply for visa page inserts for a U.S. passport do so seven years after the passport was issued and 17 percent of these individuals had the smaller passport book to begin with. Accordingly, while the Department certainly understands the commenter's concerns, it still expects the overall impact of this rule on U.S. passport holders to be minimal, and to be outweighed by the security concerns discussed in the NPRM.

    Regulatory Findings

    The Regulatory Findings included in the NPRM are incorporated herein. See 80 FR at 23755.

    List of Subjects in 22 CFR Parts 22 and 51

    Consular services, Fees, Passports and visas.

    For the reasons stated in the preamble, the Department of State amends 22 CFR parts 22 and 51 as follows:

    PART 22—SCHEDULE OF FEES FOR CONSULAR SERVICES—DEPARTMENT OF STATE AND FOREIGN SERVICE 1. The authority citation for part 22 continues to read as follows: Authority:

    8 U.S.C 1101 note, 1153 note, 1183a note, 1351, 1351 note, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 4219, 6551; 31 U.S.C. 9701; Executive Order 10718, 22 FR 4632; Executive Order 11295, 31 FR 10603.

    § 22.1 [Amended]
    2. The table in § 22.1 is amended by removing and reserving item 2c. PART 51—PASSPORTS 3. The authority citation for part 51 continues to read as follows: Authority:

    8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 570; Sec. 1 of Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat. 3578; Sec. 5 of Pub. L. 109-472, 120 Stat. 3554; Pub. L. 108-447, Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 Stat. 3638, 3823 (Dec. 17, 2004).

    4. In § 51.20, paragraph (a) is revised to read as follows:
    § 51.20 General.

    (a) An application for a passport, a replacement passport, or other passport related service must be completed using the forms the Department prescribes.

    5. In § 51.56, paragraph (a) is revised to read as follows:
    § 51.56 Expedited passport processing.

    (a) Within the United States, an applicant for passport service (including issuance or replacement of a passport) may request expedited processing. The Department may decline the request.

    Dated: November 12, 2015. David T. Donahue, Acting Assistant Secretary for Consular Affairs.
    [FR Doc. 2015-29618 Filed 11-19-15; 8:45 am] BILLING CODE 4710-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-1023] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake (Great Bridge), VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the S168 Bridge (Battlefield Boulevard) across the Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, mile 12.0, at Chesapeake (Great Bridge), VA. This deviation allows the bridge to remain in the closed-to-navigation position to facilitate the annual Chesapeake Christmas Parade.

    DATES:

    This deviation is effective from 4 p.m. on December 5, 2015 until 10 p.m. on December 5, 2015.

    ADDRESSES:

    The docket for this deviation, [USCG-2015-1023], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard; telephone (757) 398-6222, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The City of Chesapeake, VA, who owns and operates the S168 Bridge, has requested a temporary deviation from the current operating regulations to facilitate the annual Chesapeake Christmas Parade. The bridge is a double bascule draw bridge and has a vertical clearance in the closed position of 8 feet above mean high water.

    The current operating schedule is set out in 33 CFR 117.997(g). Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m. on December 5, 2015. The Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal is used by a variety of vessels including U.S. government vessels, small commercial vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and the Atlantic Ocean is the alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impacts caused by this temporary deviation.

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

    Dated: November 16, 2015. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2015-29677 Filed 11-19-15; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2015-0388; FRL-9936-98] RIN 2070-AB27 Significant New Use Rules on Certain Chemical Substances; Withdrawal AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Partial withdrawal of direct final rule.

    SUMMARY:

    EPA is withdrawing significant new use rules (SNURs) promulgated under the Toxic Substances Control Act (TSCA) for three chemical substances, which were the subject of premanufacture notices (PMNs). EPA published these SNURs using direct final rulemaking procedures, which requires EPA to take certain actions if a notice of intent to submit an adverse comment is received. EPA received notices of intent to submit adverse comments regarding the SNURs identified in this document. Therefore, the Agency is withdrawing the direct final rule SNURs identified in this document, as required under the direct final rulemaking procedures.

    DATES:

    This document is effective December 1, 2015.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0388, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC. 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 OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

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

    SUPPLEMENTARY INFORMATION:

    I. Does this action apply to me?

    A list of potentially affected entities is provided in the Federal Register of October 2, 2015 (80 FR 59593) (FRL-9933-30). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    II. What direct final SNURs are being withdrawn?

    In the Federal Register of October 2, 2015, EPA issued direct final SNURs for the chemical substances that are identified in this document. These direct final SNURs were issued under the procedures in 40 CFR part 721, subpart D. Because the Agency received notices of intent to submit adverse comments, in accordance with § 721.160(c)(3)(ii), EPA is withdrawing the direct final SNURs issued for the following chemical substances, which were the subject of PMNs: Isocyanate prepolymer (generic), (PMN No. P-15-221); methylene diisocyanate polymer with diols and triols (generic), (PMN No. P-15-247); and polymer of isophorone diisocyanate and amine-terminated propoxylatedpolyol (generic), (PMN No. P-15-278). EPA intends to publish proposed SNURs for the chemical substances identified in this document.

    For further information regarding EPA's direct final rulemaking procedures for issuing SNURs, see 40 CFR part 721, subpart D, and the Federal Register of July 27, 1989 (54 FR 31314).

    III. Statutory and Executive Order Reviews

    This action withdraws regulatory requirements that have not gone into effect and which contain no new or amended requirements. As such, the Agency has determined that this action will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rule were discussed in the Federal Register of October 2, 2015. Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

    IV. Congressional Review Act (CRA)

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects 40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

    40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: November 12, 2015. Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 9—[AMENDED] 1. The authority citation for part 9 continues to read as follows: Authority:

    7 U.S.C. 135 et seq., 136-136y;15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048.

    § 9.1 [Amended]
    2. In the table in § 9.1, under the undesignated center heading “Significant New Uses of Chemical Substances,” remove §§ 721.10871, 721.10873, and 721.10874.
    PART 721—[AMENDED] 3. The authority citation for part 721 continues to read as follows: Authority:

    15 U.S.C. 2604, 2607, and 2625(c).

    §§ 721.10871 [Removed]
    4. Remove §§ 721.10871.
    §§ 721.10873 and 721.10874 [Removed]
    5. Remove §§ 721.10873 and 721.10874.
    [FR Doc. 2015-29596 Filed 11-19-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0194; FRL-9935-01] Amitraz, Carfentrazone-ethyl, Ethephon, Malathion, Mancozeb, et al.; Tolerance Actions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    EPA is revoking certain tolerances for the fungicides spiroxamine and triflumizole, the herbicides carfentrazone-ethyl and quizalofop ethyl; the insecticides amitraz, oxamyl, propetamphos, and spinosad; the plant growth regulators ethephon and mepiquat; and the tolerance on rice straw for multiple active ingredients. Also, EPA is modifying certain tolerances for the fungicides mancozeb, thiram, and triflumizole. In addition, EPA is establishing new tolerances for the fungicide mancozeb. Also, in accordance with current Agency practice, EPA is making minor revisions to the tolerance expressions for mepiquat and thiram. In addition, EPA is restoring the listings of tolerances on bulb onion and pear for methomyl residues to remedy inadvertent drafting errors and cover existing registrations. EPA is deferring a decision on the malathion tolerances at this time.

    DATES:

    This regulation is effective May 18, 2016, except for the amendments to 40 CFR 180.253 (the restorations of the bulb onion and pear tolerances for methomyl), which are effective November 20, 2015. Objections and requests for hearings must be received on or before January 19, 2016, 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-2014-0194, 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:

    Joseph Nevola, Pesticide Re-Evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-8037; 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 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 the Federal Food, Drug, and Cosmetic Act (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-2014-0194 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 January 19, 2016. 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-2014-0194, 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. Background A. What action is the agency taking?

    In the Federal Register of July 11, 2014 (79 FR 40043) (FRL-9910-45), EPA issued a proposed rule, in follow-up to canceled uses, to revoke specific tolerances for amitraz, carfentrazone-ethyl, ethephon, mepiquat, oxamyl, propetamphos, quizalofop ethyl, spinosad, spiroxamine, and triflumizole. Also, because rice straw is no longer considered by the Agency to be a significant feed item, EPA proposed to revoke the tolerance on rice straw for multiple active ingredients. In follow-up to reregistration, EPA proposed to modify tolerances for malathion and mancozeb, and also establish tolerances for mancozeb, and post-reregistration follow-up to modify specific tolerances for thiram and triflumizole. In addition, the Agency proposed minor revisions to the tolerance expressions for malathion, mepiquat, and thiram. The proposal provided a 60-day comment period.

    Since the proposed rule, in the Federal Register of March 27, 2015 (80 FR 16302) (FRL-9924-86), the Agency published a final rule that removed the expiration/revocation date for the thiram tolerance in 40 CFR 180.132 on banana at 0.80 parts per million (ppm) for thiram residues. Also, in the Federal Register of June 19, 2015 (80 FR 35249) (FRL-9928-82), the Agency published a final rule that established a thiram tolerance in 40 CFR 180.132 on avocado at 15 ppm for thiram residues.

    EPA is finalizing specific mancozeb tolerance actions in order to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report on FQPA Tolerance Reassessment Progress and Interim Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications, to reflect current use patterns, to meet safety findings and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone number: (800) 490-9198; fax number: (513) 489-8695; Internet at http://www.epa.gov/ncepihom and from the National Technical Information Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161; telephone number: (800) 553-6847 or (703) 605-6000; Internet at http://www.ntis.gov. Electronic copies of REDs and TREDs are available on the Internet at http://www.regulations.gov and http://www.epa.gov/pesticides/reregistration/status.htm.

    In this final rule, EPA is revoking certain tolerances and/or tolerance exemptions because either they are no longer needed or are associated with food uses that are no longer registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in the United States. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide active ingredient. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance or tolerance exemption to cover residues in or on imported commodities or legally treated domestic commodities.

    EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States.

    Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A. if one of the following conditions applies:

    1. Prior to EPA's issuance of a FFDCA section 408(f) order requesting additional data or issuance of a FFDCA section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

    2. EPA independently verifies that the tolerance is no longer needed.

    3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under the Food Quality Protection Act (FQPA).

    This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. Among the comments received by EPA, are the following:

    1. General—i. Comment by private citizen. An anonymous comment was received which expressed concerns about the toxicity of pesticides in general.

    Agency response. The commenter did not take issue with the Agency's specific conclusions to revoke, modify, establish tolerances, or revise tolerance expressions. Also, the commenter did not refer to any specific studies which pertain to those conclusions. The Agency has not changed its previous determination that the tolerances in question are safe and is therefore not making any changes in response to these comments.

    2. Specific chemical comments—i. Oxamyl-Comment by DuPont Crop Protection. The commenter requested that the soybean seed tolerance for oxamyl be retained for possible future actions. DuPont noted that since the soybean use was deleted from oxamyl labels in 2006 via EPA's approval of its request for voluntary cancellation, growers have experienced an increasing need for management of soybean cyst nematode.

    Agency response. The use of oxamyl on soybean was officially canceled under section 6(f)(1) of FIFRA, 7 U.S.C. 136d(f)(1), under which a registrant of a pesticide product may request that the product registration be canceled or amended to terminate one or more uses. Because EPA canceled the soybean use in response to DuPont's request, and no other oxamyl products include a use on soybeans, there is currently no legal use of oxamyl on soybeans. EPA will not retain the tolerance based on the possibility that someone may apply for a new use on soybean in the future. Tolerances are generally maintained for current uses. Therefore, EPA is revoking the tolerance for oxamyl in 40 CFR 180.303(a) on soybean, seed.

    EPA is considering the public comments received on malathion in response to the proposed rule of July 11, 2014 and is thus deferring a decision on the malathion tolerances at this time. The Agency will respond to the comments in a future notice to be published in the Federal Register.

    With the exception of malathion and oxamyl, the Agency did not receive any specific comments in the docket, during the 60-day comment period, concerning proposed tolerance actions associated with pesticide active ingredients, as described in the Federal Register of July 11, 2014. Therefore, the exceptions of malathion, EPA is finalizing amendments in the proposed rule of July 11, 2014. Also, EPA is maintaining both the establishment of the thiram tolerance on avocado (now in newly codified 40 CFR 180.132(a)(1) for thiram residues), and the removal of the expiration/revocation date on the thiram tolerance on banana (now in newly codified 40 CFR.180.132(a)(2) for carbon disulfide residues). In addition, EPA is finalizing the amendments in the proposed rule of July 11, 2014 for thiram tolerances on apple, banana, peach, and strawberry (now in newly codified 40 CFR 180.132(a)(2) for carbon disulfide residues). For a detailed discussion of the Agency's rationale for the finalized tolerance actions, refer to the proposed rule of July 11, 2014.

    In this final rule EPA is also making corrections to two unrelated provisions. In the Federal Register of May 9, 2012 (77 FR 27164) (FRL-9345-2), EPA issued a proposed rule covering multiple pesticide active ingredients, including methomyl. In that rule, in order to conform to current Agency practice, EPA proposed to revise the tolerance commodity terminology, in 40 CFR 180.253 for methomyl, for vegetable, root (an outdated term) at 0.2(N) ppm to vegetable, root and tuber, group 1 at 0.2 ppm. Also, EPA proposed to make minor revisions to the tolerance expressions for methomyl in 40 CFR 180.253(a) and (c). In follow-up, EPA promulgated a final rule in the Federal Register of September 26, 2012 (77 FR 59120) (FRL-9358-8) with an effective date of March 25, 2013. However, the outdated tolerance term “vegetable, root” had covered the use on bulb onions. Therefore, the terminology revision by EPA inadvertently removed a tolerance which covered methomyl residues in or on bulb onions. Also, while EPA revised the methomyl tolerance expressions in 180.253(a) and (c), EPA inadvertently removed the table under paragraph (c), which contained an entry for a regional tolerance on pear at 4 ppm. Yet, active registrations for use of methomyl on bulb onions and pears existed at that time and now. Consequently, in this final rule, EPA is restoring coverage for methomyl residues on the bulb onion commodity as an individual tolerance in 40 CFR 180.253(a) for onion, dry bulb at 0.2 ppm and in 40 CFR 180.253(c) on pear at 4 ppm.

    EPA is issuing these tolerance actions for methomyl in this final rule for this purpose without notice and opportunity to comment. Section 553(b)(3)(B) of the Administrative Procedure Act provides that notice and comment is not necessary “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” EPA finds good cause here because restoring the listings of tolerance coverages on bulb onion and pear for methomyl residues merely corrects two inadvertent drafting errors. As such, notice and comment is unnecessary.

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

    EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made in the RED for mancozeb during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides.

    C. When do these actions become effective?

    As stated in the DATES section, this regulation is effective May 18, 2016, except for the restorations of the bulb onion and pear tolerances for methomyl, which are effective November 20, 2015. With the exception of methomyl, for which EPA is restoring tolerances inadvertently removed, EPA is delaying the effective date of these finalized actions to allow a reasonable interval for producers in exporting members of the World Trade Organization's Sanitary and Phytosanitary Measures Agreement to adapt to the requirements of a final rule. EPA believes that existing stocks of the canceled or amended pesticide products labeled for the uses associated with the revoked tolerances have been completely exhausted and that treated commodities have had sufficient time for passage through the channels of trade.

    Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this unit, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

    1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA.

    2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

    III. 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 carfentrazone-ethyl, mepiquat, propetamphos, quizalofop ethyl, spiroxamine, triflumizole, ethephon in or on cucumber, oxamyl in or on soybean seed, spinosad in or on coriander leaves, or total dithiocarbamates in or on barley bran, barley flour, field corn grain, oat flour, oat grain, rye bran, rye grain, wheat bran, wheat flour, and wheat, shorts.

    The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including barley and wheat, each at 1 milligrams/kilogram (mg/kg). These MRLs are the same as the tolerances finalized for mancozeb in the United States.

    The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including papaya at 5 mg/kg. This MRL will be covered by a finalized U.S. tolerance at a higher level than the MRL. The MRL is different than the finalized U.S. tolerance for mancozeb in the United States because of differences in residue definition, use patterns, and/or good agricultural practices.

    The Codex has established a MRL for amitraz in or on various commodities, including cotton seed at 0.5 mg/kg. This MRL is covered by the current U.S. tolerance at a higher level than the MRL, but would no longer be covered due to the revocation of the U.S. tolerance.

    The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including banana at 2 mg/kg, peach at 7 mg/kg, and strawberry at 5 mg/kg. The MRLs for banana and peach are the same as the U.S. tolerances proposed for thiram in the United States. The MRL for strawberry will be covered by a finalized U.S. tolerance at a higher level than the MRL. The MRL for strawberry is different than the tolerance finalized for thiram in the United States because of differences in use patterns, and/or good agricultural practices.

    IV. Statutory and Executive Order Reviews

    In this final rule, EPA establishes tolerances under FFDCA section 408(e), and also modifies and revokes specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (i.e., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule 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). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.). Nor does it require any special considerations as required by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). 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 of 1995 (NTTAA) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published in the Federal Register on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis and available information concerning the pesticides listed in this rule, the Agency hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of the proposed rule). Furthermore, for the pesticides named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

    V. 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. Jack E. Housenger, Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.132, revise paragraph (a) to read as follows:
    § 180.132 Thiram; tolerances for residues.

    (a) General. (1) A tolerances for residues of the fungicide thiram (tetramethyl thiuram disulfide), including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance level specified in this paragraph is to be determined by measuring only thiram.

    Commodity Parts
  • per million
  • Avocado 1 15 1 No U.S. registrations as of September 23, 2009.

    (2) Tolerances are established for residues of the fungicide thiram, tetramethyl thiuram disulfide, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only those thiram residues convertible to and expressed in terms of the degradate carbon disulfide, in or on the commodity.

    Commodity Parts
  • per million
  • Apple 5 Banana 1 2.0 Peach 7.0 Strawberry 13 1 There are no U.S. registrations as of September 23, 2009.
    § 180.142 [Amended]
    3. In § 180.142, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.169 [Amended]
    4. In § 180.169, remove the entry for “Rice, straw” from the table in paragraph (a)(1). 5. In § 180.176, revise the table in paragraph (a) to read as follows:
    § 180.176 Mancozeb; tolerances for residues.

    (a) * * *

    Commodity Parts
  • per million
  • Almond 0.1 Almond, hulls 4 Apple 0.6 Asparagus 0.1 Atemoya 3.0 Banana 2 Barley, bran 2 Barley, flour 1.2 Barley, grain 1 Barley, hay 30 Barley, pearled barley 20 Barley, straw 25 Beet, sugar, dried pulp 3.0 Beet, sugar, roots 1.2 Beet, sugar, tops 60 Broccoli 7 Cabbage 9 Canistel 15.0 Cattle, kidney 0.5 Cattle, liver 0.5 Cherimoya 3.0 Corn, field, forage 40 Corn, field, grain 0.06 Corn, field, stover 15 Corn, pop, grain 0.1 Corn, pop, stover 40 Corn, sweet, forage 70 Corn, sweet, kernel plus cob with husks removed 0.1 Corn, sweet, stover 40 Cotton, undelinted seed 0.5 Crabapple 0.6 Cranberry 5 Custard apple 3.0 Fennel 2.5 Flax, seed 0.15 Ginseng 1.2 Goat, kidney 0.5 Goat, liver 0.5 Grape 1.5 Hog, kidney 0.5 Hog, liver 0.5 Horse, kidney 0.5 Horse, liver 0.5 Lettuce, head 3.5 Lettuce, leaf 18 Mango 15.0 Oat, flour 1.2 Oat, grain 1 Oat, groats/rolled oats 20 Oat, hay 30 Oat, straw 25 Onion, bulb 1.5 Papaya 9 Peanut 0.1 Peanut, hay 65 Pear 0.6 Pepper 12 Potato 0.2 Poultry, kidney 0.5 Poultry, liver 0.5 Quince 0.6 Rice, grain 0.06 Rye, bran 2 Rye, flour 1.2 Rye, grain 1 Rye, straw 25 Sapodilla 15.0 Sapote, mamey 15.0 Sapote, white 15.0 Sheep, kidney 0.5 Sheep, liver 0.5 Sorghum, grain, forage 0.15 Sorghum, grain, grain 0.25 Sorghum, grain, stover 0.15 Star apple 15.0 Sugar apple 3.0 Tangerine 1 10 Tomato 2.5 Vegetable, cucurbit, group 9 2.0 Walnut 0.70 Wheat, bran 2 Wheat, flour 1.2 Wheat, germ 20 Wheat, grain 1 Wheat, hay 30 Wheat, middlings 20 Wheat, shorts 2 Wheat, straw 25 1 There are no U.S. registrations for use of mancozeb on tangerine.
    § 180.205 [Amended]
    6. In § 180.205, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.253 [Amended]
    7. In § 180.253, add alphabetically an entry for “Onion, dry bulb” to the table in paragraph (a), and add a table to paragraph (c) to read as follows:
    § 180.253 Methomyl; tolerances for residues.

    (a) * * *

    Commodity Parts
  • per million
  • Expiration/
  • Revocation date
  • *         *         *         *         *         *         * Onion, dry bulb 0.2 None. *         *         *         *         *         *         *

    (c) * * *

    Commodity Parts
  • per million
  • Pear 4
    § 180.274 [Amended]
    8. In § 180.274, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.287 [Amended]
    9. In § 180.287, remove the entry for “Cotton, undelinted seed 1” and the footnote from the table in paragraph (a).
    § 180.288 [Amended]
    10. In § 180.288, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.293 [Amended]
    11. In § 180.293, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.300 [Amended]
    12. In § 180.300, remove the entry for “Cucumber” from the table in paragraph (a).
    § 180.301 [Amended]
    13. In § 180.301, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.303 [Amended]
    14. In § 180.303, remove the entry for “Soybean, seed” from the table in paragraph (a).
    § 180.355 [Amended]
    15. In § 180.355, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.361 [Amended]
    16. In § 180.361, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.377 [Amended]
    17. In § 180.377, remove the entry for “Rice, straw” from the table in paragraph (a)(2).
    § 180.383 [Amended]
    18. In § 180.383, remove the entry for “Rice, straw” from the table in paragraph (a). 19. In § 180.384, revise paragraph (a) to read as follows:
    § 180.384 Mepiquat (N,N-dimethylpiperidinium); tolerances for residues.

    (a) General. Tolerances are established for residues of the plant growth regulator mepiquat, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only mepiquat, N,N-dimethylpiperidinium, in or on the commodity.

    Commodity Parts
  • per million
  • Cattle, meat byproducts 0.1 Cotton, gin byproducts 6.0 Cotton, undelinted seed 2.0 Goat, meat byproducts 0.1 Grape 1.0 Grape, raisin 5.0 Hog, meat byproducts 0.1 Horse, meat byproducts 0.1 Sheep, meat byproducts 0.1
    § 180.399 [Amended]
    20. In § 180.399, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.401 [Amended]
    21. In § 180.401, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.417 [Amended]
    22. In § 180.417, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.418 [Amended]
    23. In § 180.418, remove the entry for “Rice, straw” from the table in paragraph (a)(2).
    § 180.425 [Amended]
    24. In § 180.425, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.434 [Amended]
    25. In § 180.434, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.438 [Amended]
    26. In § 180.438, remove the entry for “Rice, straw” from the table in paragraph (a)(1) and from the table in paragraph (a)(2).
    § 180.439 [Amended]
    27. In § 180.439, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.441 [Amended]
    28. In § 180.441, remove the entry for “Soybean, soapstock” from the table in paragraph (a)(1).
    § 180.445 [Amended]
    29. In § 180.445, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.447 [Amended]
    30. In § 180.447, remove the entry for “Rice, straw” from the table in paragraph (a)(2).
    § 180.451 [Amended]
    31. In § 180.451, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.463 [Amended]
    32. In § 180.463, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.473 [Amended]
    33. In § 180.473, remove the entry for “Rice, straw” from the table in paragraph (a). 34. In § 180.476, revise the table in paragraph (a)(1) and revise the table in paragraph (a)(2) to read as follows:
    § 180.476 Triflumizole; tolerances for residues.

    (a) * * *

    (1) * * *

    Commodity Parts
  • per million
  • Berry, low growing, subgroup 13-07G, except cranberry 2.0 Brassica, head and stem, subgroup 5A 8.0 Brassica, leafy greens, subgroup 5B 40 Canistel 2.5 Cherry, sweet 1.5 Cherry, tart 1.5 Cilantro, leaves 35 Fruit, pome, group 11-10 0.50 Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F 2.5 Hazelnut 0.05 Hop, dried cones 50 Leafy greens subgroup 4A, except spinach 35 Mango 2.5 Papaya 2.5 Pineapple 4.0 Sapodilla 2.5 Sapote, black 2.5 Sapote, mamey 2.5 Star apple 2.5 Swiss chard 18 Tomato 1.5 Turnip, greens 40 Vegetable, cucurbit, group 9 0.5

    (2) * * *

    Commodity Parts
  • per million
  • Cattle, fat 0.10 Cattle, meat byproducts 0.20 Goat, fat 0.10 Goat, meat byproducts 0.20 Horse, fat 0.10 Horse, meat byproducts 0.20 Sheep, fat 0.10 Sheep, meat byproducts 0.20
    § 180.479 [Amended]
    35. In § 180.479, remove the entry for “Rice, straw” from the table in paragraph (a)(2).
    § 180.484 [Amended]
    36. In § 180.484, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.495 [Amended]
    37. In § 180.495, remove the entry for “Coriander, leaves” from the table in paragraph (a).
    § 180.507 [Amended]
    38. In § 180.507, remove the entry for “Rice, straw” from the table in paragraph (a)(1).
    § 180.515 [Amended]
    39. In § 180.515, remove the entries for “Caneberry subgroup 13A,” “Cotton, hulls,” “Cotton, meal,” “Cotton, refined oil” and “Rice, straw” from the table in paragraph (a).
    § 180.517 [Amended]
    40. In § 180.517, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.541 [Removed]
    41. Remove § 180.541.
    § 180.555 [Amended]
    42. In § 180.555, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.570 [Amended]
    43. In § 180.570, remove the entry for “Rice, straw” from the table in paragraph (a)(2).
    § 180.577 [Amended]
    44. In § 180.577, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.602 [Amended]
    45. In § 180.602, remove the entry for “Hop, dried cones” from the table in paragraph (a).
    § 180.605 [Amended]
    46. In § 180.605, remove the entry for “Rice, straw” from the table in paragraph (a).
    § 180.625 [Amended]
    47. In § 180.625, remove the entry for “Rice, straw” from the table in paragraph (a).
    [FR Doc. 2015-28491 Filed 11-19-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 225, and 252 [Docket DARS-2015-0024] RIN 0750-AI41 Defense Federal Acquisition Regulation Supplement: Photovoltaic Devices From the United States (DFARS Case 2015-D007) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that revises the restrictions relating to utilization of domestic photovoltaic devices.

    DATES:

    Effective November 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy G. Williams, telephone 571-372-6106; facsimile 571-372-6101.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 30119 on May 26, 2015, to implement section 858 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), which addresses utilization of domestic photovoltaic devices. Three respondents submitted comments on the proposed rule.

    II. Discussion and Analysis A. Summary of Significant Changes From the Proposed Rule

    There are no significant changes from the proposed rule.

    B. Analysis of Public Comments 1. Trade Agreements Act

    Comment: One respondent was very supportive of the exceptions for use of photovoltaic devices from designated countries in acquisitions covered by a Trade agreement. The respondent cited legal reasons for the exception (i.e., section 858 specifically states that the restrictions are “subject to exceptions provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) or otherwise provided by law.” In addition, the respondent considered the preservation of the Trade Agreements Act exception critical to the deployment of photovoltaic devices to meet the needs of the DoD market in a timely and cost-efficient manner.

    Response: Both section 846 and section 858 state that the restrictions are subject to the exceptions provided in the Trade Agreements Act or otherwise provided by law. The Trade Agreements Act (19 U.S.C. 2501 et seq.) provides authority for the President to waive the Buy American Act and other discriminatory provisions (e.g., sections 846 and 858) for eligible products from designated countries. This authority has been delegated to the United States Trade Representative (USTR). The USTR has confirmed that the trade agreements provide an exception to the domestic source restrictions of section 858. Since the Trade Agreements Act exception is specifically provided in law, it remains in the final rule.

    2. Covered Contract a. Enhanced Use Leases

    Comment: One respondent recommended that DoD should clarify that while the real estate procurement action related to the development of photovoltaic generating assets on DoD land is not subject to the DFARS, the purchase of the output of the photovoltaic devices is (1) a separate procurement action; (2) an acquisition under DoD procurement regulations; and (3) a covered contract under section 858. According to the respondent, DoD may accept the provision of payment of utility services as in-kind consideration for leasing DoD real property interests in an amount not less than the fair market value of the leasehold. Although the respondent agreed that the DFARS does not cover land leases, the respondent asserted that a power purchase agreement for the procurement of power generated from a photovoltaic device located on land awarded through enhanced-use lease (EUL) authority, whether a combined procurement or a separate procurement after the EUL is awarded, is not a real estate transaction, but is a covered contract because it is installed on DoD property and is an acquisition subject to the DFARS.

    Response: DoD land leases are not governed by the Federal Acquisition Regulations (FAR) or the DFARS, as the FAR system only covers acquisition of supplies and services. The term “supplies” is defined in the FAR as all property except land or interest in land. Therefore, power generated from a photovoltaic device and provided to an installation as in-kind consideration under a land lease is not governed by the FAR, DFARS, or this rule. Real property transactions are addressed under other authorities. To the extent the DoD is contracting for power through a FAR-type contract, this DFARS provision would apply. A separately signed power purchase agreement for the power generated by a photovoltaic device installed on DoD land outgranted under a DoD lease, is (1) a FAR contract and (2) a covered contract for the purposes of this rule.

    b. Off-Site Power Generation

    Comment: One respondent recommended that DoD should clarify that section 858 applies to covered contracts awarded by DoD components utilizing photovoltaic devices located on off-site, private property, so long as the photovoltaic devices are reserved for the use of DoD for the full economic life of the device.

    Response: The final Regulatory Flexibility Act analysis has been revised to clarify that section 858 applies to DoD when purchasing renewable power generated via photovoltaic devices. DoD can either purchase the photovoltaic devices (own, operate and maintain the devices for their full economic life), enter into Energy Savings Performance Contracts, or enter into power purchase agreements for the purchase of the power output from photovoltaic devices that are installed on DoD land or buildings, or off-site on private land.

    c. Need for Trade Agreements Act Exception

    Comment: According to one respondent, the broadened definition of “covered contract” will further enable expansion of the market transition to utility scale procurement of photovoltaic devices for military use. However, the respondent stated that without the Trade Agreements Act exception, the market will not be able to be served in a timely and efficient manner.

    Response: The Trade Agreements Act exception is specifically provided in law and remains in the final rule.

    3. Definitions a. “Domestic Photovoltaic Device”

    Comment: According to one respondent, the modification of the definition of “domestic photovoltaic device” to include the requirement that the cost of all components mined, produced, or manufactured in the United States must exceed 50 percent of the cost of all components, makes the Trade Agreements Act exception even more essential.

    Response: The Trade Agreements Act exception is specifically provided in law and remains in the final rule.

    b. “Substantial Transformation”

    Comment: One respondent stated that DoD should amend paragraph (c) of the provision at DFARS 252.225-7018, Photovoltaic Devices—Certificate, to explicitly adopt and apply the Department of Commerce's definition of “substantial transformation” for photovoltaic devices, stating that substantial transformation of a photovoltaic device takes place in the country where a photovoltaic device's cell is manufactured.

    Response: The interpretation of “substantial transformation” is outside the scope of this case. Section 858 did not address or modify the meaning of “substantial transformation.” Paragraph (c) of the provision at DFARS 252.225-7018 was not included in the Federal Register notice of the proposed rule under this case. The preamble to the proposed rule under this case specifically stated that the previous rule published to clarify this DoD policy will remain unaffected.

    Paragraph (c) was added to the provision at DFARS 252.225-7017 under DFARS Case 2014-D006, Photovoltaic Devices, to clarify how offerors should assess the rules of origin for photovoltaic devices to be utilized under covered DoD contracts. Paragraph (c) advises offerors to be consistent with country of origin determinations by the U.S. Customs and Border Protection with regard to importation of the same or similar photovoltaic devices into the United States. If the offeror is uncertain as to the origin of a photovoltaic device, the provision directs the offeror to request a determination from U.S. Customs and Border Protection. It is not within the purview of DoD to make such determinations. DoD published the final rule on April 21, 2014, after consultation with the United States Trade Representative and thorough analysis of the public comments received.

    c. “U.S.-Made Photovoltaic Device”

    Comment: One respondent recommended that DoD should revise the definition of U.S.-made photovoltaic device to conform to the other country of origin definitions applicable to photovoltaic devices and require U.S.-made photovoltaic devices to be wholly manufactured or substantially transformed in the United States.

    Response: The FAR was modified in February 2000 (FAC 97-15) to include the term “U.S.-made end product,” defined to mean an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. This term was introduced to provide an opportunity, when an acquisition is subject to the World Trade Organization Government Procurement Agreement, for products made in the United States (which are not designated country end products, and therefore not subject to the trade agreements rules of origin) to compete with designated country end products. Through a public interest class determination, DoD does not apply the Buy American Act to U.S.-made end products if the World Trade Organization Government Procurement Agreement applies. Therefore, when section 846 of the NDAA for FY 2011 required certain covered contracts awarded by DoD to contain a provision requiring the photovoltaic devices provided under the contract to comply with the Buy American Act, subject to the exceptions provided in the Trade Agreements Act of 1979, the DFARS applied the existing public interest class determination to exempt the utilization of U.S.-made photovoltaic devices (treating photovoltaic devices as a specific item fitting within the existing FAR definition of “U.S.-made end products”) from the restrictions of section 846 and the Buy American Act.

    4. Public Interest Determinations a. Impact on Domestic Manufacturing

    Comment: One respondent contended that issuing a public interest waiver as a work around to addressing differing documentation requirements between U.S.-based and designated country photovoltaic manufacturers would reduce the desired connection to domestic manufacturing activities, and therefore presents a suboptimal approach.

    Response: The public interest waiver of section 858 for acquisition of U.S.-made photovoltaic devices was not only to address differing documentation requirements, but to enable acquisition from a broad range of U.S. companies. Section 858 of the NDAA for FY 2015 allows the head of the department concerned to determine, on a case-by-case basis that application of section 858 is not in the public interest. As delegated in this rule, the head of the contracting activity concerned may make such a public interest determination for a variety of reasons. The rule provides a sample determination based on the utilization of a U.S.-made device because this is consistent with existing practice, except that now an individual determination is required each time utilization of U.S.-made devices is proposed. Use of this determination was suggested only when the value of the acquisition exceeds $204,000 and the World Trade Organization Government Procurement Agreement applies. It is in the Government's best interest to foster a competitive environment and encourage manufacturing in the United States.

    b. Time Delay

    Comment: One respondent, while recognizing that public interest determinations can provide flexibility, was concerned that obtaining an individual public interest determination on a case-by-case basis could cause delay in project implementation.

    Response: Section 858 specifically requires approval of public interest determinations on a case-by-case basis. The DFARS rule specifies the head of the contracting activity as approval authority. This approval process is not anticipated to unreasonably delay DoD procurements.

    5. Sanctioned Countries

    Comment: One respondent recommended that the rule should ensure that companies from the list of sanctioned countries should be prohibited from undertaking U.S. military solar projects, regardless of where or how the goods are manufactured.

    Response: Since the FAR and DFARS contain specific implementation of the Office of Foreign Assets Control restrictions and additional title 10, U.S.C., statutory restrictions on contracting with prohibited sources that apply to both DoD prime contractors and to their subcontractors in accordance with flow down provisions, the rule does not need to be modified. Such prohibitions are already effectively implemented in the regulations that apply to contracts awarded by executive branch agencies U.S. Government and to contracts awarded by DoD military departments and defense agencies.

    III. Applicability

    Consistent with the determinations that DoD made with regard to application of the requirements of section 846 of NDAA for FY 2011, this rule does not apply the requirements of section 858 of the NDAA for FY 2015 to contracts at or below the simplified acquisition threshold (SAT), but does apply to contracts for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items.

    A. Applicability to Contracts at or Below the SAT

    41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, Defense Procurement and Acquisition Policy (DPAP), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD did not make that determination. Therefore, this rule does not apply below the simplified acquisition threshold.

    B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations.

    Given that the requirements of section 858 of the NDAA for FY 2015 were enacted to promote utilization of domestic photovoltaic devices, and since photovoltaic devices are generally COTS items, DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts for the acquisition of commercial items, including COTS items, as defined at FAR 2.101. An exception for contracts for the acquisition of commercial items, including COTS items, would exclude the contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

    This rule implements section 858 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), by changing the regulatory coverage on utilization of domestic photovoltaic devices under certain covered contracts.

    The objective of this rule is to further promote utilization of domestic photovoltaic devices under DoD covered contracts, while maintaining compliance with trade agreements, reciprocal defense procurement memoranda of understanding, and DoD policy with regard to the acquisition of designated country photovoltaic devices, qualifying country photovoltaic devices, and U.S.-made photovoltaic devices.

    There were no significant issues raised by the public comments in response to the initial regulatory flexibility analysis. There was one comment on the terminology used to describe the applicability of the rule to small entities, but this did not impact the numerical analysis or the rule itself.

    This rule generally applies at the prime contract level to other than small entities. When purchasing renewable power generated via photovoltaic devices, DoD can either purchase the photovoltaic devices and thereby own, operate, and maintain the devices for their full economic life (already covered in DFARS part 225 under standard Buy American Act/Trade Agreements regulations) or, for example, may do some variation of the following:

    a. Enter into an energy savings performance contract, which is a contracting method in which the contractor provides capital to facilitate energy savings projects and maintains them in exchange for a portion of the energy savings generated. Under this arrangement, the Government would take title to the devices during contract performance or at the conclusion of the contract. For example, the Defense Logistics Agency-Energy uses the master Department of Energy indefinite delivery-indefinite quantity contract and awards task orders off that contract. Of the 16 contractors, all are large businesses. There are subcontracting goals that each contractor has to meet, but the ultimate task order award is made to a large business.

    b. Enter into a power purchase agreement, also referred to as a utility service contract, for the purchase of the power output of photovoltaic devices that are installed on DoD land or buildings, or on private land, but are owned, operated, and maintained by the contractor. At the conclusion of the contract, DoD would either require the contractor to dismantle and remove the photovoltaic equipment or abandon the equipment in place. Prime contractors for this type of contract would generally be large businesses, based on the capital costs involved in these projects. However, many developers tend to subcontract out the majority of work to smaller companies.

    There are approximately 80 manufacturers of photovoltaic devices. We do not currently have data available on whether any of the manufacturers of photovoltaic devices are small entities, because the Federal Procurement Data System does not collect such data on subcontractors.

    There are no new reporting burdens under this rule. There are some negligible variations to the existing reporting burdens. Furthermore, since the prime contractors subject to this rule are other than small businesses, the reporting requirements will not impact small entities.

    However, under section 858, if the aggregate value of the photovoltaic devices to be utilized under a contract is less than $204,000, or unless a waiver is obtained for the utilization of U.S.-made products when the aggregate value of the photovoltaic devices is $204,000 or more, there will be a requirement to track the origin of the components of the domestic photovoltaic devices. However, DoD estimates that most covered contracts will involve utilization of photovoltaic devices with an aggregate value in excess of $204,000 and expects to grant waivers as appropriate.

    DoD did not identify any significant alternatives that meet the requirements of the statute and would have less impact on small entities. The ability for the Government to grant a waiver of section 858 if it is inconsistent with the public interest to preclude utilization of U.S.-made photovoltaic devices when the World Trade Organization Government Procurement Agreement is applicable (i.e., the aggregate value of the photovoltaic devices to be utilized is $204,000 or more) will greatly reduce the burden on manufacturers of photovoltaic devices, regardless of the size of the entity.

    VI. Paperwork Reduction Act

    The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0229, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) Part 225, Foreign Acquisition, and related clauses at DFARS 252.225.”

    List of Subjects in 48 CFR Parts 212, 225, and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:

    1. The authority citation for parts 212, 225, and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 212—ACQUISITION OF COMMERCIAL ITEMS
    2. In section 212.301, revise paragraphs (f)(x)(J) and (f)(x)(K) to read as follows:
    212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

    (f) * * *

    (x) * * *

    (J) Use the clause at 252.225-7017, Photovoltaic Devices, as prescribed in 225.7017-5(a), to comply with section 858 of Public Law 113-291).

    (K) Use the provision at 252.225-7018, Photovoltaic Devices—Certificate, as prescribed in 225.7017-5(b), to comply with section 858 of Public Law 113-291.

    PART 225—FOREIGN ACQUISITION 3. Amend section 225.7017 by— a. Revising sections 225.7017-1 through 225.7017-3; b. Redesignating section 225.7017-4 as 225.7017-5; c. Adding new section 225.7017-4; and d. In the newly redesignated 225.7017-5, revising the section heading and paragraph (a).

    The revisions and addition read as follows:

    225.7017 Utilization of domestic photovoltaic devices.
    225.7017-1 Definitions.

    As used in this section—

    Caribbean Basin country photovoltaic device means a photovoltaic device that—

    (1) Is wholly manufactured in a Caribbean Basin country; or

    (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Caribbean Basin country.

    Covered contract means contract awarded by DoD that, by means other than DoD purchase as end products, provides for a photovoltaic device to be—

    (1) Installed in the United States on DoD property or in a facility owned by DoD; or

    (2) Reserved for the exclusive use of DoD in the United States for the full economic life of the device.

    Designated country photovoltaic device means a World Trade Organization Government Procurement Agreement (WTO GPA) country photovoltaic device, a Free Trade Agreement country photovoltaic device, a least developed country photovoltaic device, or a Caribbean Basin country photovoltaic device.

    Domestic photovoltaic device means a photovoltaic device that—

    (1) Is manufactured in the United States; and

    (2) The cost of its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic.

    Foreign photovoltaic device means a photovoltaic device other than a domestic photovoltaic device.

    Free Trade Agreement country photovoltaic device means a photovoltaic device that—

    (1) Is wholly manufactured in a Free Trade Agreement country; or

    (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Free Trade Agreement country.

    Least developed country photovoltaic device means a photovoltaic device that—

    (1) Is wholly manufactured in a least developed country; or

    (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a least developed country.

    Photovoltaic device means a device that converts light directly into electricity through a solid-state, semiconductor process.

    Qualifying country photovoltaic device means a photovoltaic device manufactured in a qualifying country.

    U.S.-made photovoltaic device means a photovoltaic device that—

    (1) Is manufactured in the United States; or

    (2) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of the United States.

    WTO GPA country photovoltaic device means a photovoltaic device that—

    (1) Is wholly manufactured in a WTO GPA country; or

    (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a WTO GPA country.

    225.7017-2 Restriction.

    In accordance with section 858 of the National Defense Authorization Act for Fiscal Year 2015, photovoltaic devices provided under any covered contract shall be domestic photovoltaic devices, except as provided in 225.7017-3 and 225.7017-4.

    225.7017-3 Exceptions.

    (a) Free Trade Agreements. For a covered contract that utilizes photovoltaic devices valued at $25,000 or more, photovoltaic devices may be utilized from a country covered under the acquisition by a Free Trade Agreement, depending upon dollar threshold (see FAR subpart 25.4).

    (b) World Trade Organization—Government Procurement Agreement. For covered contracts that utilize photovoltaic devices that are valued at $204,000 or more, only domestic photovoltaic devices or designated country photovoltaic devices may be utilized, unless acquisition of U.S.-made or qualifying country photovoltaic devices is allowed pursuant to a waiver in accordance with 225.7017-4(a).

    225.7017-4 Waivers.

    The head of the contracting activity is authorized to waive, on a case-by-case basis, the application of the restriction in 225.7017-2 upon determination that one of the following circumstances applies (see PGI 225.7017-4 for sample determinations and findings):

    (a) Inconsistent with the public interest. For example, a public interest waiver may be appropriate to allow—

    (1) Utilization of U.S.-made photovoltaic devices if the aggregate value of the photovoltaic devices to be utilized under the contract exceeds $204,000; or

    (2) Utilization of photovoltaic devices from a qualifying country, regardless of dollar value.

    (b) Unreasonable cost. A determination that the cost of a domestic photovoltaic device is unreasonable may be appropriate if—

    (1) The aggregate value of the photovoltaic devices to be utilized under the contract does not exceed $204,000; and

    (2) The offeror documents that the price of the foreign photovoltaic devices plus 50 percent is less than the price of comparable domestic photovoltaic devices.

    225.7017-5 Solicitation provision and contract clause.

    (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract that—

    (i) Is expected to exceed the simplified acquisition threshold; and

    (ii) May be a covered contract, i.e., a contract that provides for a photovoltaic device to be—

    (A) Installed in the United States on DoD property or in a facility owned by DoD; or

    (B) Reserved for the exclusive use of DoD in the United States for the full economic life of the device.

    (2) Use the clause in the resultant contract, including contracts using FAR part 12 procedures for the acquisition of commercial items, if it is a covered contract.

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. Amend section 252.225-7017— a. In the introductory text, by removing “225.7017-4(a)” and adding “225.7017-5(a)” in its place; b. By removing the clause date “(OCT 2015)” and adding “(NOV 2015)” in its place; c. In paragraph (a), by removing “an article that” and adding “a photovoltaic device that” in its place wherever it appears, and revising the definition of “Domestic photovoltaic device”; and d. By revising paragraphs (b) and (c).

    The revisions read as follows:

    252.225-7017 Photovoltaic Devices.

    (a) * * *

    Domestic photovoltaic device means a photovoltaic device—

    (i) Manufactured in the United States; and

    (ii) The cost of its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic.

    (b) This clause implements section 858 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).

    (c) Restriction. If the Contractor specified in its offer in the Photovoltaic Devices—Certificate provision of the solicitation that the estimated value of the photovoltaic devices to be utilized in performance of this contract would be—

    (1) Less than $25,000, then the Contractor shall utilize only domestic photovoltaic devices unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(2) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device, then the Contractor shall utilize a qualifying country photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device;

    (2) $25,000 or more but less than $79,507, then the Contractor shall utilize in the performance of this contract only domestic photovoltaic devices unless, in its offer, it specified utilization of Canadian, qualifying country, or other foreign photovoltaic devices in paragraph (d)(3) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Canadian photovoltaic device, then the Contractor shall utilize a qualifying country photovoltaic device or a Canadian photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device;

    (3) $79,507 or more but less than $100,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices or Free Trade Agreement country photovoltaic devices (other than Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(4) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device), then the Contractor shall utilize a qualifying country photovoltaic device; a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) as specified; or, at the Contractor's option, a domestic photovoltaic device;

    (4) $100,000 or more but less than $204,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices or Free Trade Agreement country photovoltaic devices (other than Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(5) of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device), then the Contractor shall utilize a qualifying country photovoltaic device; a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) as specified; or, at the Contractor's option, a domestic photovoltaic device; or

    (5) $204,000 or more, then the Contractor shall utilize under this contract only domestic or designated country photovoltaic devices unless, in its offer, it specified utilization of U.S.-made or qualifying country photovoltaic devices in paragraph (d)(6)(ii) or (iii) respectively of the Photovoltaic Devices—Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a designated country, U.S.-made, or qualifying country photovoltaic device, then the Contractor shall utilize a designated country, U.S.-made, or qualifying country photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device.

    (End of clause)

    5. Amend section 252.225-7018— a. In the introductory text, by removing “225.7017-4(b)” and adding “225.7017-5(b)” in its place; b. By removing the clause date “(OCT 2015)” and adding “(NOV 2015)” in its place; c. By revising paragraph (b); d. In paragraph (c), by removing “(See http://www.cbp.gov/xp/cgov/trade/legal/rulings.)” and adding “(See http://www.cbp.gov/trade/rulings.)” in its place; and e. By revising paragraph (d).

    The revisions read as follows:

    252.225-7018 Photovoltaic Devices—Certificate.

    (b) Restrictions. The following restrictions apply, depending on the estimated aggregate value of photovoltaic devices to be utilized under a resultant contract:

    (1) If less than $204,000, then the Government will not accept an offer specifying the use of—

    (i) Other foreign photovoltaic devices in paragraph (d)(2)(iii), (d)(3)(iii), (d)(4)(iii), or (d)(5)(iii) of this provision, unless the offeror documents to the satisfaction of the Contracting Officer that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device and the Government determines in accordance with DFARS 225.217-4(b) that the price of a comparable domestic photovoltaic device would be unreasonable; and

    (ii) A qualifying country photovoltaic device unless the Government determines in accordance with DFARS 225.217-4(a) that it is in the public interest to allow use of a qualifying country photovoltaic device.

    (2) If $204,000 or more, then the Government will consider only offers that utilize photovoltaic devices that are domestic or designated country photovoltaic devices, unless the Government determines in accordance with DFARS 225.7017-4(a) that it is in the public interest to allow use of a qualifying country photovoltaic device from Egypt or Turkey, or a U.S.-made photovoltaic device.

    (d) Certification and identification of country of origin. [The offeror shall check the block and fill in the blank for one of the following paragraphs, based on the estimated value and the country of origin of photovoltaic devices to be utilized in performance of the contract:]

    __(1) No photovoltaic devices will be utilized in performance of the contract.

    (2) If less than $25,000—

    __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device;

    __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device [Offeror to specify country of origin__]; or

    __(iii) The foreign (other than qualifying country) photovoltaic devices to be utilized in performance of the contract are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. , that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.]

    (3) If $25,000 or more but less than $79,507—

    __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Canadian photovoltaic device [Offeror to specify country of origin__];

    __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device [Offeror to specify country of origin__]; or

    __(iii) The foreign (other than qualifying country or Canadian) photovoltaic devices to be utilized in performance of the contract are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. , that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.]

    (4) If $79,507 or more but less than $100,000—

    __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) [Offeror to specify country of origin__];

    __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device (except an Australian or Canadian photovoltaic device, to be listed in paragraph (d)(4)(i) of this provision as a Free Trade Agreement country photovoltaic device) [Offeror to specify country of origin__]; or

    __(iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(4)(i) or (d)(4)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. , that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.]

    (5) If $100,000 or more but less than $204,000—

    __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) [Offeror to specify country of origin__];

    __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device (except an Australian or Canadian photovoltaic device, to be listed in paragraph (d)(5)(i) of this provision as a Free Trade Agreement country photovoltaic device) [Offeror to specify country of origin__]; or

    __(iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(5)(i) or (d)(5)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e. , that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.]

    (6) If $204,000 or more, the Offeror certifies that each photovoltaic device to be used in performance of the contract is—

    __(i) A domestic or designated country photovoltaic device [Offeror to specify country of origin__];

    __(ii) A U.S.-made photovoltaic device; or

    __(iii) A qualifying country photovoltaic device from Egypt of Turkey (photovoltaic devices from other qualifying countries to be listed in paragraph (d)(6)(i) of this provision as designated country photovoltaic devices). [Offeror to specify country of origin__.]

    (End of provision)
    [FR Doc. 2015-29551 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 216 [Docket DARS-2015-0048] RIN 0750-AI73 Defense Federal Acquisition Regulation Supplement: Eliminate Data Collection Requirement (DFARS Case 2015-D031) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to eliminate a requirement for military departments and defense agencies to collect and report relevant data on award and incentive fees paid to contractors.

    DATES:

    Effective November 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Tresa Sullivan, telephone 571-372-6089.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 814 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) requires that DoD provide guidance on the appropriate use of award and incentive fees in DoD acquisition programs, including the requirement to ensure that DoD collects relevant data on award and incentive fees paid to contractors and has mechanisms in place to evaluate such data on a regular basis. DFARS 216.401-70, Data collection, states this latter requirement of section 814. Previously, DoD collected award and incentive fee data semiannually by a manual data call from the DoD components, which was very labor-intensive. On April 6, 2015 (80 FR 18323), DoD removed from DFARS 216.401-70 the requirement to follow the reporting requirements in the associated DFARS Procedures, Guidance, and Information, because DoD can now obtain relevant data through peer reviews and other sources, such as the Contract Business Analysis Repository (CBAR). This final rule removes the remaining statement about the statutory requirements of section 814. Retention of this statement in the DFARS is no longer necessary, because there is no longer a need to collect data directly from the contracting officer or other members of the contracting community in the military departments or defense agencies.

    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it deletes an unnecessary statement from the DFARS. This revision has no significant effect beyond the internal operating procedures of the Government and has no cost or administrative impact on contractors or offerors.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 216

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 216 is amended as follows:

    PART 216—TYPES OF CONTRACTS 1. The authority citation for 48 CFR part 216 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    216.401-70 [Removed]
    2. Remove section 216.401-70.
    [FR Doc. 2015-29556 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 217 and 225 Defense Federal Acquisition Regulation Supplement; Technical Amendments AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes.

    DATES:

    Effective November 20, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6115; facsimile 571-372-6094.

    SUPPLEMENTARY INFORMATION:

    This final rule amends the DFARS as follows—

    1. Updates point of contact information for the Deputy Director, Defense Procurement and Acquisition Policy (Contract Policy and International Contracting) at DFARS 217.7402(b) by providing an email address in lieu of a physical mailing address; and

    2. Removes a reference to Procedures, Guidance, and Information (PGI) at DFARS 225.7703-3(d).

    List of Subjects in 48 CFR 217 and 225

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 217 and 225 are amended as follows:

    1. The authority citation for 48 CFR parts 217 and 225 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 217—SPECIAL CONTRACTING METHODS
    217.7402 [Amended]
    2. In section 217.7402, amend paragraph (b) by— a. Adding “electronically via email” after “channels,”; and b. Removing “3060 Defense Pentagon, Washington, DC 20301-3060” and adding “at [email protected]” in its place.
    PART 225—SPECIAL CONTRACTING METHODS
    225.7703-3 [Amended]
    3. In section 225.7703-3, remove paragraph (d).
    [FR Doc. 2015-29559 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    80 224 Friday, November 20, 2015 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket Number EERE-2014-BT-STD-0027] RIN 1904-AD31 Energy Conservation Standards for Commercial Prerinse Spray Valves: Availability of Provisional Analysis Tools AGENCY:

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

    ACTION:

    Notice of data availability (NODA); withdrawal and republication.

    SUMMARY:

    The U.S. Department of Energy (DOE) is withdrawing and republishing the Notice of Data Availability (NODA) published in the Federal Register on November 12, 2015 (80 FR 69888) due to errors in that published document. DOE is republishing this document in its entirety. DOE published a notice of proposed rulemaking (NOPR) for the commercial prerinse spray valve (CPSV) energy conservation standards rulemaking on July 9, 2015. In response to comments on the NOPR, DOE has revised its analyses. This NODA announces the availability of those updated analyses and results, and gives interested parties an opportunity to comment on these analyses and submit additional data. The NODA analysis is publicly available on the DOE Web site.

    DATES:

    DOE will accept comments, data, and information regarding this NODA submitted no later than December 4, 2015. See section IV, “Public Participation,” for details.

    ADDRESSES:

    Any comments submitted must identify the NODA for Energy Conservation Standards for commercial prerinse spray valves, and provide docket number EERE-2014-BT-STD-0027 and/or regulatory information number (RIN) number 1904-AD31. Comments may be submitted using any of the following methods:

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

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

    3. Postal Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    No faxes will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section IV of this document (“Public Participation”).

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

    A link to the docket Web page can be found at: www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx?ruleid=100. This Web page will contain a link to the docket for this notice on the www.regulations.gov site. The www.regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket. See section IV, “Public Participation,” for further information on how to submit comments through www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mr. James Raba, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8654. Email: [email protected] Mr. Peter Cochran, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email: [email protected]. For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected] SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Summary of the Analyses Performed by the Department of Energy A. Engineering Analysis 1. Summary of Engineering Updates for the NODA B. Life-Cycle Cost and Payback Period Analysis C. National Impact Analysis D. Manufacturer Impact Analysis III. Results of the Economic Analyses A. Economic Impacts on Consumers B. Economic Impacts on the Nation C. Economic Impacts on Manufacturers IV. Public Participation A. Submission of Comments V. Approval of the Office of the Secretary I. Background

    DOE published a notice of proposed rulemaking (NOPR) proposing amended energy conservation standards for commercial prerinse spray valves (CPSVs) on July 9, 2015 (CPSV NOPR). 80 FR 39485. The CPSV NOPR proposed new CPSV product classes based on spray force, and presented results for the engineering analysis, economic analyses, and proposed standard levels. DOE held a public meeting on July 28, 2015 to present the CPSV NOPR. At the public meeting, and during the comment period, DOE received comments on various aspects of the CPSV NOPR.

    In response to these comments, DOE has revised the analyses presented in the CPSV NOPR. This notice of data availability (NODA) announces the availability of those updated analyses and results and invites interested parties to submit comments on these analyses or additional data. DOE may further revise the analysis presented in this rulemaking based on any new or updated information or data it obtains during the course of the rulemaking. DOE encourages stakeholders to provide any additional data or information that may improve the analysis.

    II. Summary of the Analyses Performed by the Department of Energy

    DOE conducted analyses of commercial prerinse spray valves in the following areas: (1) Engineering, (2) manufacturer impacts, (3) life-cycle cost and payback period, and (4) national impacts. The spreadsheet tools used in preparing these analyses are available at: http://www.regulations.gov/#!docketDetail;D=EERE-2014-BT-STD-0027. Each individual spreadsheet includes an introduction describing the various inputs and outputs for the analysis, as well as operation instructions. A brief description of each of these analysis tools is provided below. The key aspects of the present analyses and DOE's updates to the CPSV NOPR analyses are described in the following sections.

    A. Engineering Analysis

    The engineering analysis establishes the relationship between the manufacturer production cost (MPC) and efficiency levels (ELs) for each product class of commercial prerinse spray valves. This relationship serves as the basis for cost-benefit calculations performed in the other three analysis tools for individual consumers, manufacturers, and the nation.

    In the CPSV NOPR, DOE proposed three product classes that were delineated by spray force. DOE analyzed several ELs associated with specific flow rates for each product class. DOE received feedback from interested parties opposing the three product class structure and recommending a single product class. (Chicago Faucets, No. 26 at pp. 1-2; 1 PMI, No. 27 at p. 1; Fisher, No. 30 at p. 1; ASAP, NEEA, NRDC, No. 32 at p. 1; PG&E, SCE, SCGC, SDG&E, No. 34 at p. 1-2; AWE, No. 28 at p. 7; and T&S Brass, No. 33 at p. 2)

    1 A notation in this form provides a reference for information that is in DOE's rulemaking docket to amend energy conservation standards for commercial prerinse spray valves (Docket No. EERE-2014-BT-STD-0027, which is maintained at www.regulations.gov). This particular notation refers to a comment from Chicago Faucets on pp. 1-2 of document number 6 in the docket.

    DOE is required by EPCA to consider performance-related features that justify different standard levels, such as features affecting customer utility, when establishing or amending energy conservation standards. 42 U.S.C. 6295(q)) In response to comments from interested parties, DOE reviewed the market for commercial prerinse spray valves and available data regarding their typical performance and usage characteristics in different applications.

    DOE market research shows that commercial prerinse spray valves have a range of flow rates, spray forces, and spray shapes. For example, manufacturers market commercial prerinse spray valves at lower flow rates with specific terminology such as “ultra-low-flow” or “low-flow” spray valves, indicating that there are diverse products available to satisfy different consumer needs when selecting commercial prerinse spray valves. Conversely, for commercial prerinse spray valves at higher flow rates, DOE has predominately observed shower-type units. Shower-type units contain multiple orifices, as opposed to the more traditional, single-orifice CPSV unit. In the CPSV NOPR public meeting, T&S Brass stated that consumer satisfaction is very high at the upper range of the market flow rate distribution, and that the shower-type commercial prerinse spray valves in the upper range of the market flow rate distribution represent the majority of the market and highest level of customer satisfaction because these units prevent splash-back. (T&S, No. 23 at pp. 42-43) T&S Brass also commented that there are several applications of commercial prerinse spray valves, and all may require different spray forces. (T&S Brass, No. 6 at p. 39) Based on the above information, DOE believes that the CPSV market offers a variety of prerinse spray valves that have different design features and different end-user applications.

    Additionally, DOE found a strong linear relationship between spray force and flow rate, indicating that spray force is an important performance-related feature that affects consumer utility. The relationship between spray force and flow rate is presented in the engineering spreadsheet accompanying this NODA. DOE constructed the flow rate-spray force relationship using data primarily from DOE testing, and supplementary data from DOE's Compliance Certification Management System (CCMS), the U.S. Environmental Protection Agency's (EPA) WaterSense® program, and Food Service Technology Center (FSTC) reports.2 Additionally, DOE's research shows that spray force relates to user satisfaction. A WaterSense field study found that low water pressure, or spray force, is a source of user dissatisfaction. WaterSense evaluated 14 commercial prerinse spray valve models and collected 56 consumer satisfaction reviews, of which 9 indicated unsatisfactory performance. Seven of the nine unsatisfactory reviews were attributed, among other factors, to the water pressure, or the user-perceived force of the spray.3 Therefore, DOE concludes that separating commercial prerinse spray valves into product classes based on spray force is justified, because spray force is a performance-related feature that affects consumer utility, and spray force is strongly correlated with flow rate.

    2 DOE compliance certification data for commercial prerinse spray valves available at www.regulations.doe.gov/certification-data/; EPA WaterSense Specification for Commercial Pre-Rinse Spray Valves Supporting Statement. Version 1.0 available at http://www.epa.gov/watersense/partners/prsv_final.html; Food Service Technology Center test data for prerinse spray valves available at www.fishnick.com/equipment/sprayvalves/.

    3 EPA WaterSense, Prerinse Spray Valves Field Study Report, at 24-25 (Mar. 31, 2011) (Available at: www.epa.gov/watersense/docs/final_epa_prsv_study_report_033111v2_508.pdf).

    To determine the number of product classes, DOE tested and analyzed a wide range of CPSV units on the market, spanning multiple manufacturers, flow rates, and spray shapes. Based on DOE's test data and additional market research, DOE found that available CPSV units could be differentiated into three distinct spray force ranges. DOE believes that each spray force range represents a specific CPSV application. This conclusion is supported by comments submitted by T&S Brass to the Framework document, suggesting three product classes: (1) An ultra low-flow commercial prerinse spray valve with a maximum flow rate of 0.8 gallons per minute (gpm), (2) a low-flow commercial prerinse spray valve with flow rates of 0.8 to 1.28 gpm, and (3) a standard commercial prerinse spray valve with flow rates of 1.28 to 1.6 gpm. (T&S Brass, No. 12 at p. 3) Therefore, in this NODA, DOE maintains the three product classes presented in the CPSV NOPR. However, based on feedback from interested parties, DOE renames the product classes as product class 1, 2, and 3 instead of using the terminology “light-duty”, “standard-duty”, and “heavy-duty,” respectively. As defined, product class 1 provides distinct utility for cleaning delicate glassware and removing loose food particles from dishware, product class 2 provides distinct utility for cleaning wet foods, and product class 3 provides distinct utility for cleaning baked-on foods and preserving shower-type units, which prevent splash-back.

    For each of the product classes, DOE determined the spray force ranges based on the CPSV flow rate-spray force linear relationship. Product class 1 includes units with spray force less than or equal to 5 ounce-force (ozf), product class 2 includes units with spray force greater than 5 ozf but less than or equal to 8 ozf, and product class 3 includes units with spray force greater than 8 ozf. DOE selected 8.0 ozf as the spray force cut-off between product class 2 and product class 3 based on test results of commercial prerinse spray valves with shower-type spray shapes. DOE testing showed that the upper range of the market, in terms of flow rate, predominantly includes shower-type units. DOE found that the lowest tested spray force of any shower-type unit was 8.1 ozf. Therefore, to maintain the consumer utility provided by shower-type units, DOE selected 8.0 ozf to differentiate product class 3 units from other commercial prerinse spray valves available on the market. Additionally, this spray force threshold is corroborated by T&S Brass's comments to the Framework document suggesting three product classes. T&S Brass suggested a flow rate cut-off of 1.28 gpm between the “low-flow” and “standard” commercial prerinse spray valves. (T&S Brass, No. 12 at p. 3) The flow rate-spray force linear relationship equates 1.28 gpm to 8.5 ozf. This spray force can be conservatively rounded to 8.0 ozf.

    DOE selected 5.0 ozf as the spray force cut-off between product class 1 and product class 2 based on DOE's test data and market research, which clearly showed a cluster of CPSV units above and below that threshold. One cluster of CPSV units had spray force ranges between 4.1 and 4.8 ozf, and the other cluster was between 5.5 and 7.7 ozf. Therefore, DOE established the threshold between the two classes at 5.0 ozf. This spray force threshold is corroborated by T&S Brass's comment to the Framework document suggesting a flow rate cut-off of 0.80 gpm between the “ultra-low-flow” and “low-flow” commercial prerinse spray valves, which equates to 5.3 ozf using the flow rate-spray force linear relationship. This spray force can be conservatively rounded to 5.0 ozf.

    While DOE acknowledges the comments from interested parties regarding DOE's CPSV product class structure, DOE maintains that all available data and information from manufacturers suggests that: (1) Flow rate and spray force are strongly correlated, and (2) CPSV units with different flow rates or spray forces are available in the market and provide distinct consumer utility in the different applications those units are designed to serve. Therefore, in this NODA, DOE has maintained the product class structure presented in the NOPR, with three product classes differentiated by spray force.

    1. Summary of Engineering Updates for the NODA

    In addition to the product class structure, DOE received comments on a number of assumptions in the engineering analysis presented in the NOPR. In response, DOE conducted additional testing of CPSV units to gather more data on the range of CPSV products available in the market and updated a number of the assumptions in the NOPR engineering analysis. Specifically, DOE's revised updates include the following:

    • Based on new test data, DOE updated the flow rate-spray force relationship, which is presented in the accompanying engineering spreadsheet.

    • Although DOE has observed that for product classes 1 and 2 there are currently no CPSV units at the current federal standard flow rate of 1.6 gpm, DOE acknowledges that such units may exist in the market. Therefore, DOE updated the baseline flow rates for product class 1 and 2 to be the current federal standard flow rate of 1.6 gpm, consistent with the baseline for product class 3.

    • Because the baseline levels for product class 1 and 2 were updated, DOE redefined EL 1 to represent the least efficient CPSV unit within each product class (i.e., the market minimum). DOE defined the market minimum levels to be the higher flow rate of either (1) the tested least-efficient unit or (2) the theoretical least-efficient unit at the intersection of the flow rate-spray force linear relationship and the spray force bounds. In product class 1, DOE identified the market minimum to be 1.00 gpm, which is a tested unit with a flow rate of 0.97 gpm, rounded-up to a whole number. This is greater than the theoretical flow rate at the intersection of the flow rate-spray force linear relationship and the spray force bound of 5.0 ozf, which is 0.75 gpm. In product class 2, DOE identified the market minimum level to be 1.20 gpm, which is the intersection of the flow rate-spray force linear relationship and the 8.0 ozf spray force bound.

    • Based on new test data, DOE revised the maximum technologically-feasible levels (i.e., max-tech) from 0.65, 0.97, and 1.24 gpm to 0.62, 0.73, and 1.13 gpm for product class 1, product class 2 and product class 3, respectively.

    • Based on the updates to the baseline and max-tech levels, DOE updated the intermediate flow rates for product classes 1 and 2 to reflect a 15 percent and 25 percent improvement, respectively, over the market minimum efficiency. Table II.1 through Table II.3 provide the updated ELs for all product classes.

    Table II.1—Efficiency Levels for CPSV Product Class 1 [Spray force ≤ 5 ozf] Efficiency level Description Flow rate
  • gpm
  • Baseline Current Federal standard 1.60 Level 1 Market minimum 1.00 Level 2 15% improvement over market minimum 0.85 Level 3 25% improvement over market minimum 0.75 Level 4 Maximum technologically-feasible (max-tech) 0.62
    Table II.2—Efficiency Levels for CPSV Product Class 2 [5 ozf < Spray force ≤ 8 ozf] Efficiency level Description Flow rate
  • gpm
  • Baseline Current Federal standard 1.60 Level 1 Market minimum 1.20 Level 2 15% improvement over market minimum 1.02 Level 3 25% improvement over market minimum 0.90 Level 4 Maximum technologically-feasible (max-tech) 0.73
    Table II.3—Efficiency Levels for CPSV Product Class 3 [Spray force > 8 ozf] Efficiency level Description Flow rate
  • gpm
  • Baseline Current Federal standard 1.60 Level 1 10% improvement over baseline 1.44 Level 2 WaterSense level; 20% improvement over baseline 1.28 Level 3 Maximum technologically-feasible (max-tech) 1.13
    B. Life-Cycle Cost and Payback Period Analysis

    The life-cycle cost (LCC) and payback period (PBP) analysis determines the economic impact of potential standards on individual consumers. The LCC is the total cost of purchasing, installing and operating a commercial prerinse spray valve over the course of its lifetime. The LCC analysis compares the LCC of a commercial prerinse spray valve designed to meet possible energy conservation standards with the LCC of a commercial prerinse spray valve likely to be installed in the absence of amended standards. DOE determines LCCs by considering (1) total installed cost to the consumer (which consists of manufacturer selling price, distribution chain markups, and sales taxes), (2) the range of annual energy consumption of commercial prerinse spray valves that meet each of the ELs considered as they are used in the field, (3) the operating cost of commercial prerinse spray valves (e.g., energy and water costs), (4) CPSV lifetime, and (5) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms.

    The PBP represents the number of years needed to recover the typically increased purchase price of higher-efficiency commercial prerinse spray valves through savings in operating costs. PBP is calculated by dividing the incremental increase in installed cost of the higher efficiency product, compared to the baseline product, by the annual savings in operating costs. In this analysis, because more efficient products do not cost more than baseline efficiency products, the PBP is zero, meaning that consumers do not have any incremental product costs to recover via lower operating costs.

    For commercial prerinse spray valves, DOE performed an energy and water use analysis that calculated energy and water use of commercial prerinse spray valves at each EL within each product class identified in the engineering analysis. DOE determined the range of annual energy consumption and annual water consumption using the flow rate of each EL within each product class from the engineering analysis, the average annual operating time, and the energy required to heat a gallon of water used at the commercial prerinse spray valve. Recognizing that several inputs to the determination of consumer LCC and PBP are either variable or uncertain (e.g., annual energy consumption, product lifetime, electricity price, discount rate), DOE conducts the LCC and PBP analysis by modeling both the uncertainty and variability in the inputs using a Monte Carlo simulation and probability distributions. The primary outputs of the LCC and PBP analysis are (1) average LCCs, (2) median PBPs, and (3) the percentage of consumers that experience a net cost for each product class and EL. The average annual energy consumption derived in the LCC analysis is used as an input to the National Impact Analysis (NIA).

    C. National Impact Analysis

    The NIA estimates the national energy savings (NES), national water savings (NWS), and the net present value (NPV) of total consumer costs and savings expected to result from potential new standards at each trial standard level (TSL). In this NODA, DOE provides results for a total of five TSLs, one of which uses an alternative shipments scenario. TSLs 1 through 4 utilize a default shipments scenario similar to the shipments scenario presented in the NOPR, while TSL 4a utilizes the alternative shipments scenario. The default and alternative shipments scenarios are discussed later in this section.

    The TSLs analyzed in this NODA are shown in Table II.4. These TSLs were chosen based on the following criteria:

    • TSL 1 represents the first EL above the market minimum for each product class. That is, for product classes 1 and 2, TSL 1 represents EL 2 which is a 15 percent savings above the market minimum. For product class 3, TSL 1 represents EL 1 which is a 10 percent savings above the market minimum (which is also the Federal standard level).

    • TSL 2 represents the second EL above market minimum for each product class. That is, for product classes 1 and 2, TSL 2 represents EL 3 which is a 25 percent savings above the market minimum. For product class 3, TSL 3 represents the WaterSense level, or 20 percent savings above the market minimum (i.e., the Federal standard).

    • TSL 3 represents the minimum flow rates for each product class that would not induce consumers to switch product classes as a result of a standard at those flow rates (as discussed in the CPSV NOPR), and retains shower-type designs. That is, DOE selected the lowest flow rates that would allow consumers to maintain provided utility without purchasing units from a different product class. As discussed in section II.A, DOE believes that spray force and flow rate are strongly correlated and that specific flow rate-spray force combinations represent distinct utility in the market. Therefore, DOE analyzed TSL 3, which exhibits no product class switching, as the TSL that maintains customer utility and availability of products in the marketplace.

    • TSL 4 represents max-tech for all product classes under the default shipments scenario, which assumes the total volume of shipments does not change as a function of the standard level selected. Consumers in product classes 1 and 2 would purchase a compliant CPSV model with flow rates most similar to the flow rate they would purchase in the absence of a standard. This TSL assumes that purchasers of shower-type commercial prerinse spray valves would transition to single orifice CPSV models but recognizes that the utility or usability of compliant CPSV models in those applications may be impacted.

    • TSL 4a represents max-tech for all product classes under an alternative shipments scenario. Since the utility of single-orifice CPSV models may not be equivalent in some applications that previously used shower-type CPSV, this alternative shipments scenario analyzes the case where, rather than accepting the decreased usability of a compliant CPSV model, consumers of shower-type units instead exit the CPSV market and purchase faucets, which have a maximum flow rate of 2.2 gpm under the current federal standard. Thus, shipments of compliant CPSV models are much lower under this TSL and water consumption higher due to increased faucet shipments.

    Table II.4—Efficiency Levels by Product Class and TSL TSL Product class 1 Product class 2 Product class 3 Shipments
  • scenario
  • 1 2 2 1 Default. 2 3 3 2 Default. 3 1 1 2 Default. 4 4 4 3 Default. 4a 4 4 3 Alternate.

    The reported NIA results, in section III.B, reflect the additional testing of units DOE conducted after the NOPR (as discussed in section II.A), and include updated product allocations by product class and EL, as well as updated data sources.

    DOE calculated NES, NWS, and NPV for each TSL as the difference between a no-new-standards case scenario (without amended standards) and the standards case scenario (with amended standards). Cumulative energy savings are the sum of the annual NES determined over the lifetime of commercial prerinse spray valves shipped during the analysis period. Energy savings reported include the full-fuel cycle energy savings (i.e., includes the energy needed to extract, process, and deliver primary fuel sources such as coal and natural gas, and the conversion and distribution losses of generating electricity from those fuel sources). Similarly, cumulative water savings are the sum of the annual NWS determined over the lifetime of commercial prerinse spray valves shipped during the analysis period. The NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and any changes in total installed costs. NPV results are reported for discount rates of 3 percent and 7 percent. Under the alternative shipments scenario, DOE accounts for the energy and water use of CPSV models that remain within the scope of this rule and also accounts for the change in energy or water use for consumers that chose to exit the CPSV market, and instead purchase faucets, as a result of the standard. As a result, realized savings resulting from TSL 4a are reduced compared to savings for TSL 4 under the default shipments scenario.

    To calculate the NES, NWS, and NPV, DOE projected future shipments and efficiency distributions (for each TSL) for each CPSV product class. After further research and consideration of public comments regarding product shipments (T&S, No. 23 at pp. 81), DOE updated its shipments projections from the NOPR to more accurately characterize the CPSV market. The most significant update was allocating more of the overall market share to product class 3 relative to product classes 1 and 2 in the default shipments scenario, and the modeling of an alternative shipments scenario where consumers of shower-type CPSV models do not purchase compliant CPSV models in the standards case and, instead, leave the CPSV market altogether and purchase faucets. Other inputs to the NIA include the estimated CPSV lifetime, final installed costs, and average annual energy and water consumption per unit from the LCC. For detailed NIA results, see Table III.4 and Table III.5.

    D. Manufacturer Impact Analysis

    For the manufacturer impact analysis (MIA), DOE used the Government Regulatory Impact Model (GRIM) to assess the economic impact of potential standards on CPSV manufacturers. DOE developed key industry average financial parameters for the GRIM using publicly available data from corporate annual reports. Additionally, DOE used this and other publicly available information to estimate and account for the aggregate industry investment in capital expenditures and research and development required to produce compliant products at each EL.

    The GRIM uses this information in conjunction with inputs from other analyses including MPCs from the engineering analysis, shipments from the shipments analysis, and price trends from the NIA to model industry annual cash flows from the base year through the end of the analysis period. The primary quantitative output of this model is the industry net present value (INPV), which DOE calculates as the sum of industry cash flows discounted to the present day using industry specific weighted average costs of capital.

    Standards affect INPV by requiring manufacturers to make investments in manufacturing capital and product development, and by a change in the number of shipments. Under potential standards, DOE expects that manufacturers may lose a portion of their INPV, which is calculated as the difference between INPV in the no-new-standards case and in the standards case. DOE examines a range of possible impacts on industry by modeling scenarios with various levels of investment.

    III. Results of the Economic Analyses A. Economic Impacts on Consumers

    Table III.1 through Table III.3 provide LCC and PBP results for all ELs and the corresponding TSLs discussed in section II.C.

    Table III.1—Product Class 1 LCC and PBP Results Product class 1 (spray force ≤ 5 ozf) TSL Efficiency level Average costs
  • 2014$
  • Installed cost First year's
  • operating cost
  • Lifetime
  • operating cost
  • LCC * Simple
  • payback
  • period
  • years
  • 0 76 780 3,566 3,643 0.0 3 1 76 487 2,229 2,305 0.0 1 2 76 414 1,895 1,971 0.0 2 3 76 366 1,672 1,748 0.0 4, 4a 4 76 302 1,382 1,458 0.0 * The average discounted LCC for each EL is calculated assuming that all purchases are for equipment only with that EL. This allows the LCCs for each EL to be compared under the same conditions.
    Table III.2—Product Class 2 LCC and PBP Results Product class 2 (spray force > 5 ozf and ≤ 8 ozf) TSL Efficiency level Average costs
  • 2014$
  • Installed cost First year's
  • operating cost
  • Lifetime
  • operating cost
  • LCC * Simple
  • payback
  • period
  • years
  • 0 76 780 3,566 3,643 0.0 3 1 76 585 2,675 2,751 0.0 1 2 76 497 2,274 2,350 0.0 2 3 76 439 2,006 2,082 0.0 4, 4a 4 76 356 1,627 1,704 0.0 * The average discounted LCC for each EL is calculated assuming that all purchases are for equipment only with that EL. This allows the LCCs for each EL to be compared under the same conditions.
    Table III.3—Product Class 3 LCC and PBP Results Product class 3 (spray force > 8 ozf) TSL Efficiency level Average costs
  • 2014$
  • Installed cost First year's
  • operating cost
  • Lifetime
  • operating cost
  • LCC * Simple
  • payback
  • period
  • years
  • 0 76 780 3,566 3,643 0.0 1 1 76 702 3,210 3,286 0.0 2, 3 2 76 624 2,853 2,929 0.0 4 ** 3 76 551 2,519 2,595 0.0 * The average discounted LCC for each EL is calculated assuming that all purchases are for equipment only with that EL. This allows the LCCs for each EL to be compared under the same conditions. ** LCC results are not presented for TSL 4a since the analysis assumes those consumers have left the CPSV market.
    B. Economic Impacts on the Nation

    Table III.4 provides energy and water impacts associated with each TSL. Table III.5 provides NPV results.

    Table III.4—Commercial Prerinse Spray Valves: Cumulative National Energy and Water Savings for Products Shipped in 2019-2048 TSL Product class National energy savings
  • quads *
  • Primary FFC National water
  • savings
  • billion gal
  • 1 1 (≤5 ozf) 0.008 0.009 10.831 2 (>5 ozf and ≤8 ozf) 0.113 0.123 144.916 3 (>8 ozf) (0.082) (0.089) (105.275) TOTAL TSL 1 0.039 0.043 50.471 2 1 (≤5 ozf) 0.008 0.009 10.831 2 (>5 ozf and ≤8 ozf) 0.244 0.264 311.926 3 (>8 ozf) (0.165) (0.179) (210.875) TOTAL TSL 2 0.087 0.095 111.882 3 1 (≤5 ozf) 0.000 0.000 0.000 2 (>5 ozf and ≤8 ozf) 0.000 0.000 0.000 3 (>8 ozf) 0.093 0.101 119.572 TOTAL TSL 3 0.093 0.101 119.572 4 1 (≤5 ozf) 0.059 0.064 75.815 2 (>5 ozf and ≤8 ozf) 0.196 0.212 250.516 3 (>8 ozf) (0.092) (0.100) (118.272) TOTAL TSL 4 0.163 0.176 208.059 4a 1 (≤5 ozf) 0.059 0.064 75.815 2 (>5 ozf and ≤8 ozf) 0.196 0.212 250.516 3 (>8 ozf) (0.463) (0.502) (593.418) TOTAL TSL 4a (0.208) (0.226) (267.087) * quads = quadrillion British thermal units.
    Table III.5—Commercial Prerinse Spray Valves: Cumulative Net Present Value of Consumer Benefits for Products Shipped in 2019-2048 TSL Product class Net present value
  • billion $2014
  • 7-Percent
  • discount rate
  • 3-Percent
  • discount rate
  • 1 1 (≤5 ozf) $0.067 $0.137 2 (>5 ozf and ≤8 ozf) $0.892 $1.828 3 (>8 ozf) ($0.656) ($1.342) TOTAL TSL 1 $0.303 $0.623 2 1 (≤5 ozf) $0.067 $0.137 2 (>5 ozf and ≤8 ozf) $1.924 $3.943 3 (>8 ozf) ($1.319) ($2.699) TOTAL TSL 2 $0.672 $1.381 3 1 (≤5 ozf) $0.000 $0.000 2 (>5 ozf and ≤8 ozf) $0.000 $0.000 3 (>8 ozf) $0.718 $1.476 TOTAL TSL 3 $0.718 $1.476 4 1 (≤5 ozf) $0.473 $0.968 2 (>5 ozf and ≤8 ozf) $1.539 $3.156 3 (>8 ozf) ($0.763) ($1.557) TOTAL TSL 4 $1.249 $2.568 4a * 1 (≤5 ozf) $0.473 $0.968 2 (>5 ozf and ≤8 ozf) $1.539 $3.156 3 (>8 ozf) ($3.616) ($7.421) TOTAL TSL 4a ($1.604) ($3.297) * In TSL 4a, DOE assumed that the installed costs for faucets and commercial prerinse spray valves are equal.
    C. Economic Impacts on Manufacturers

    Table III.6 provides manufacturer impacts under the sourced materials conversion cost scenario. Table III.7 provides manufacturer impacts under the fabricated materials conversion cost scenario.

    Table III.6—Manufacturer Impact Analysis for Commercial Prerinse Spray Valves Under the Sourced Materials Conversion Cost Scenario Units No-new-
  • standards case
  • Trial standard level 1 2 3 4 4a
    INPV 2014$ MM 8.6 7.7 7.5 8.0 7.1 5.0 Change in INPV ($) 2014$ MM (0.8) (1.1) (0.6) (1.5) (3.6) Change in INPV (%) % (9.9) (12.8) (6.5) (17.4) (41.8) Product Conversion Costs 2014$ MM 1.5 1.8 0.8 2.4 2.4 Capital Conversion Costs 2014$ MM 0.1 0.2 0.2 0.2 0.2 Total Investment Required 2014$ MM 1.6 2.0 1.0 2.6 2.6
    Table III.7—Manufacturer Impact Analysis for Commercial Prerinse Spray Valves Under the Fabricated Materials Conversion Cost Scenario Units No-new-
  • standards case
  • Trial standard level 1 2 3 4 4a
    INPV 2014$ MM 8.6 7.1 6.7 7.4 6.2 4.1 Change in INPV ($) 2014$ MM (1.5) (1.8) (1.1) (2.4) (4.5) Change in INPV (%) % (17.5) (21.4) (13.1) (28.0) (52.3) Product Conversion Costs 2014$ MM 1.5 1.8 0.8 2.4 2.4 Capital Conversion Costs 2014$ MM 0.8 1.0 0.8 1.2 1.2 Total Investment Required 2014$ MM 2.3 2.8 1.6 3.6 3.6
    IV. Public Participation

    While DOE is not requesting comments on specific portions of the analysis, DOE is interested in receiving comments on all aspects of the data and analysis presented in the NODA and supporting documentation that can be found at: https://www1.eere.energy.gov/buildings/appliance_standards/product.aspx/productid/54.

    A. Submission of Comments

    DOE will accept comments, data, and information regarding this notice no later than the date provided in the DATES section at the beginning of this notice. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this notice.

    Submitting comments via www.regulations.gov. The www.regulations.gov Web page will require you to provide your name and contact information. Your contact information will only be viewable to DOE Building Technologies staff. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.

    DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery/courier, or mail. Comments and documents submitted via email, hand delivery, or mail will also be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in portable document format (PDF) (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 and 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two well-marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of data availability.

    Issued in Washington, DC, on November 16, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy. [FR Doc. 2015-29676 Filed 11-19-15; 8:45 am] BILLING CODE 6450-01-P
    FEDERAL ELECTION COMMISSION 11 CFR Part 110 [Notice 2015-11] Candidate Debates AGENCY:

    Federal Election Commission.

    ACTION:

    Notice of Disposition of Petition for Rulemaking.

    SUMMARY:

    The Commission announces its disposition of a Petition for Rulemaking (“petition”) filed on September 11, 2014, by Level the Playing Field. The petition asks the Commission to amend its regulation on candidate debates to revise the criteria governing the inclusion of candidates in presidential and vice presidential candidate debates. The Commission is not initiating a rulemaking at this time.

    DATES:

    November 20, 2015.

    ADDRESSES:

    The petition and other documents relating to this matter are available on the Commission's Web site, www.fec.gov/fosers (reference REG 2014-06), and in the Commission's Public Records Office, 999 E Street NW., Washington, DC 20463.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Robert M. Knop, Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

    SUPPLEMENTARY INFORMATION:

    On September 11, 2014, the Commission received a Petition for Rulemaking from Level the Playing Field regarding the Commission's regulation at 11 CFR 110.13(c). That regulation governs the criteria that debate staging organizations (which the petitioner refers to as “sponsors”) use for inclusion in candidate debates. The regulation requires staging organizations to “use pre-established objective criteria to determine which candidates may participate in a debate” and further specifies that, for general election debates, staging organizations “shall not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate.” 11 CFR 110.13(c). The petition asks the Commission to amend 11 CFR 110.13(c) in two respects: (1) To preclude sponsors of general election presidential and vice presidential debates from requiring that a candidate meet a polling threshold in order to be included in the debate; and (2) to require sponsors of general election presidential and vice presidential debates to have a set of objective, unbiased criteria for debate participation that do not require candidates to satisfy a polling threshold.

    The Commission published a Notice of Availability seeking comment on the petition on November 14, 2014. Candidate Debates, 79 FR 68137. The Commission received 1264 comments in response to that notice. One comment, that of an organization that stages presidential and vice presidential debates, opposed the petition; the remaining comments either supported the petition or took no position thereon.

    The petition and many of the comments supporting it argue that a staging organization's requirement that a candidate meet a polling threshold for inclusion in a debate unfairly benefits major party candidates at the expense of independent and third party candidates. As an alternative, the petition and some of the comments proposed requiring staging organizations to include each candidate who has qualified for the general election ballot in states that collectively have enough Electoral College votes for the candidate to attain the presidency.1 The petition states that this would provide an objective, and more inclusive, criterion preferable to polling thresholds. Other commenters did not necessarily support or oppose the petitioner's proposed alternative but supported a rulemaking to determine if changes are warranted. Still other commenters proposed alternative and additional rule modifications for the Commission's consideration, such as a requirement that debate staging organizations provide the public with information about candidates not included in a debate.

    1 Specifically, the petitioner proposes that a presidential candidate who, at a given date during the election year, has secured ballot access in states that collectively have at least 270 Electoral College votes (of a total possible 538 votes), could potentially qualify to participate in the general election debate.

    The commenter that opposed the petition urged the Commission to continue allowing a debate staging organization substantial discretion in formulating the nonpartisan objective candidate selection criteria of its choice. This commenter further argued that its particular polling thresholds are reasonable and objective selection criteria adopted for nonpartisan reasons and designed to advance voter education. This commenter also asserted that the petitioner's proposed alternative would favor early ballot qualification by candidates with the most resources over more meaningful measures of candidate support and viability.

    The Commission has evaluated the petition and comments and decided not to initiate a rulemaking to amend 11 CFR 110.13(c) at this time.

    As the Commission stated in adopting the current candidate debate rule in 1995, “the purpose of section 110.13 . . . is to provide a specific exception so that certain nonprofit organizations . . . and the news media may stage debates, without being deemed to have made prohibited corporate contributions to the candidates taking part in debates.” Corporate and Labor Organization Activity; Express Advocacy and Coordination with Candidates, 60 FR 64260, 64261 (Dec. 14, 1995).2 Accordingly, the Commission has required that debate “staging organizations use pre-established objective criteria to avoid the real or apparent potential for a quid pro quo, and to ensure the integrity and fairness of the process.” Id. at 64262. In discussing objective selection criteria, the Commission has noted that debate staging organizations may use them to “control the number of candidates participating in . . . a meaningful debate” but must not use criteria “designed to result in the selection of certain pre-chosen participants.” Id. The Commission has further explained that while “[t]he choice of which objective criteria to use is largely left to the discretion of the staging organization,” the rule contains an implied reasonableness requirement. Id. Within the realm of reasonable criteria, the Commission has stated that it “gives great latitude in establishing the criteria for participant selection” to debate staging organizations under 11 CFR 110.13.3 First General Counsel's Report at n.5, MUR 5530 (Commission on Presidential Debates) (May 4, 2005), http://eqs.fec.gov/eqsdocsMUR/000043F0.pdf.

    2See also Funding and Sponsorship of Federal Candidate Debates, 44 FR 76734 (Dec. 27, 1979) (explaining that, through candidate debate rule, costs of staging multi-candidate nonpartisan debates are not contributions or expenditures); 11 CFR 100.92 (excluding funds provided for costs of candidate debates staged under 11 CFR 110.13 from definition of “contribution”); 11 CFR 100.154 (excluding funds used for costs of candidate debates staged under 11 CFR 110.13 from definition of “expenditure”).

    3See Candidate Debates and News Stories, 61 FR 18049 (Apr. 24, 1996) (quoting H.R. Rep. No. 93-1239 at 4 (1974)).

    The Commission has a well-established history of ensuring that corporate contributions are not made to candidates taking part in debates, including by evaluating the objectivity and neutrality of a debate staging organization's selection criteria in the Commission's enforcement process. Enforcement matters regarding that issue have involved a wide range of candidate selection criteria, including polling thresholds (from 5% to 15%), campaign finance activity levels (such as a minimum number of contributors as shown in reports filed with the Commission), campaign engagement levels (such as numbers of yard signs or participation in neighborhood association meetings), ballot access, and office eligibility. See, e.g., First General Counsel's Report at 5 n.5, MUR 5530 (Commission on Presidential Debates) (May 4, 2005), http://eqs.fec.gov/eqsdocsMUR/000043F0.pdf (including 15% polling threshold and ballot access criteria). In each of these matters, the Commission evaluated whether the criteria were objective, pre-established, and not arranged in a manner to promote or advance one candidate over another so as to constitute corporate contributions to the participating candidates.

    In these enforcement matters, the Commission has carefully examined the use of polling thresholds and found that they can be objective and otherwise lawful selection criteria for candidate debates. Indeed, almost two decades ago, the Commission found that a staging organization's use of polling data (among other criteria) did not result in an unlawful corporate contribution, with five Commissioners observing that it would make “little sense” if “a debate sponsor could not look at the latest poll results even though the rest of the nation could look at this as an indicator of a candidate's popularity.” MUR 4451/4473 Commission Statement of Reasons at 8 n.7 (Commission on Presidential Debates) (Apr. 6, 1998), http://www.fec.gov/disclosure_data/mur/4451.pdf#page=459. Citing this statement, one court noted with respect to the use of polling thresholds as debate selection criteria that “[i]t is difficult to understand why it would be unreasonable or subjective to consider the extent of a candidate's electoral support prior to the debate to determine whether the candidate is viable enough to be included.” Buchanan v. FEC, 112 F. Supp. 2d 58, 75 (D.D.C. 2000).

    Because the regulation at issue is designed to provide debate sponsors with discretion within a framework of objective and neutral debate criteria, and because the Commission can evaluate the objectivity and neutrality of a debate sponsor's selection criteria through the enforcement process, the Commission finds that the rulemaking proposed by the petition is not necessary at this time. The Commission concludes that section 110.13(c) in its current form provides adequate regulatory implementation of the corporate contribution ban and is preferable to a rigid rule that would prohibit or mandate use of particular debate selection criteria in all debates. See 11 CFR 200.5(c) (listing desirability of proceeding on case-by-case basis as consideration in declining to initiate rulemaking); see also MUR 4451/4473 Commission Statement of Reasons at 8-9 (Commission on Presidential Debates) (noting that Commission cannot reasonably “question[ ] each and every . . . candidate assessment criterion” but can evaluate “evidence that [such a] criterion was `fixed' or arranged in some manner so as to guarantee a preordained result”).

    The petition and the commenters who support it rely primarily on policy arguments in favor of debate selection criteria that would include more candidates in general election presidential and vice presidential debates. The rule at section 110.13(c), however, is not intended to maximize the number of debate participants; it is intended to ensure that staging organizations do not select participants in such a way that the costs of a debate constitute corporate contributions to the candidates taking part. Corporate and Labor Organization Activity; Express Advocacy and Coordination with Candidates, 60 FR at 64261-62. Staging organizations' use of polling criteria is a reasonable way for a debate staging organization to select and “control the number of candidates participating in . . . a meaningful debate,” id., and to do so in a way that is objective and does not constitute a corporate contribution. A per se rule prohibiting the use of polling criteria is therefore not necessary to prevent debates from constituting unlawful contributions.

    Furthermore, the rule at 11 CFR 110.13(c) already permits the use of criteria by staging organizations that could result in larger numbers of candidates participating in debates. Indeed, the specific criterion that the petition asks the Commission to include in a revised section 110.13(c) is already lawful: A debate staging organization has the discretion to stage a general election presidential or vice presidential debate using selection criteria similar to the Electoral College approach preferred by the petitioner (so long as the organization's reasonable selection criteria are pre-established, objective, and not designed to result in the selection of certain pre-chosen participants). No rule change is necessary to enable that approach, and the petitioner may sponsor a debate using such criteria or persuade a debate sponsor to do so.4

    4 If the petitioner (or another entity) is unsure whether it is a debate “staging organization” as defined in 11 CFR 110.13(a), it may ask the Commission for an advisory opinion on the matter. See, e.g., Advisory Opinion 1988-22 (San Joaquin Republicans) (concluding that advisory opinion requestor, which did not yet have relevant tax status, was not within candidate debate exemption). Similarly, if a debate staging organization wishes to ask the Commission to conclude that its proposed candidate selection criteria are objective and not designed to result in the selection of certain pre-chosen participants (and thus protect itself from a later enforcement action), it may seek an advisory opinion on that question. See 52 U.S.C. 30108(c) (establishing scope of protection of advisory opinions).

    The petition sets forth certain data in support of its argument that the use of polling thresholds as a debate selection criterion by one staging organization “creates a hurdle that third-party and independent candidates cannot reasonably expect to clear,” and therefore is designed to result in the selection of certain pre-chosen participants. Petition at 15. The use of polling data by a single debate staging organization for candidate debates for a single office, however, does not suggest the need for a rule change. The Commission acknowledges that lower (or no) polling threshold selection criteria may open debates to more candidates and that polling thresholds could be used to promote or advance one candidate (or group of candidates) over another. But to the extent that a debate staging organization uses non-objective selection criteria “designed to result in the selection of certain pre-chosen participants,” this would already be unlawful under the Commission's existing regulation. Corporate and Labor Organization Activity; Express Advocacy and Coordination with Candidates, 60 FR at 64262.

    Finally, the Commission notes that the petition focuses on and seeks to amend the rule only with respect to polling threshold criteria in the selection of participants for presidential general election debates. However, the candidate debate rule applies to all debates (primary and general election) “at the presidential, House, and Senate levels.” Funding and Sponsorship of Candidate Debates, 44 FR 39348 (July 5, 1979).5 In the absence of any indication that polling thresholds are inherently unobjective or otherwise unlawful as applied to all federal elections (and the Commission is aware of no such indication),6 the Commission declines to initiate a rulemaking that would impose a nationwide prohibition on the use of such thresholds, or that could result in giving different legal effect to the use of polling criterion in different elections.

    5 Indeed, the Commission has analyzed, in the enforcement context, debate staging organizations' criteria under 11 CFR 110.13(c) at all levels of federal elections. See, e.g., MUR 5650 (Associated Students of the Univ. of Arizona) (Senate debate); MUR 5530 (Commission on Presidential Debates) (presidential general election debates).

    6 The petitioner provided data intended to demonstrate that polling figures are sometimes inaccurate, but the fact that polls can be inaccurate does not mean that a staging organization acts unobjectively by using them.

    For all of the above reasons, the Commission therefore declines to commence a rulemaking to amend the criteria for staging candidate debates in 11 CFR 110.13(c).

    On behalf of the Commission.

    Dated: November 9, 2015. Ann M. Ravel, Chair, Federal Election Commission.
    [FR Doc. 2015-29494 Filed 11-19-15; 8:45 am] BILLING CODE 6715-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-4279; Notice No. 25-15-09-SC] Special Conditions: Gulfstream Aerospace Corporation, Gulfstream GVI Airplane; Non-Rechargeable Lithium Battery Installations AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed special conditions.

    SUMMARY:

    This action proposes special conditions for the Gulfstream Aerospace Corporation GVI airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is non-rechargeable lithium battery systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    Send your comments on or before January 4, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-4279 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

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

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Nazih Khaouly, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2432; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    Gulfstream Aerospace Corporation applied for several changes to Type Certificate No. T00015AT to install non-rechargeable lithium batteries in the Model GVI airplane. The Gulfstream Model GVI airplane is a twin-engine, transport-category airplane with a maximum passenger capacity of 19 and maximum takeoff weight of 99,600 pounds.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations, (14 CFR) 21.101, Gulfstream must show that the design change and areas affected by the change continue to meet the applicable provisions of the regulations listed in Type Certificate No. T00015AT, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations listed in Type Certificate No. T00015AT are 14 CFR part 25 effective February 1, 1965 including Amendments 25-1 through 25-120, 25-122, 25-124, and 25-132. The certification basis also includes certain special conditions, exemptions, and equivalent safety findings that are not relevant to these proposed special conditions.

    In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVI airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Gulfstream Model GIV airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the Gulfstream Model GVI airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

    Novel or Unusual Design Features

    A battery system consists of the battery and any protective, monitoring and alerting circuitry or hardware inside or outside of the battery and venting capability where necessary. For the purpose of these special conditions, we refer to a battery and battery system as a battery. The Gulfstream GVI will incorporate non-rechargeable lithium batteries, which are novel or unusual design features.

    Discussion

    We derived the current regulations governing installation of batteries in transport-category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February 1965. We basically reworded the battery requirements, which are currently in § 25.1353(b)(1) through (b)(4), from the CAR requirements. Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery-cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

    Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy-storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries demonstrated unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

    On July 12, 2013, an event involving a non-rechargeable lithium battery, in an emergency locator transmitter installation, demonstrated unanticipated failure modes. Air Accident Investigations Branch Bulletin S5/2013 describes this event.

    Some other known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

    • Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication-management units, and remote-monitor electronic line-replaceable units (LRU);

    • Cabin safety, entertainment, and communications equipment, including life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

    • Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

    Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

    • Internal failures

    In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

    • Fast or imbalanced discharging

    Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

    • Flammability

    Unlike nickel-cadmium and lead-acid batteries, these batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

    Proposed Special Condition 1 requires that each individual cell within a battery be designed to maintain safe temperatures and pressures. Proposed Special Condition 2 addresses these same issues but for the entire battery. Proposed Special Condition 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrolled increases in temperature or pressure from one cell to adjacent cells.

    Proposed Special Conditions 1 and 2 are intended to ensure that the battery and its cells are designed to eliminate the potential for uncontrolled failures. However, a certain number of failures will occur due to various factors beyond the control of the designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

    Proposed Special Conditions 3, 9, and 10 are self-explanatory, and the FAA does not provide further explanation for them at this time.

    The FAA proposes Special Condition 4 to make it clear that the flammable-fluid fire-protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain electrolyte that is a flammable fluid.

    Proposed Special Condition 5 requires each non-rechargeable lithium battery installation to not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape. Proposed Special Condition 6 requires each non-rechargeable lithium battery installation to have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting these proposed special conditions may be the same, but they are independent requirements addressing different hazards. Proposed Special Condition 5 addresses corrosive fluids and gases, whereas Proposed Special Condition 6 addresses heat.

    Proposed Special Conditions 7 and 8 require non-rechargeable lithium batteries to have automatic means for battery disconnection and control of battery discharge rate due to the fast-acting nature of lithium-battery chemical reactions. Manual intervention would not be timely or effective in mitigating the hazards associated with these batteries.

    These special conditions will apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25-113. Sections 25.1353(b)(1) through (b)(4) at Amendment 25-113 will remain in effect for other battery installations.

    These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Gulfstream Model GVI airplane. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Proposed Special Conditions

    Accordingly, the FAA proposes the following special conditions as part of the type certification basis for Gulfstream Aerospace Corporation Model GVI airplanes.

    Non-Rechargeable Lithium Battery Installations

    In lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25-113, each non-rechargeable lithium battery installation must:

    1. Maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

    2. Prevent the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

    3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

    4. Meet the requirements of § 25.863.

    5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape.

    6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

    7. Be capable of automatically controlling the discharge rate of each cell to prevent cell imbalance, back-charging, overheating, and uncontrollable temperature and pressure.

    8. Have a means to automatically disconnect from its discharging circuit in the event of an over-temperature condition, cell failure or battery failure.

    9. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

    10. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

    Note 1:

    A battery system consists of the battery and any protective, monitoring and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging. For the purpose of these special conditions, a battery and battery system are referred to as a battery.

    Issued in Renton, Washington, on November 11, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29626 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5809; Directorate Identifier 2015-NM-055-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2006-19-12, which applies to certain The Boeing Model 777-200 and -300 series airplanes. AD 2006-19-12 currently requires inspecting the lower web of the aft fairing of the engine struts for any discoloration and doing any related investigative and corrective action if necessary; inspecting the heat shield castings for any damage and doing any corrective action if necessary; installing gap cover strips; and replacing insulation blankets with new insulation blankets. Since we issued AD 2006-19-12, we have received a report that an aft fairing lower spar web exceeded the allowable conductivity limits. This proposed AD would also require, depending on airplane configuration, one-time or repetitive detailed inspections for cracking and deformation, as applicable, of the aft fairing lower structure, and one-time or repetitive conductivity inspections of the aft fairing lower structure and related investigative and corrective actions if necessary. This proposed AD also adds airplanes to the applicability. We are proposing this AD to detect and correct degradation of the aft fairing lower web, which could lead to cracking of the web and could allow flammable fluids to leak into the heat shield pan castings, and consequent increased risk of an uncontained fire and subsequent structural damage.

    DATES:

    We must receive comments on this proposed AD by January 4, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 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-2015-5809.

    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-2015-5809; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-917-6438; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-5809; Directorate Identifier 2015-NM-055-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    On September 13, 2006, we issued AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), for certain Boeing Model 777-200 and -300 series airplanes. AD 2006-19-12 requires inspecting the lower web of the aft fairing of engine struts for any discoloration and doing any related investigative and corrective action if necessary; inspecting the heat shield castings for any damage and doing any corrective action if necessary; installing gap cover strips; and replacing insulation blankets with new insulation blankets. AD 2006-19-12 resulted from a report that several discolored fairing lower webs and some damaged/deteriorated insulation blankets were found in the aft fairings of engine struts. We issued AD 2006-19-12 to prevent cracking of lower webs of the aft fairings, which could result in flammable hydraulic fluid leaking onto or near an ignition source, and possibly result in an uncontrollable fire in the engine strut area.

    Actions Since AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006) Was Issued

    Since we issued AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), we have received a report that an aft fairing lower spar web exceeded the allowable conductivity limits. An investigation concluded that wear to the pan casting and gap cover strips allowed increased heat into the aft fairing heat shield cavity, which exceeded the thermal capability of the insulation blankets.

    Related Service Information Under 1 CFR Part 51

    We have reviewed Boeing Service Bulletin 777-54-0026, Revision 2, dated January 5, 2012. The service information describes procedures for a detailed inspection of the gap cover strips and heat shield pan castings for damage, corrective actions, and installation of new gap cover strip fillers, new velcro strips, and new aft fairing insulation blankets.

    We reviewed Boeing Special Attention Service Bulletin 777-54-0038, dated March 6, 2015. The service information describes procedures for one-time and repetitive detailed inspections for any cracking and deformation, as applicable, of the aft fairing lower structure; conductivity inspections of the aft fairing lower structure; and 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 NPRM.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would retain all requirements of AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006). In addition, this proposed AD would add airplanes to the applicability of this AD. This proposed AD would also require accomplishing the actions specified in the service information described previously.

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

    Change to AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006)

    Since AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006) was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have been redesignated in this proposed AD, as listed in the following table:

    Revised Paragraph Identifiers Requirement in
  • AD 2006-19-12
  • Corresponding
  • requirement in this
  • proposed AD
  •   paragraph (f)   paragraph (g)   paragraph (g)   paragraph (h)   paragraph (h)   paragraph (i)
    Costs of Compliance

    We estimate that this proposed AD affects 99 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Inspection and other actions [retained actions from AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006)] Up to 11 work-hours × $85 per hour = $935, depending on airplane configuration Up to $16,179, depending on airplane configuration Up to $17,114, depending on airplane configuration Up to $1,694,286, depending on airplane configuration Inspections [new proposed action] Up to 24 work-hours × $85 per hour = $2,040, depending on airplane configuration $0 Up to $2,040, depending on airplane configuration Up to $201,960, depending on airplane configuration

    We estimate the following costs to do any necessary related investigative and corrective actions that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these inspections and replacements:

    On-Condition costs Action Labor cost Parts cost Cost per product Related Investigative Actions Up to 36 work-hours × $85 per hour = $3,060, depending on airplane configuration $0 Up to $3,060, depending on airplane configuration Corrective Actions Up to 38 work-hours × $85 per hour = $3,230, depending on airplane configuration 0 Up to $3,230, depending on airplane configuration

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), and adding the following new AD: The Boeing Company: Docket No. FAA-2015-5809; Directorate Identifier 2015-NM-055-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by January 4, 2016.

    (b) Affected ADs

    This AD replaces AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006).

    (c) Applicability

    This AD applies to The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F series airplanes, certified in any category, as identified in Boeing Special Attention Service Bulletin 777-54-0038, dated March 6, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 54, Nacelles/pylons.

    (e) Unsafe Condition

    This AD was prompted by a report that an aft fairing lower spar web exceeded the allowable conductivity limits. An investigation concluded that wear to the pan casting and gap cover strips allowed increased heat into the aft fairing heat shield cavity. We are proposing this AD to detect and correct degradation of the aft fairing lower web, which could lead to cracking of the web and could allow flammable fluids to leak into the heat shield pan castings, and consequent increased risk of an uncontained fire and subsequent structural damage.

    (f) Compliance

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

    (g) Retained Inspection, Installation, and Replacement Actions With No Changes

    This paragraph restates the actions required by paragraph (f) of AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), with no changes. For Model 777-200 and -300 series airplanes identified in Boeing Special Attention Service Bulletin 777-54-0021, Revision 1, dated March 16, 2006: Except as provided by paragraph (h) of this AD, within 12 months after October 30, 2006 (the effective date of AD 2006-19-12), do the actions specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-54-0021, Revision 1, dated March 16, 2006.

    (1) Do a general visual inspection of the lower web of the aft fairing for any discoloration and do any related investigative action.

    (2) Do a general visual inspection of the heat shield castings for any damage (crack(s), dent(s), gouge(s), warpage, fretting, or missing/loose nutplates).

    (3) Install gap cover strips on the heat shield pans.

    (4) Replace insulation blankets on the heat shield pans with new insulation blankets.

    (h) Retained Repair Instructions

    This paragraph restates the actions required by paragraph (g) of AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), with no changes. If any damage, discoloration, heat damage, or crack is found during any inspection required by paragraph (g) of this AD: Before further flight, do all applicable corrective actions in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, or in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-54-0021, Revision 1, dated March 16, 2006.

    (i) Retained Credit for Previous Actions With Revised Format

    This paragraph restates the credit provided by paragraph (h) of AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006), with revised format. This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before October 30, 2006 (the effective date of AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006)) using Boeing Special Attention Service Bulletin 777-54-0021, dated June 23, 2005, except where Boeing Special Attention Service Bulletin 777-54-0021, dated June 23, 2005, does not provide an International Annealed Copper Standard (IACS) value for determining the results of the inspection for heat damage, the maximum acceptable IACS value is 42 percent. Boeing Special Attention Service Bulletin 777-54-0021, dated June 23, 2005, is not incorporated by reference in this AD.

    (j) New Requirements: Detailed and Conductivity Inspections and Related Investigative and Corrective Actions (Repetitive Inspections for Certain Airplanes)

    Within 24 months after the effective date of this AD: Do detailed and conductivity inspections of the aft fairing lower structure for cracks and deformation, as applicable, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-54-0038, dated March 6, 2015. Do all applicable related investigative and corrective actions before further flight. For Group 1, Configurations 1 and 3 airplanes, and Group 2, Configuration 1, airplanes, identified in Boeing Special Attention Service Bulletin 777-54-0038, dated March 6, 2015, repeat the inspections thereafter at intervals not to exceed 24 months until the terminating action specified in paragraph (k) of this AD is done.

    (k) Optional Terminating Action

    Accomplishing a detailed inspection of the gap cover strips and heat shield pan castings for damage and applicable corrective actions, and installation of new gap cover strip fillers, new velcro strips, and new aft fairing insulation blankets, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-54-0026, Revision 2, dated January 5, 2012, concurrently with accomplishing detailed and conductivity inspections and all applicable related investigative and corrective actions required by paragraph (j) of this AD, terminates the repetitive inspections specified in paragraph (j) of this AD; except where Boeing Service Bulletin 777-54-0026, Revision 2, dated January 5, 2012, specifies to contact the manufacturer, 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 airplane, and the approval must specifically refer to this AD.

    (4) AMOCs approved for AD 2006-19-12, Amendment 39-14769 (71 FR 55727, September 25, 2006) are approved as AMOCs for the corresponding provisions of paragraphs (g), (h), and (i) of this AD.

    (m) Related Information

    (1) For more information about this AD, contact Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-917-6438; fax: 425-917-6590; email: [email protected]

    (2) 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.

    Issued in Renton, Washington, on November 12, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29617 Filed 11-19-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 771 and 774 Federal Transit Administration 49 CFR Part 622 [Docket No. FHWA-2015-0011] FHWA RIN 2125-AF60 FTA RIN 2132-AB26 Environmental Impact and Related Procedures AGENCY:

    Federal Highway Administration (FHWA), Federal Transit Administration (FTA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This NPRM provides interested parties with the opportunity to comment on proposed revisions to the FHWA and FTA joint regulations that implement the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act. The revisions are prompted by the enactment of the Moving Ahead for Progress in the 21st Century Act (MAP-21), which requires rulemaking to address programmatic approaches. This NPRM proposes to revise the FHWA/FTA Environmental Impact and Related Procedures and Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites regulations due to MAP-21 changes to the environmental review process that FHWA and FTA have not previously captured in other rulemakings, such as the use of programmatic agreements and the use of single final environmental impact statement/record of decision documents. In addition, FHWA and FTA propose changes to the regulatory text to improve readability and to reflect current practice, consistent with an Executive order to improve regulations and regulatory review. The FHWA and FTA seek comments on the proposals contained in this notice.

    DATES:

    Comments must be received on or before January 19, 2016.

    ADDRESSES:

    To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor Room W12-140, Washington, DC 20590.

    Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.

    Instructions: You must include the agency name and docket number or the Regulatory Identifier Number (RIN) for the rulemaking at the beginning of your comments. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    For the FHWA: Neel Vanikar, Office of Project Development and Environmental Review, (202) 366-2068, or Diane Mobley, Office of Chief Counsel, (202) 366-1366. For FTA: Megan Blum, Office of Planning and Environment, (202) 366-0463, or Helen Serassio, Office of Chief Counsel, (202) 366-1974. The FHWA and FTA are both located at 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 6, 2012, President Obama signed into law MAP-21 (Pub. L. 112-141, 126 Stat. 405), which contains new requirements that FHWA and FTA, hereafter referred to as the “Agencies,” must meet in complying with NEPA (42 U.S.C. 4321 et seq.), as well as a requirement to initiate a rulemaking to allow for the use of programmatic approaches. 23 U.S.C. 139(b)(3)(A). Through this NPRM, the Agencies propose to revise their regulations that implement NEPA at 23 CFR part 771—Environmental Impact and Related Procedures, and 23 U.S.C. 138 and 49 U.S.C. 303 (hereafter referred to as Section 4(f) 1 ) at 23 CFR part 774—Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites. The proposed revisions would reflect MAP-21 requirements and better reflect current Agency practice, as well as improve readability consistent with Executive Order 13563, “Improving Regulation and Regulatory Review” (2011).

    1 Section 4(f) of the Department of Transportation Act of 1966 was repealed in 1983 when it was codified without substantive change at 49 U.S.C. 303. A provision with the same meaning is found at 23 U.S.C. 138. This regulation continues to refer to Section 4(f) as such because the policies Section 4(f) engendered are widely referred to as “Section 4(f)” matters.

    General Discussion of the Proposals

    The following bullets are sections of MAP-21 that affect 23 CFR parts 771 and 774; the list does not include the sections of MAP-21 that have been the subject of other rulemakings:

    • Section 1119(c)(2) revised the Section 4(f) exception for park road and parkway projects to apply to Federal lands transportation facilities, which affects the Section 4(f) exception in 774.13(e);

    • Section 1122 replaced the former “transportation enhancement projects program” with a new “transportation alternatives projects program,” which affects the Section 4(f) exception in 774.13(g);

    • Section 1302 amended 23 U.S.C. 108 to address advance acquisition of real property interests, which affects the timing of administrative activities in section 771.113;

    • Section 1305 amended 23 U.S.C. 139(b)-(e) concerning programmatic approaches for environmental reviews; the Secretary's designation of lead Federal agency for projects with more than one modal administration; participating agency roles and responsibilities; and project initiation information, which affects early coordination, public involvement, and project development as described in section 771.111;

    • Section 1315 expanded the emergency actions covered by categorical exclusion (CE), which were addressed in a previous rulemaking, but also affected information in section 771.131, emergency action procedures, which are addressed in this rule;

    • Section 1319 provided for the preparation of a final environmental impact statement (EIS) using errata sheets in certain circumstances and requiring the combination of final EISs with records of decision (ROD) to the maximum extent practicable if certain circumstances are met. This requirement affects definitions in § 771.107 as well as final EISs and RODs in §§ 771.125 and 771.127, respectively;

    • Section 1320(d) provided a definition of “early coordination activities;”

    • Section 20003 amended 49 U.S.C. 5301 and struck minimization of environmental impacts from the statement of policies and purposes so the reference to section 5301 has been removed from § 771.101;

    • Section 20016 amended 49 U.S.C. 5323 by striking requirements for public review and comment and public hearings for capital projects that will not substantially affect a community or its public transportation service, which affects references in §§ 771.101 and 771.125; and

    • Section 20017 amended 49 U.S.C. 5324 by striking requirements for findings of no significant impacts (FONSI) and RODs to have a written statement that no adverse environmental effect is likely from the project or no reasonable and prudent alternative exists and all attempts have been made to minimize effects, which affects a reference in § 771.125.

    In addition to the proposed MAP-21-related changes, this proposed rule includes other proposed changes to provide clarification and guidance. All proposed changes are discussed in the next section.

    Section-by-Section Discussion of the Proposals NEPA Regulation Changes (Part 771) Section 771.101 Purpose

    The Agencies propose to remove outdated references from and include new references in § 771.101 in accordance with MAP-21. The Agencies propose to revise the last sentence in section 101 to include MAP-21 references and updated U.S. Code references: “This regulation also sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139, 325, 326, 327; 49 U.S.C. 303, and 5323(q); and Pub. L. 112-141, 126 Stat. 405, sections 1301, and 1319.”

    Section 771.103 [Reserved]

    The Agencies propose no changes to section 771.103 in this NPRM.

    Section 771.105 Policy

    The Agencies propose to remove references to specific guidance documents in the footnote to paragraph (a). The revised footnote would continue to refer to the Agencies' Web sites for the most recent guidance documents. These changes will allow the regulation to stay current as the Agencies release new guidance documents.

    The Agencies propose to add a new paragraph (b) to support development of programmatic approaches consistent with MAP-21 Section 1305(a) (23 U.S.C. 139(b)): it is the Administration's policy that “[p]rogrammatic approaches be developed for compliance with environmental requirements, coordination among agencies and/or the public, or to otherwise enhance and accelerate project development.” Addressing programmatic approaches in this section and under a separate paragraph refects the Agencies' intent to encourage their broader use.

    With the addition of proposed paragraph (b), current paragraphs (b), (c), (d), (e), and (f) would be re-lettered as paragraphs (c), (d), (e), (f), and (g), respectively. The Agencies propose no change in wording to any of these paragraphs.

    Section 771.107 Definitions

    The Agencies propose to modify the first sentence of the definition of “Administration action” from passive voice to active voice without losing the original intent of the definition: “FHWA or FTA approval of the applicant's request for Federal funds for construction.” The rest of the definition would not change.

    The Agencies propose to modify the definition of “applicant” by adding the word “Federal” to include Federal governmental units as potential applicants. This change would provide for instances when the Federal Lands program is an FHWA applicant.

    The Agencies propose to add a definition for “programmatic approaches” to § 771.107 consistent with MAP-21 Section 1305(a) (23 U.S.C. 139(b)). The proposed definition is “an approach that reduces the need for project-by-project reviews, eliminates repetitive discussion of the same issue, or focuses on the actual issues ripe for analyses at each level of review, while maintaining appropriate consideration for the environment” and is taken in large part from 23 U.S.C. 139(b)(3)(A). The Agencies do not propose adding or deleting any other definitions.

    The Agencies propose to modify the definition of “Project sponsor” by adding “Federal funding” to the definition and clarifying that the project sponsor, if not the applicant, may conduct some of the activities on behalf of the applicant. This change would slightly broaden the definition of project sponsor and make it consistent with other parts of the regulation, as well as clarify that the project sponsor and the applicant are not always one and the same entity. The proposed revised definition is “[t]he Federal, State, local, or federally-recognized Indian tribal governmental unit, or other entity, including any private or public-private entity that seeks Federal funding or an Administration action for a project. The project sponsor, if not the applicant, may conduct some of the activities on behalf of the applicant.”

    The Agencies propose to modify the definition of “Section 4(f)” to include a reference to the current implementing regulations for Section 4(f) (23 CFR part 774), and to delete footnote 2, which is discussed in 23 CFR part 774.

    Structurally, the Agencies propose reorganizing the definitions within this section by organizing them in alphabetical order and removing the lettering of paragraphs. This change is consistent with other regulations (e.g., 23 CFR part 774), and will aid reader comprehension, as definitions are typically in alphabetical order. In addition, this change would reduce future associated formatting changes to the regulation should definitions be added or removed.

    Section 771.109 Applicability and Responsibilities

    The Agencies propose several changes to § 771.109 that provide greater clarity on Agency, project sponsor, and applicant responsibilities, as well as improve the organizational structure of the section. For example, the Agencies propose to reorganize paragraph (b) by renumbering it as paragraph (b)(1) and to modify the language of proposed paragraph (b)(1) by adding the phrase “unless the Administration approves of their deletion or modification in writing” to the end of the first sentence. This text is not new; the Agencies propose to move this concept from the last clause in paragraph (d) of this section and revise the language to be in active voice, clarifying that the Administration performs the action (i.e., the Agencies will approve of any deletions or modifications of mitigation measures previously committed to in the environmental documents prepared pursuant to this regulation). In addition to that change, the Agencies propose to modify the language of proposed paragraph (b)(1) by clarifying the responsibilities of FHWA in the second sentence. The current phrase, “program management,” would be replaced with “stewardship and oversight,” and the phrase, “that include reviews of designs, plans, specifications, and estimates (PS&E), and construction inspections,” would be deleted. The Agencies propose this change to reflect the customary practice and responsibilities of FHWA. In summary, paragraph (b)(1) would read, “The applicant, in cooperation with the Administration, is responsible for implementing those mitigation measures stated as commitments in the environmental documents prepared pursuant to this regulation unless the Administration approves of their deletion or modification in writing. The FHWA will assure that this is accomplished as a part of its stewardship and oversight responsibilities. The FTA will assure implementation of committed mitigation measures through incorporation by reference in the grant agreement, followed by reviews of designs and construction inspections.”

    The Agencies propose creating a new paragraph (b)(2) that reaffirms FHWA's commitment to ensuring that the State highway agency with which it partners fulfills all environmental commitments as listed in approved environmental review documents. The language found in proposed paragraph (b)(2) was previously found in section 771.109(d), though the last clause of paragraph (d) was added to paragraph (b)(1) as explained above. The Agencies moved the language to its new position in paragraph (b)(2) in order to improve the logical sequence of the section; paragraphs (b)(1) and (b)(2) both address mitigation measures.

    The Agencies propose to add a new paragraph (c)(7) that clarifies the responsibility of a participating agency: “[a] participating agency is responsible for providing input, as appropriate, during the times specified in the coordination plan under 23 U.S.C. 139(g), and providing comments and concurrence on a schedule if included within the coordination plan.” This change is proposed in accordance with MAP-21 Section 1305(e) (23 U.S.C. 139(g)(1)(B)(i)).

    As noted in the discussion above, the Agencies propose to delete paragraph (d), as these responsibilities are now articulated through revisions to paragraph (b)(1) and in proposed new paragraph (b)(2).

    Section 771.111 Early Coordination, Public Involvement, and Project Development

    Upon review of § 771.111, the Agencies found the beginning of the section to be out of logical order. The Agencies propose to reorganize paragraph (a) into three subparagraphs, keeping much of the same information: Paragraph (a)(1) addresses early coordination activities; paragraph (a)(2) covers the transportation planning process in relation to the environmental review process; and paragraph (a)(3) remains focused on class of action identification. The proposed new sentence in paragraph (a)(1) would discuss the benefits of early coordination activities: “These [early coordination] activities contribute to reducing or eliminating delay, duplicative processes, and conflict by incorporating planning outcomes that have been reviewed by agencies and Indian tribal partners in project development.” The Agencies developed this language after considering the language in section 1320(a)(1) of MAP-21, which essentially contains the goals of early coordination. Early coordination activities include: (1) Technical assistance on identifying potential impacts and mitigation issues; (2) the potential appropriateness of using planning products and decisions in later environmental reviews; and (3) the identification and elimination from detailed study in the environmental review process of the issues that are not significant or that have been covered by prior environmental reviews (for the list of activities, see MAP-21 Section 1320(d)). The Agencies propose deleting the second sentence currently in paragraph (a)(1) (“This involves the exchange of information from the inception of a proposal for action to preparation of the environmental review documents.”) because it is duplicative of the concepts addressed in paragraph (a)(2) (now proposed paragraph (a)(2)(i)).

    The Agencies propose modifying current paragraph (a)(2) by renumbering it as paragraph (a)(2)(i) and updating the citations to read “40 CFR parts 1500 through 1508, 23 CFR part 450, or 23 U.S.C. 168” in order to be more encompassing of the referenced statute and regulations. In addition, a new paragraph (a)(2)(ii) would address the inclusion of mitigation actions in the planning process: “The planning process described in paragraph (a)(2)(i) may include mitigation actions consistent with a programmatic mitigation plan developed pursuant to 23 U.S.C. 169 or from a programmatic mitigation plan developed outside of that framework.” Programmatic mitigation plans are the subject of a separate on-going MAP-21 rulemaking action (see 79 FR 31784, June 2, 2014); in the event the Agencies publish a final rule, the Agencies would revise the proposed paragraph (a)(2)(ii) text to include a reference to the applicable regulation. The Agencies propose including the reference to programmatic mitigation plans to further encourage the link between the planning and environmental processes.

    Finally, paragraph (a)(3) would include the class of action identification language currently found in the last two sentences of paragraph (a)(1): “Applicants intending to apply for funds should notify the Administration at the time that a project concept is identified. When requested, the Administration will advise the applicant, insofar as possible, of the probable class of action (see 23 CFR 771.115) and related environmental laws and requirements and of the need for specific studies and findings that would normally be developed during the environmental review process.” Generally, this is a non-substantive change in that most of the information found in proposed new paragraph (a)(3) comes from the current paragraph (a)(1). But the Agencies clarified that the Administration may advise applicants of the need for specific studies and findings that would normally be developed during the environmental review process by replacing “concurrently with” with “during,” and “documents” with “process.” The Agencies want to highlight through these changes that the focus is on the environmental review process, not documents, and the studies and findings performed are completed as part of the process.

    In paragraph (c), the Agencies propose to replace the word “project” with “action” to be consistent within 23 CFR part 771 and to more accurately reflect the work of the Agencies, which is not solely devoted to projects but to actions taken in advancement of projects. “Action” is defined in section 771.107.

    In paragraph (d), the Agencies propose to delete the outdated footnote (footnote 4): “The FHWA and FTA have developed guidance on 23 U.S.C. Section 139 titled “SAFETEA-LU Environmental Review Process: Final Guidance,” November 15, 2006, and available at http://www.fhwa.dot.gov or in hard copy upon request.” The Agencies are updating the guidance regarding section 139 to reflect MAP-21 changes and may update the guidance in response to future transportation bills. In order to maximize the flexibility of these regulations, the Agencies propose deleting the specific reference to the 2006 document.

    In paragraph (e), the Agencies propose to revise the second sentence to read: “The Administration will provide direction to the applicant on how to approach any significant unresolved issues as early as possible during the environmental review process.” This replaces the provision that the “Administration will prepare a written evaluation of any significant unresolved issues.” The change reflects current practice and is consistent with the responsibilities of the Agencies. The Agencies also replaced the references to environmental assessments and draft EIS documents with the broader term “environmental review process” because the Agencies may provide direction on any class of action. Although a CE will not have significant unresolved issues, the Agencies could provide early input on an action with significant unresolved issues that allow for the use of a CE.

    Paragraph (f) would notably be modified to include CEs. The Agencies propose replacing “In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) shall:” with “Any action evaluated through a categorical exclusion (CE), environmental assessment (EA), or environmental impact statement (EIS) shall:”. This change would clarify that actions evaluated in a CE, EA, or EIS must comply with NEPA requirements related to connected actions and segmentation, per 40 CFR 1508.25. The Agencies recognize that projects cannot be segmented improperly, regardless of the NEPA class of action; any action evaluated must have independent utility, connect logical termini when applicable (i.e., linear facilities), and not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. The Agencies have presented this guidance in recent rulemakings (e.g., 79 FR 60100, October 6, 2014 and 79 FR 2107, January 13, 2014). For consistency, the term “FONSI” would be removed from the list and replaced with “EA.”

    The Agencies propose to delete the outdated footnote in paragraph (h)(2)(viii) regarding Section 4(f) guidance (“The FHWA and FTA have developed guidance on Section 4(f) de minimis impact findings titled “Guidance for Determining De Minimis Impacts to Section 4(f) Resources,” December 13, 2005, which is available at http://www.fhwa.dot.gov or in hard copy upon request.”) as de minimis guidance is now included in the Section 4(f) Policy Paper, available at http://www.environment.fhwa.dot.gov/4f/4fpolicy.pdf.

    The Agencies propose a number of non-substantive modifications to paragraph (i) in subparagraphs (1), (3), and (4). Subparagraph (1) would be modified to improve readability and improve understanding. The term “projects” would be replaced with “actions” to better reflect the work of the Agencies in two places, and the first sentence would be changed to reflect that scoping is about the environmental review “process,” not simply about “documents.” In addition, the Agencies propose to remove the last sentence, “For other projects that substantially affect the community or its public transportation service, an adequate opportunity for public review and comment must be provided,” because the support for the statement (i.e., 49 U.S.C. 5323) was repealed by MAP-21 Section 20016, and the opportunity for the public to review EA and EIS documents is provided for in sections 771.119 (EA) and 771.123 (draft EIS). In subparagraph (3), the Agencies would modify the first sentence to provide examples of “NEPA documents” by adding “(e.g., EAs and EISs),” and would add “environmental studies (e.g., technical reports)” and “meeting” minutes to the list of potential information and material that the Agencies encourage applicants for capital assistance in the FTA program to post and distribute to enhance public involvement. Finally, in subparagraph (4), the Agencies would clarify and update the list of materials FTA encourages applicants in the FTA program to post on a project Web site until the project is constructed and open for operation. This list would include FONSIs, combined final EIS/RODs, and RODs. This sentence would now read: “Are encouraged to post all findings of no significant impact (FONSI), combined final environmental impact statement (EIS)/records of decision (ROD), and RODs on a project Web site until the project is constructed and open for operation.”

    Paragraph (j) would be modified to include updated contact information for FTA, and the Web site address for each Agency. These changes are meant simply to provide complete contact information for both Agencies.

    Section 771.113 Timing of Administration Activities

    The Agencies propose modest changes to each of the four paragraphs in § 771.113. In paragraph (a), the Agencies propose revising the paragraph by replacing the phrase “(if not a lead agency)” with “and project sponsor as appropriate,” in the first sentence. This change recognizes that the applicant and the project sponsor are not always the same entity and may not be identified as “lead agencies,” but they may work with the lead agencies to “perform the work necessary to complete the environmental review process.” As noted in the previous sentence, the Agencies would also revise the sentence by replacing the text, “a finding of no significant impact (FONSI) or a record of decision (ROD) and comply with other related environmental laws and regulations to the maximum extent possible during the NEPA process” with the text, “the environmental review process.” This modification changes the focus from the completion of a FONSI or a ROD to the completion of the environmental review process, which is a broader term and more accurately reflects the Agencies' goals. In addition, the Agencies propose revising the second sentence to more clearly provide examples of work that takes place during the review process. This sentence would be changed from, “This work includes environmental studies, related engineering studies, agency coordination and public involvement” to “This work includes drafting environmental documents and completing studies, related engineering studies, agency coordination, and public involvement.” Finally, the Agencies propose reorganizing the last sentence to bring the exception clause forward to lend greater reader comprehension; there is no content change to the last sentence.

    In subparagraph (a)(1), the Agencies propose to update the document types that indicate the environmental review process is complete. In (a)(1)(i), the Agencies would simply use “CE.” In paragraph (a)(1)(ii), the Agencies would reword the sentence to make clear that the Administration issues a FONSI by replacing passive language with active language and by adding the text “The Administration has issued a” before “FONSI” and deleting “has been approved.” In paragraph (a)(1)(iii), the Agencies would replace the text, “A final EIS has been approved and available for the prescribed period of time and a record of decision has been signed” with “The Administration has issued a combined final EIS/ROD or a final EIS and ROD.” This change would be in compliance with MAP-21 Section 1319.

    Paragraph (b) would be reworded to clarify that it applies to FHWA alone. The phrase “For activities proposed for FHWA action” would be added to the beginning of the sentence.

    In paragraph (d), the Agencies propose several modifications pursuant to MAP-21, including MAP-21 Section 1302 (and as implemented in 23 CFR part 710, subpart E, Property Acquisition Alternatives), MAP-21 Section 20008, and MAP-21 Section 20016. Generally, final design activities, property acquisition, purchase of construction materials or rolling stock, or project construction cannot proceed until the proposed action has been classified as a CE or a decision document has been issued. Exceptions to that prohibition, however, are found in paragraph (d). The Agencies propose modifying the text for subparagraph (d)(1) to read, “Early acquisition, hardship and protective acquisitions of real property in accordance with 23 CFR part 710, subpart E for FHWA.” This exception refers the reader to FHWA property acquisition regulations for the acquisition compliance requirements. The FTA's existing exception in subparagraph (d)(1) (i.e., the second sentence) would not change. To summarize, this subparagraph states that acquisition of land for hardship or protective purposes may occur prior to the completion of NEPA for Agency actions. Subparagraph (d)(2) pertains to FTA only; the text, revised as proposed, would no longer refer to FTA's “acquisition of right-of-way” CE, specifically, but would refer to the broader corridor preservation statute and guidance, pursuant to MAP-21 Section 20016. The proposed text for subparagraph (d)(2) would read: “The early acquisition of right-of-way for future transit use in accordance with 49 U.S.C. 5323(q) and FTA guidance.” The Agencies propose deleting subparagraphs (d)(3) and (d)(4) because the proposed language in subparagraph (d)(1) broadly encompasses 23 CFR part 710; therefore, the current references to 23 CFR 710.503 and 23 CFR 710.501 would no longer be necessary. Finally, subparagraph (d)(5) would be renumbered as subparagraph (d)(3), and the statutory reference at the end of the sentence would be updated to reflect changes to 49 U.S.C. 5309 by MAP-21 Section 20008: “A limited exception for rolling stock is provided in 49 U.S.C. 5309(l)(6).” These are non-substantive changes.

    Section 771.115 Classes of Actions

    The Agencies propose several minor modifications to § 771.115 to clarify this section. In the introductory paragraph, the Agencies would add the sentence “A programmatic approach may be used for any class of action” to be consistent with MAP-21 Section 1305 (23 U.SC. 139(b)).

    In paragraph (a), the Agencies would move the acronym “EIS” to the beginning of the sentence and move “Class 1” to parentheses to aid in readability.

    Paragraph (a) states that “actions that significantly affect the environment require an EIS” and provides examples of actions that normally require an EIS in the subsequent subparagraphs. In subparagraph (a)(3), FTA proposes to modify the current example, “Construction or extension of a fixed transit facility (e.g., rapid rail, light rail, commuter rail, bus rapid transit) that will not be located within an existing transportation right-of-way,” by inserting the term “primarily” before “within an existing transportation right-of-way.” This addition would be in response to FTA's recent revisions to its list of CEs since 2012, including the “assembly or construction of facilities” CE (23 CFR 771.118(c)(9)). The FTA has categorically excluded some actions from requiring an EIS or EA when they take place primarily or entirely within existing transportation right-of-way; therefore, FTA proposes adding “primarily” to subparagraph (a)(3) in order to distinguish clearly that actions not primarily within existing transportation right-of-way will normally require an EIS.

    In subparagraph (a)(4), the Agencies would add “For FHWA actions” to the beginning of the sentence, but no other modifications are proposed to the subparagraph: “For FHWA actions, new construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility.” The Agencies propose this change because the Agencies propose adding a new subparagraph (a)(5) to reflect FTA actions. The subparagraph (a)(5) language would be similar to subparagraph (a)(4) language, but it would not refer to high occupancy vehicles because they are not typically part of the FTA program. In addition, the subparagraph would include the “not located primarily within an existing transportation right-of-way” condition (emphasis added) to reflect FTA's program, as discussed above for subparagraph (a)(3). Proposed subparagraph (a)(5) would read: “For FTA actions, new construction or extension of a separate roadway for buses not located primarily within an existing transportation right-of-way.”

    As the Agencies propose for paragraph (a), the Agencies propose moving the acronym for CEs to the beginning of the sentence in paragraph (b), and moving the acronym for EAs to the beginning of the sentence in paragraph (c) to aid in readability, followed by their class in parentheses. Finally, the Agencies propose to slightly reword the first sentence in paragraph (c) to clarify that it is the Administration's responsibility to determine the significance of the environmental impact, and where significance is not clearly established, then an EA would be the appropriate class of action. The first sentence in paragraph (c) would read, “Actions in which the Administration has not clearly established the significance of the environmental impact.”

    Section 771.117 FHWA Categorical Exclusions

    The Agencies propose no changes to § 771.117 in this NPRM.

    Section 771.118 FTA Categorical Exclusions

    The Agencies propose no changes to § 771.118 in this NPRM.

    Section 771.119 Environmental Assessments

    The Agencies propose modifications to paragraphs (a) through (f) and paragraph (h) in § 771.119. In paragraph (a), the Agencies would revise the first sentence from passive voice to active voice. It would instead read as, “The applicant shall prepare an EA. . .” This would make it clear that it is the applicant's responsibility to prepare an EA. In addition, the Agencies would reorganize the paragraph as subparagraph (a)(i). This change would aid in readability. It would also support a second proposed modification to paragraph (a): New subparagraph (a)(ii).

    The Agencies propose adding a new subparagraph (a)(ii) that would apply to FTA actions alone. Subparagraph (a)(ii) would read, “For FTA actions: When FTA or the applicant, as joint lead agency, select a contractor to prepare the EA, then the contractor shall execute an FTA conflict of interest disclosure statement. The statement must be maintained in the FTA Regional Office and with the applicant. The contractor's scope of work for the preparation of the EA will not be finalized until the early coordination activities or scoping process found in paragraph (b) is completed (including FTA approval, in consultation with the applicant, of the scope of the EA content).” This new subparagraph would address two issues. First, it would specify that if the applicant selects a contractor to prepare the EA, the contractor must execute an FTA conflict of interest disclosure statement (statement) attesting to the lack of a conflict of interest in the NEPA process, pursuant to 40 CFR 1506.5. The Agencies propose that the statement must be maintained in the FTA Regional Office and with the applicant. This addition to our regulation is not a major change from how FTA and its applicants currently prepare EAs, but it updates our regulation to reflect current practice. Second, proposed subparagraph (a)(ii) would require that the contractor's scope of work for the preparation of the EA not be finalized until the early coordination activities or scoping process found in paragraph (b) has been completed. Under this proposal, the contractor's scope of work would not be finalized until FTA and the applicant have approved the scope, in terms of NEPA, of the EA analysis and documentation. This addition would emphasize the importance that FTA places on early coordination activities and scoping for its NEPA documents, with the goal being more refined analyses that focus on significant issues rather than all potential impacts. Although scoping as a formal process is associated with EISs, a less formal type of scoping may be conducted for projects evaluated with EAs. Regardless of the form early coordination takes, FTA believes this addition will lead to better decisionmaking and documentation. Note, the language proposed for subparagraph (a)(ii) is similar to language proposed in a previous NPRM (see 77 FR 15310, March 15, 2012), but the language was never finalized. The FTA considered the comments received during the previous NPRM comment period when developing the language proposed in this rule.

    In paragraph (b), the Agencies would revise the last two sentences regarding early coordination activities to read, “The applicant shall accomplish this through early coordination activities or through a scoping process. The applicant shall summarize the public involvement process and include the results of agency coordination in the EA.” The Agencies changed the reference from “an early coordination process (i.e., procedures under § 771.111)” to “early coordination activities” for consistency with other early coordination references proposed in this rule and MAP-21 Section 1320. The Agencies modified the last sentence by (1) revising language from passive voice to active voice and (2) identifying the applicant as the entity responsible for summarizing the public involvement process and including the results of agency coordination in the EA, which reflects current practice.

    In paragraph (c), the Agencies would revise the sentence to clearly state in a reader-friendly manner that the Administration must approve the EA before it is made available to the public. Paragraph (c) would read: “The Administration must approve the EA before it is made available to the public as an Administration document.”

    In paragraph (d), the Agencies would revise the text from passive voice to active voice, clearly identify the responsibilities of the applicant, and make this paragraph easier to read and understand overall. Paragraph (d) would read: “The applicant does not need to circulate the EA for comment but the document must be made available for public inspection at the applicant's office and at the appropriate Administration field offices in accordance with paragraphs (e) and (f) of this section. The applicant shall send the notice of availability of the EA, which briefly describes the action and its impacts, to the affected units of Federal, State, and local government. The applicant shall also send notice to the State intergovernmental review contacts established under Executive Order 12372.” Other than clearly identifying the applicant's role in this paragraph, there are no changes regarding content.

    In paragraph (e), the Agencies would revise the first sentence by changing the text from “as part of the application for Federal funds” to “as part of the environmental review process for an action.” This change more accurately reflects current practice and is consistent with other changes proposed in this rule (e.g., use of “environmental review process” and “action”). In addition, the Agencies propose revising the second and third sentence of paragraph (e) by clarifying the applicant's role in providing notice of the public hearing and availability of the EA and clarifying when comments are accepted on the EA, respectively. The second and third sentences of paragraph (e) would read: “The applicant shall publish a notice of the public hearing in local newspapers that announces the availability of the EA and where it may be obtained or reviewed. Any comments must be submitted in writing to the applicant or the Administration during the 30-day availability period of the EA unless the Administration determines, for good cause, that a different period is warranted.” These changes are minor but improve the quality of the written language.

    The Agencies propose revising the last sentence in paragraph (f) to reflect the changes proposed for the last sentence in paragraph (e) regarding comment submittal during the EA public availability period. Paragraph (f) would read: “When a public hearing is not held, the applicant shall place a notice in a newspaper(s) similar to a public hearing notice and at a similar stage of development of the action, advising the public of the availability of the EA and where information concerning the action may be obtained. The notice shall invite comments from all interested parties. Any comments must be submitted in writing to the applicant or the Administration during the 30-day availability period of the EA unless the Administration determines, for good cause, that a different period is warranted.” This is a non-substantive change proposed for consistency between paragraphs.

    Lastly, the Agencies propose to limit paragraph (h) to FHWA actions only by replacing “Administration” with “FHWA” at the beginning of the paragraph. For FTA project sponsors, application of the Council on Environmental Quality's (CEQ) regulatory provision alone aligns better with how transit projects are planned, developed, and reviewed. The FTA would direct its applicants and project sponsors to rely on the CEQ NEPA Implementing Regulations, specifically 40 CFR 1501.4(e)(2), which requires that in certain circumstances the FONSI be available for public review for 30 days before FTA makes its final determination and before the action may begin. This requirement applies when the proposed action is (or is closely similar to) one that normally requires the preparation of an EIS pursuant to § 771.115, or when the nature of the proposed action is one without precedent.

    Section 771.121 Findings of No Significant Impact

    The Agencies propose minor text revisions to all three paragraphs in § 771.121. In paragraph (a), the Agencies propose to reword the first sentence to reflect existing practice: “The Administration will review the EA, comments submitted on the EA (in writing or at public hearings/meetings), and other supporting documentation, as appropriate.” This is a non-substantive change and is meant to improve readability.

    Similarly, in paragraph (b), the Agencies propose to reword the first sentence in active voice and to make it clear to the reader that the Administration issues a FONSI. The first sentence would be rewritten to read, “After the Administration issues a FONSI . . .” This non-substantive change does not affect the responsibility of the Administration in issuing a FONSI, and it does not affect the applicant's responsibility in providing notice of availability of the FONSI to affected units of Federal, State, and local government or any other responsibilities noted within this section.

    In paragraph (c), the Agencies propose a slight modification to include those times when the Administration may have an approval role for another Federal agency's action (e.g., when FHWA issues Interstate Access Point Approval). The modification would add “or approval” after “Administration funding” in the first sentence: “If another Federal agency has issued a FONSI on an action which includes an element proposed for Administration funding or approval . . .” In these rare situations, the Administration would evaluate the other agency's “EA/FONSI” (replacing the term “FONSI” at the end of the first sentence) in determining whether to issue its own FONSI incorporating the other agency's “EA/FONSI” (again, replacing the term “FONSI” but at the end of the second sentence). The Administration could also issue a CE for the element of the project proposed for Administration funding or approval if it determines that a CE would be appropriate.

    Section 771.123 Draft Environmental Impact Statements

    The Agencies propose a number of modifications to § 771.123. In paragraph (b), the Agencies would revise the language in the first sentence to reference CEQ's NEPA Implementing Regulations (40 CFR parts 1500 through 1508), and replace “which” with “that.” In addition, the Agencies propose deleting the reference to the FHWA in the third sentence and deleting the fourth sentence pertaining to FTA; the revised third sentence would apply to both Agencies. The Agencies propose paragraph (b) read: “After publication of the Notice of Intent, the lead agencies, in cooperation with the applicant (if not a lead agency), will begin a scoping process that may take into account any planning work already accomplished, in accordance with 23 CFR 450.212, 450.318, or any applicable provisions of the CEQ regulations at 40 CFR parts 1500 through 1508. The scoping process will be used to identify the purpose and need, the range of alternatives and impacts, and the significant issues to be addressed in the EIS and to achieve the other objectives of 40 CFR 1501.7. Scoping is normally achieved through public and agency involvement procedures required by § 771.111. If a scoping meeting is to be held, it should be announced in the Administration's Notice of Intent and by appropriate means at the local level.” These minor changes would update the text to be more encompassing of the environmental review requirements and more readable.

    In paragraph (d), the Agencies would add language requiring a conflict of interest disclosure for FTA actions. This change would be consistent with proposed modifications to section 771.119(a)(ii) and 40 CFR 1506.5(c). Paragraph (d) would read, “Any of the lead agencies may select a consultant to assist in the preparation of an EIS in accordance with applicable contracting procedures and with 40 CFR 1506.5(c). For FTA actions: When FTA or the applicant, as joint lead agency, select a contractor to prepare the EIS, then the contractor shall execute an FTA conflict of interest disclosure statement. The statement must be maintained in the FTA Regional Office and with the applicant. The contractor's scope of work for the preparation of the EIS will not be finalized until the early coordination activities or scoping process found in paragraph (b) is completed (including FTA approval, in consultation with the applicant, of the scope of the EIS content).” See the discussion above in § 771.119 for a more robust discussion regarding this proposed addition.

    The Agencies propose to add a new paragraph (e). Proposed new paragraph (e) would encourage identification of the preferred alternative in the draft EIS: “The draft EIS should identify the preferred alternative to the extent practicable. If the draft EIS does not identify the preferred alternative, the Administration should provide agencies and the public with an opportunity after issuance of the draft EIS to review the impacts.” This addition would update the regulations in response to changes created by MAP-21 Section 1319 and is consistent with the Agencies' “Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Reviews” (January 14, 2013) (“Section 1319 Guidance”). It would also provide for the cases where the preferred alternative is not identified in the draft EIS. Section 1319(b) directs the lead agency, to the maximum extent practicable, to expeditiously develop a single document that consists of a final EIS and ROD, unless certain conditions exist. By identifying the preferred alternative in the draft EIS, the lead agencies more easily facilitate issuance of a combined final EIS/ROD document.

    The Agencies would also add a new paragraph (f). Proposed new paragraph (f) would allow the lead agency to develop the preferred alternative (or portion thereof) for a project to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or compliance with requirements for permitting: “At the discretion of the lead agency, the preferred alternative (or portion thereof) for a project, after being identified, may be developed to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or compliance with requirements for permitting. The development of such higher level of detail must not prevent the lead agency from making an impartial decision as to whether to accept another alternative that is being considered in the environmental review process.” This concept is not new to the Agencies, as it was codified in 23 U.S.C. 139 via the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) in 2005; the Agencies propose including a direct copy of the codified language (23 U.S.C. 139(f)(4)(d)) in this section. It is important to note that although the development of such higher level of detail is acceptable in some circumstances as noted in the proposed language, the lead agency must make an impartial decision among the alternatives considered in the environmental review process. Including this proposed paragraph would help streamline the environmental review process, particularly in terms of fulfilling permitting requirements and possibly in terms of complying with MAP-21 Section 1319(b). It also would safeguard the impartiality of the alternative analysis done during the NEPA process.

    With the addition of proposed new paragraphs (e) and (f), current paragraphs (e), (f), (g), (h), and (i) would be re-lettered as paragraphs (g), (h), (i), (j), and (k), respectively.

    In paragraph (g), the Agencies propose to add a sentence that encourages including a notice on the cover sheet that the Administration will issue a combined final EIS/ROD document unless statutory criteria or practicability considerations preclude it. This change would be consistent with MAP-21 Section 1319(b). Paragraph (g) would read: “The Administration, when satisfied that the draft EIS complies with NEPA requirements, will approve the draft EIS for circulation by signing and dating the cover sheet. The cover sheet should include a notice that after circulation of the draft EIS and consideration of the comments received, the Administration will issue a combined final EIS/ROD document unless statutory criteria or practicability considerations preclude issuance of the combined document.”

    The Agencies propose modifying the first sentence of paragraph (i) (existing paragraph (g)) to read, “The applicant, on behalf of the Administration, shall circulate the draft EIS for comment.” This change is non-substantive and would change the current text from passive voice to active voice. In addition, two subparagraphs of paragraph (i) would be slightly modified. In subparagraph (i)(2), the Agencies propose to replace “Federal, State and local government agencies expected to have jurisdiction or responsibility over, or interest or expertise in, the action,” with “Cooperating and participating agencies,” because the types of agencies listed are typically cooperating or participating agencies in the Agencies' environmental review process. This change is consistent with 23 U.S.C. 139 and 40 CFR 1508.5, and provides additional consistency within the Agencies' regulations. In proposed subparagraph (i)(3), the Agencies would correct a small grammatical error; the word “which” would be replaced with “that.” This change would be non-substantive.

    The Agencies propose to delete the first two sentences found in existing paragraph (h), which contain specific FHWA and FTA references. The Agencies also propose to revise the third sentence to include a general reference to § 771.111, which would broaden the existing language to clearly apply to both agencies. These changes would be reflected in proposed paragraph (j); the first sentence would read: “When a public hearing on the draft EIS is held (if required by 23 CFR 771.111), the draft EIS shall be available at the public hearing and for a minimum of 15 days in advance of the public hearing.” This rewriting would not change the substance of the paragraph or current practice; a draft EIS would still be required to be available at the public hearing and for a minimum of 15 days in advance of the public hearing, should one be held on the draft EIS, and the reader is directed to § 771.111 for specific Agency information. The remainder of the paragraph would remain unchanged.

    Section 771.124 Final Environmental Impact Statement/Record of Decision

    The Agencies propose to add new § 771.124 to address MAP-21 Section 1319(b) development of a combined final EIS/ROD. Section 1319(b) directs Agencies, to the maximum extent practicable, to expeditiously develop a single document that consists of a final EIS and ROD, unless certain conditions exist.

    Proposed paragraph (a)(1) would make the section 1319(b) requirement clear and identify the conditions when a combined final EIS/ROD document would not be appropriate: “After circulation of a draft EIS and consideration of comments received, the lead agencies, in cooperation with the applicant (if not a lead agency), shall combine the final EIS and record of decision (ROD), to the maximum extent practicable, unless (1) the final EIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns, or (2) there are significant new circumstances or information relevant to environmental concerns and that bear on the proposed action or the impacts of the proposed action.” This language is consistent with the MAP-21 language and the Agencies' Section 1319 Guidance.

    The existing applicable requirements for both a final EIS and ROD must be met for issuance of a combined final EIS/ROD document. Proposed paragraph (a)(2) clarifies this and refers the reader to other applicable requirements: “When the combined final EIS/ROD is a single document, it shall include the content of a final EIS presented in § 771.125 and present the basis for the decision as specified in 40 CFR 1505.2, summarize any mitigation measures that will be incorporated in the project, and document any required Section 4(f) approval in accordance with part 774 of this title.”

    Proposed paragraph (a)(3) establishes that both provisions of MAP-21 Section 1319 (i.e., paragraphs (a) and (b)) may be used in concert with each other. The proposed language is: “If the comments on the draft EIS are minor and confined to factual corrections or explanations that do not warrant additional agency response, an errata sheet may be attached to the draft statement, which together shall then become the combined final EIS/ROD document.” Errata sheets are not new to the Agencies, but the Agencies are including them in this section in response to MAP-21 Section 1319(a) to highlight their potential use, especially with the new combined final EIS/ROD document type. When both errata sheets and a combined final EIS/ROD are used, the combined final NEPA document would consist of the draft EIS, errata sheets, and any additional information required in a final EIS and ROD.

    Proposed paragraph (a)(4) establishes that a combined final EIS/ROD must meet legal sufficiency requirements. The proposed language is: “A combined final EIS/ROD will be reviewed for legal sufficiency prior to issuance by the Administration.” Legal sufficiency involves ensuring adequate documentation exists to support the final agency action/decision, as well as determining whether the combined final EIS/ROD complies with minimum legal standards of NEPA and other procedural or substantive requirements. It is not new to the Agencies' environmental review process; it is included in this section for consistency with § 771.125.

    Proposed paragraph (a)(5) would address Administration approval of the combined final EIS/ROD: “The Administration shall indicate approval of the combined final EIS/ROD by signing the document. The provision on Administration's Headquarters prior concurrence in § 771.125(c) applies to the combined final EIS/ROD.”

    Proposed paragraph (b) would make clear that the Federal Register public availability notice does not establish a comment period for the combined final EIS/ROD: “The Federal Register public availability notice published by EPA (40 CFR 1506.10) does not establish a waiting period or a period of time for the return of comments on a combined final EIS/ROD.”

    Section 771.125 Final Environmental Impact Statements

    The Agencies propose deleting paragraph (d) (“The signature of the FTA approving official on the cover sheet also indicates compliance with 49 U.S.C. 5324(b) and fulfillment of the grant application requirements of 49 U.S.C. 5323(b).”) because sections 20016 and 20017 of MAP-21 repealed the environmental review process-related requirements previously found through those statutory references for FTA.

    Due to the proposed deletion of paragraph (d), existing paragraphs (e), (f), and (g) would be re-lettered as paragraphs (d), (e), and (f), respectively.

    The Agencies propose to modify paragraph (e), previously paragraph (f), by replacing the word “printing” with the word “publication.” This change would address the fact that the final EIS may be produced by electronic means and that paper hardcopies are not required except as necessary to meet State requirements.

    The Agencies propose to add a new paragraph (g) that states: “The final EIS may take the form of an errata sheet pursuant to 40 CFR 1503.4(c).” As noted above, this change would make the Agencies' regulations consistent with MAP-21 Section 1319(a), which provides for the preparation of a final EIS by attaching errata sheets to the draft EIS if certain conditions are met. The use of errata sheets is appropriate when comments received on a draft EIS are minor, and the lead agency's responses to those comments are limited to factual corrections or explanations of why the comments do not warrant further response.

    Section 771.127 Record of Decision

    The Agencies propose to modify paragraph (a) to reflect that the minimum 30-day period between final EIS and ROD is incompatible with the publication of a combined final EIS/ROD, as required by MAP-21 Section 1319. The modification would be made by adding the phrase, “When the final EIS is not combined with the ROD,” to the beginning of the first sentence in this paragraph. This change would make clear that the 30-day waiting period between final EIS and ROD applies only for those instances where the final EIS is not combined with the ROD. Under the scenario where the Administration signs a combined final EIS/ROD document, there is no waiting period. In addition, the Agencies propose to remove the last sentence from paragraph (a) (“Until any required ROD has been signed, no further approvals may be given except for administrative activities taken to secure further project funding and other activities consistent with 40 CFR 1506.1”) because it is duplicative of § 771.113 and unnecessary to repeat in this section. The changes presented to this paragraph are, therefore, non-substantive.

    In paragraph (b), the Agencies propose to modify the language to reflect the possibility of an amended ROD, as well as to include a reference to the combined final EIS/ROD process. In the discussion of a revised ROD, the Agencies would add the text “or amended” before the term “ROD” in both sentences to reflect FTA current practice. Examples of when the Agencies would amend a ROD include where (1) the Administration previously signed a combined final EIS/ROD or ROD and subsequently decides to approve an alternative that was not identified as the preferred alternative but was fully evaluated in the final EIS, or (2) the Administration proposes to make substantial changes to the mitigation measures or findings discussed in the combined final EIS/ROD or ROD. To provide for the combined final EIS/ROD process requirements, the Agencies propose inserting “§ 771.124(a) or” prior to the existing reference to § 771.125(c) at the end of the first sentence, and removing “pursuant to § 771.125(g)” from the second sentence.

    Section 771.129 Re-Evaluations

    The Agencies propose to add introductory text before paragraph (a) to provide the purpose and timing of re-evaluations. The introductory text would read: “The Administration shall determine, prior to granting any new approval related to an action or amending any previously approved aspect of an action, including mitigation commitments, whether an approved environmental document remains valid as described below. . . .” This change would clarify the Administration's responsibility regarding re-evaluations and provide a link to existing paragraphs (a) through (c).

    In paragraph (a), the Agencies propose a non-substantive change that changes passive voice to active voice. The Agencies would add the text “The applicant shall prepare a” to the beginning of this paragraph and remove “shall be prepared by the applicant” from later in the sentence. This change clearly states that the applicant is responsible for preparing the written evaluation of the draft EIS.

    In paragraph (b), the Agencies propose similar modifying language to clarify that the applicant is responsible for preparing a written evaluation of the final EIS before further Administration approvals may be granted. The first sentence would be modified to read: “The applicant shall prepare a written evaluation of the final EIS before the Administration may grant further approvals if major. . . .” This change clarifies the actions of the applicant and Administration and is consistent with current practice.

    The Agencies propose revising the first sentence in paragraph (c) to include combined final EIS/ROD documents in the list of environmental documents that the Administration issues and to clearly state the Administration's role. Paragraph (c) would be revised to read: “After the Administration issues a combined final EIS/ROD, ROD, FONSI, or CE designation, the applicant. . . .” The original language noted “approval” of the ROD, FONSI, or CE designation, but did not state who approved the document nor did the use of “approval” accurately reflect the Administration's role. The proposed change would clarify that it is the Administration that issues environmental decision documents, which is consistent with other proposals in this rule.

    Section 771.130 Supplemental Environmental Impact Statements

    The Agencies propose to delete paragraph (e) from this section (“A supplemental draft EIS may be necessary for major new fixed guideway capital projects proposed for FTA funding if there is a substantial change in the level of detail on project impacts during project planning and development. The supplement will address site-specific impacts and refined cost estimates that have been developed since the original draft EIS.”). The FTA proposes deleting this paragraph because it is not necessary to refer specifically to major new fixed guideway capital projects; a supplemental document may be needed for a variety of public transportation projects.

    The Agencies propose to modify existing paragraph (f) (proposed paragraph (e) if the deletion noted above is finalized) to add EAs as a supplemental document type that may be used to analyze issues of limited scope; the addition of EAs to this paragraph is consistent with § 771.130(c). The modification would be made by revising the first sentence: “In some cases, an EA or supplemental EIS may be required . . .” In addition, the Agencies would replace the term “EIS” with “document” in the last sentence of the paragraph and the last sentence of subparagraph (e)(3) to account for the possibility of completing an EA for the supplemental analyses.

    Section 771.131 Emergency Action Procedures

    The Agencies propose to add an introductory sentence to the current paragraph in this section to address emergency and disaster-related CEs. This change would reflect the recently updated Agencies' CEs in §§ 771.117 and 771.118 for FHWA and FTA, respectively. The introductory sentence would read: “Responses to some emergencies and disasters are categorical exclusions under § 771.117 for FHWA or § 771.118 for FTA.” In the second sentence, the Agencies would add “Otherwise,” to the beginning of the sentence to account for those actions that do not qualify for a CE and must follow current emergency action procedures.

    Section 771.133 Compliance With Other Requirements

    The Agencies are proposing to modify the current paragraph by reorganizing the section and adding or modifying text. The existing paragraph would be listed as paragraph (a) and, in accordance with Section 1319 of MAP-21, paragraph (a) would be modified to include “combined final EIS/ROD” as a document type that should comply with requirements of all applicable environmental laws, Executive orders, and other related requirements. In the last sentence of paragraph (a), the Agencies propose changing the reference to “the Administration” to “the FHWA” because the report requirements referenced in the paragraph and found in 23 U.S.C. 128 do not apply to FTA. This is a minor change that accurately reflects legal requirements and current practice.

    The Agencies propose to add a new paragraph (b) to provide for the possibility that applicants may want to meet compliance requirements with other laws, regulations or Executive orders through programmatic approaches, consistent with MAP-21 Section 1305(a) (23 U.S.C. 139(b)). This new paragraph would read, “In consultation with the Administration and subject to Administration approval, an applicant may develop a programmatic approach for compliance with the requirements of any law, regulation, or Executive order applicable to the project development process.”

    Section 771.137 International Actions

    The Agencies propose no changes to § 771.137 in this NPRM.

    Section 771.139 Limitations on Actions

    The Agencies propose to modify this section by replacing the 180-day statute of limitations for claims arising under Federal law seeking judicial review of any final decisions by the Administration or by other Federal agencies on a transportation project announced in the Federal Register with a 150-day time period. The Agencies would replace the text “180” with “150”. This modification would make the paragraph consistent with MAP-21 Section 1308 (23 U.S.C. 139(l)).

    Section 4(f) Regulation Changes (Part 774) Section 774.11 Applicability

    In paragraph (i), the Agencies propose to revise the examples of documentation that would be adequate to show that a transportation facility and a Section 4(f) property were concurrently or jointly planned or developed: “(1) Formal reservation of a property for a future transportation use can be demonstrated by a government document created prior to or contemporaneously with the establishment of the park, recreation area, or wildlife and waterfowl refuge. Examples of an adequate document to formally reserve a future transportation use include: (A) A government map that depicts a transportation facility on the property; (B) a land use or zoning plan depicting a transportation facility on the property; or (C) a fully executed real estate instrument that references a future transportation facility on the property. (2) Concurrent or joint planning or development can be demonstrated by a government document created after, contemporaneously with, or prior to the establishment of the Section 4(f) property. Examples of an adequate document to demonstrate concurrent or joint planning or development include: (A) A government document that describes or depicts the designation or donation of the property for both the potential transportation facility and the Section 4(f) property; or (B) a government agency map, memorandum, planning document, report, or correspondence that describes or depicts action taken with respect to the property by two or more governmental agencies with jurisdiction for the potential transportation facility and the Section 4(f) property, in consultation with each other.” This would expand the current text that provides more limited direction to applicants as to what the Agencies will accept as adequate documentation of concurrent or joint planning or development of a transportation facility and a park, recreation area, or wildlife and waterfowl refuge.

    Section 774.13 Exceptions

    In paragraph (e), the Agencies propose to revise the exception to read: “Projects for the Federal lands transportation facilities described in 23 U.S.C. 101(a)(8).” This replaces: “Park road or parkway projects under 23 U.S.C. 204.” This change is necessary due to the restructuring of the Federal Lands Highway Program by MAP-21, and more specifically, to implement Section 1119(c)(2) of MAP-21, which revised and broadened the Section 4(f) exception for park road and parkway projects to apply to Federal lands transportation facilities. Federal lands transportation facilities are public highways, roads, bridges, trails, and transit systems that are located on, adjacent to, or provide access to Federal lands for which title and maintenance responsibility is vested in the Federal Government, and that appear on the national Federal lands transportation facility inventory described in 23 U.S.C. 203(c).

    In paragraph (g), the Agencies propose to revise the exception to read: “Transportation enhancement activities, transportation alternatives projects, and mitigation activities . . .” This replaces: “Transportation enhancement projects and mitigation activities . . .” This change is necessary because Section 1122 of MAP-21 replaced the former “transportation enhancement projects program” with a new “transportation alternatives projects program.” This exception would continue to be limited to situations where the official(s) with jurisdiction over the Section 4(f) resource agrees that “the use of the Section 4(f) property is solely for the purpose of preserving or enhancing an activity, feature, or attribute that qualifies the property for Section 4(f) protection.”

    Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action from 49 U.S.C. 322(a), which provides authority to “[a]n officer of the Department of Transportation [to] prescribe regulations to carry out the duties and powers of the officer.” The Secretary delegated this authority to the Agencies in 49 CFR 1.81(a)(3), which provides that the authority to prescribe regulations contained in 49 U.S.C. 322(a) is delegated to each Administrator “with respect to statutory provisions for which authority is delegated by other sections in [49 CFR part 1].” The Secretary has delegated authority to the Agencies to implement NEPA and Section 4(f), the statutes implemented by this rule, in 49 CFR 1.81(a)(4) and (5). Moreover, the CEQ regulations that implement NEPA provide at 40 CFR 1507.3 that agencies shall continue to review their policies and NEPA implementing procedures and revise them as necessary to ensure full compliance with the purposes and provisions of NEPA.

    Rulemaking Analyses and Notices

    The agencies will consider all comments received before the close of business on the comment closing date indicated above and will be available for examination in the docket (FHWA-2015-0011) at regulations.gov. Comments received after the comment closing date will be filed in the docket and the Agencies will consider them to the extent practicable. In addition to late comments, the Agencies will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. The Agencies may publish a final rule at any time after close of the comment period.

    Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Agencies have determined preliminarily that this action would not be a significant regulatory action under section 3(f) of Executive Order 12866 nor would it be significant within the meaning of U.S. Department of Transportation regulatory policies and procedures (44 FR 11032, February 26, 1979). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Agencies anticipate that the economic impact of this rulemaking would be minimal. The Agencies do not have specific data to assess the monetary value of the benefits from the proposed changes because such data does not exist and would be difficult to develop.

    This NPRM proposes to modify 23 CFR parts 771 and 774 in order to be consistent with changes introduced by MAP-21 as well as to provide clarification and make the regulation more consistent with the Agencies' practices. These proposed changes would not adversely affect, in any material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. The Agencies anticipate that the changes in this NPRM would enable projects to move more expeditiously through the Federal review process and would reduce the preparation of extraneous environmental documentation and analysis not needed for compliance with NEPA or Section 4(f) while still ensuring that projects are built in an environmentally responsible manner. The Agencies request comment, including data and information on the experiences of project sponsors, on the likely effects of the changes being proposed.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the Agencies have evaluated the effects of this proposed rule on small entities and anticipate that this action would not have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. The proposed revisions are expected to expedite environmental review and thus are anticipated to be less than any current impact on small business entities.

    Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the Agencies will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector.

    Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to ensure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. The Agencies analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132 and determined that it would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The Agencies have also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The Agencies invite State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments.

    Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175, and determined that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

    Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agencies have determined that this action is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

    Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities (49 CFR part 17) apply to this program. Accordingly, the Agencies solicit comments on this issue.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The Agencies have determined that this proposal does not contain collection of information requirements for the purposes of the PRA.

    Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive order and the DOT Order in all rulemaking activities. In addition, both Agencies have issued additional documents relating to administration of the Executive order and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm). The FTA also issued an update to its EJ policy, FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July 17, 2012) (available online at http://www.fta.dot.gov/legislation_law/12349_14740.html).

    The Agencies have evaluated this proposed rule under the Executive order, the DOT Order, the FHWA Order, and the FTA Circular. The Agencies have determined that the proposed changes to 23 CFR part 771, if finalized as proposed, would not cause disproportionately high and adverse human health and environmental effects on minority or low income populations.

    At the time the Agencies apply the NEPA implementing procedures in 23 CFR part 771, the Agencies would have an independent obligation to conduct an evaluation of the proposed action under the applicable EJ orders and guidance to determine whether the proposed action has the potential for EJ effects. The rule would not affect the scope or outcome of that EJ evaluation. In any instance where there are potential EJ effects resulting from a proposed Agency action covered under any of the NEPA classes of action in 23 CFR part 771, public outreach under the applicable EJ orders and guidance would provide affected populations with the opportunity to raise any concerns about those potential EJ effects. See DOT Order 5610.2(a), FHWA Order 6640.23A, and FTA Policy Guidance for Transit Recipients (available at links above). Indeed, outreach to ensure the effective involvement of minority and low income populations where there is potential for EJ effects is a core aspect of the EJ orders and guidance. For these reasons, the Agencies have determined that no further EJ analysis is needed and no mitigation is required in connection with the proposed revisions to the Agencies' NEPA and Section 4(f) implementing regulations (23 CFR parts 771 and 774).

    Executive Order 13045 (Protection of Children)

    The Agencies have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this action would not be an economically significant rule and would not cause an environmental risk to health or safety that may disproportionately affect children.

    Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). The CEQ regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. The changes proposed in this rule are part of those agency procedures, and therefore establishing the proposed changes does not require preparation of a NEPA analysis or document. Agency NEPA procedures are generally procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

    Regulation Identifier Number

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

    List of Subjects 23 CFR Part 771

    Environmental review process, Environmental protection, Grant programs—transportation, Highways and roads, Historic preservation, Mitigation plans, Programmatic approaches, Public lands, Recreation areas, Reporting and recordkeeping requirements.

    23 CFR Part 774

    Environmental protection, Grant programs-transportation, Highways and roads, Historic preservation, Mass Transportation, Public Lands, Recreation areas, Reporting and recordkeeping requirements, Wildlife refuges.

    49 CFR Part 622

    Environmental impact statements, Environmental review process, Grant programs—transportation, Mitigation plans, Programmatic approaches, Public transportation, Recreation areas, Reporting and recordkeeping requirements, Transit.

    Issued in Washington, DC, on November 10, 2015, under authority delegated in 49 CFR 1.85 and 1.91. Gregory G. Nadeau, Administrator, Federal Highway Administration. Therese W. McMillan, Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies propose to amend title 23, Code of Federal Regulations parts 771 and 774, and title 49, Code of Federal Regulations part 622, as follows:

    TITLE 23—Highways PART 771—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 1. Revise authority citation for part 771 to read as follows: Authority:

    42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500-1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319.

    2. Revise § 771.101 to read as follows:
    § 771.101 Purpose.

    This regulation prescribes the policies and procedures of the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) for implementing the National Environmental Policy Act of 1969 as amended (NEPA), and supplements the NEPA regulation of the Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ regulation). Together these regulations set forth all FHWA, FTA and Department of Transportation (DOT) requirements under NEPA for the processing of highway and public transportation projects. This regulation also sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); and Public Law 112-141, 126 Stat. 405, sections 1301 and 1319.

    3. Revise § 771.105 and its footnote to read as follows:
    § 771.105 Policy.

    It is the policy of the Administration that:

    (a) To the fullest extent possible, all environmental investigations, reviews, and consultations be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental review document required by this regulation.1

    1 FHWA and FTA have supplementary guidance on environmental documents and procedures for their programs available on the Internet at http://www.fhwa.dot.gov and http://www.fta.dot.gov, or in hardcopy by request.

    (b) Programmatic approaches be developed for compliance with environmental requirements, coordination among agencies and/or the public, or to otherwise enhance and accelerate project development.

    (c) Alternative courses of action be evaluated and decisions be made in the best overall public interest based upon a balanced consideration of the need for safe and efficient transportation; of the social, economic, and environmental impacts of the proposed transportation improvement; and of national, State, and local environmental protection goals.

    (d) Public involvement and a systematic interdisciplinary approach be essential parts of the development process for proposed actions.

    (e) Measures necessary to mitigate adverse impacts be incorporated into the action. Measures necessary to mitigate adverse impacts are eligible for Federal funding when the Administration determines that:

    (1) The impacts for which the mitigation is proposed actually result from the Administration action; and

    (2) The proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits fo the proposed mitigation measures. In making this determination, the Administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a Federal statute, Executive order, or Administration regulation or policy.

    (f) Costs incurred by the applicant for the preparation of environmental documents requested by the Administration be eligible for Federal assistance.

    (g) No person, because of handicap, age, race, color, sex, or national origin, be excluded from participating in, or denied benefits of, or be subject to discrimination under any Administration program or procedural activity required by or developed pursuant to this regulation.

    4. Revise § 771.107 to read as follows:
    § 771.107 Definitions.

    The definitions contained in the CEQ regulation and in titles 23 and 49 of the United States Code are applicable. In addition, the following definitions apply.

    Action. A highway or transit project proposed for FHWA or FTA funding. It also includes activities such as joint and multiple use permits, changes in access control, etc., which may or may not involve a commitment of Federal funds.

    Administration. The FHWA or FTA, whichever is the designated Federal lead agency for the proposed action. A reference herein to the Administration means the FHWA, or FTA, or a State when the State is functioning as the FHWA or FTA in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 325, 326, or 327, or other applicable law. A reference herein to the FHWA or FTA means the State when the State is functioning as the FHWA or FTA respectively in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 325, 326, or 327, or other applicable law. Nothing in this definition alters the scope of any delegation or assignment made by FHWA or FTA.

    Administration action. FHWA or FTA approval of the applicant's request for Federal funds for construction. It also includes approval of activities such as joint and multiple use permits, changes in access control, etc., which may or may not involve a commitment of Federal funds.

    Applicant. Any Federal, State, local, or federally-recognized Indian tribal governmental unit that requests funding approval or other action by the Administration and that the Administration works with to conduct environmental studies and prepare environmental review documents. When another Federal agency, or the Administration itself, is implementing the action, then the lead agencies (as defined in this section) may assume the responsibilities of the applicant in this part. If there is no applicant then the Federal lead agency will assume the responsibilities of the applicant in this part.

    Environmental studies. The investigations of potential environmental impacts to determine the environmental process to be followed and to assist in the preparation of the environmental document.

    Lead agencies. The Administration and any other agency designated to serve as a joint lead agency with the Administration under 23 U.S.C. 139(c)(3) or under the CEQ regulation.

    Participating agency. A Federal, State, local, or federally-recognized Indian tribal governmental unit that may have an interest in the proposed project and has accepted an invitation to be a participating agency, or, in the case of a Federal agency, has not declined the invitation in accordance with 23 U.S.C. 139(d)(3).

    Programmatic approaches. An approach that reduces the need for project-by-project reviews, eliminates repetitive discussion of the same issue, or focuses on the actual issues ripe for analyses at each level of review, while maintaining appropriate consideration for the environment.

    Project sponsor. The Federal, State, local, or federally-recognized Indian tribal governmental unit, or other entity, including any private or public-private entity that seeks Federal funding or an Administration action for a project. The project sponsor, if not the applicant, may conduct some of the activities on behalf of the applicant.

    Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as implemented by 23 CFR part 774).

    5. Amend § 771.109 by revising paragraph (b) and adding paragraph (c)(7) to read as follows:
    § 771.109 Applicability and responsibilities.

    (b)(1) The applicant, in cooperation with the Administration, is responsible for implementing those mitigation measures stated as commitments in the environmental documents prepared pursuant to this regulation unless the Administration approves of their deletion or modification in writing. The FHWA will assure that this is accomplished as a part of its stewardship and oversight responsibilities. The FTA will assure implementation of committed mitigation measures through incorporation by reference in the grant agreement, followed by reviews of designs and construction inspections.

    (2) When entering into Federal-aid project agreements pursuant to 23 U.S.C. 106, FHWA shall ensure that the State highway agency constructs the project in accordance with and incorporates all committed environmental impact mitigation measures listed in approved environmental review documents.

    (c) * * *

    (7) A participating agency is responsible for providing input, as appropriate, during the times specified in the coordination plan under 23 U.S.C. 139(g), and providing comments and concurrence on a schedule if included within the coordination plan.

    6. Revise § 771.111 to read as follows:
    § 771.111 Early coordination, public involvement, and project development.

    (a)(1) Early coordination with appropriate agencies and the public aids in determining the type of environmental review document an action requires, the scope of the document, the level of analysis, and related environmental requirements. These activities contribute to reducing or eliminating delay, duplicative processes, and conflict by incorporating planning outcomes that have been reviewed by agencies and Indian tribal partners in project development.

    (2)(i) The information and results produced by, or in support of, the transportation planning process may be incorporated into environmental review documents in accordance with 40 CFR parts 1500 through 1508, 23 CFR part 450, or 23 U.S.C. 168.

    (ii) The planning process described in paragraph (a)(2)(i) may include mitigation actions consistent with a programmatic mitigation plan developed pursuant to 23 U.S.C. 169 or from a programmatic mitigation plan developed outside of that framework.

    (3) Applicants intending to apply for funds should notify the Administration at the time that a project concept is identified. When requested, the Administration will advise the applicant, insofar as possible, of the probable class of action (see 23 CFR 771.115) and related environmental laws and requirements and of the need for specific studies and findings that would normally be developed during the environmental review process.

    (b) The Administration will identify the probable class of action as soon as sufficient information is available to identify the probable impacts of the action.

    (c) When both the FHWA and FTA are involved in the development of an action, or when the FHWA or FTA acts as a joint lead agency with another Federal agency, a mutually acceptable process will be established on a case-by-case basis.

    (d) During the early coordination process, the lead agencies may request other agencies having an interest in the action to participate, and must invite such agencies if the action is subject to the project development procedures in 23 U.S.C. 139. Agencies with special expertise may be invited to become cooperating agencies. Agencies with jurisdiction by law must be requested to become cooperating agencies.

    (e) Other States and Federal land management entities that may be significantly affected by the action or by any of the alternatives shall be notified early and their views solicited by the applicant in cooperation with the Administration. The Administration will provide direction to the applicant on how to approach any significant unresolved issues as early as possible during the environmental review process.

    (f) Any action evaluated through a categorical exclusion (CE), environmental assessment (EA), or environmental impact statement (EIS) shall:

    (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

    (2) Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and

    (3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

    (g) For major transportation actions, the tiering of EISs as discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate. The first tier EIS would focus on broad issues such as general location, mode choice, and areawide air quality and land use implications of the major alternatives. The second tier would address site-specific details on project impacts, costs, and mitigation measures.

    (h) For the Federal-aid highway program:

    (1) Each State must have procedures approved by the FHWA to carry out a public involvement/public hearing program pursuant to 23 U.S.C. 128 and 139 and CEQ regulation.

    (2) State public involvement/public hearing procedures must provide for:

    (i) Coordination of public involvement activities and public hearings with the entire NEPA process.

    (ii) Early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions.

    (iii) One or more public hearings or the opportunity for hearing(s) to be held by the State highway agency at a convenient time and place for any Federal-aid project which requires significant amounts of right-of-way, substantially changes the layout or functions of connecting roadways or of the facility being improved, has a substantial adverse impact on abutting property, otherwise has a significant social, economic, environmental or other effect, or for which the FHWA determines that a public hearing is in the public interest.

    (iv) Reasonable notice to the public of either a public hearing or the opportunity for a public hearing. Such notice will indicate the availability of explanatory information. The notice shall also provide information required to comply with public involvement requirements of other laws, Executive orders, and regulations.

    (v) Explanation at the public hearing of the following information, as appropriate:

    (A) The project's purpose, need, and consistency with the goals and objectives of any local urban planning,

    (B) The project's alternatives, and major design features,

    (C) The social, economic, environmental, and other impacts of the project,

    (D) The relocation assistance program and the right-of-way acquisition process.

    (E) The State highway agency's procedures for receiving both oral and written statements from the public.

    (vi) Submission to the FHWA of a transcript of each public hearing and a certification that a required hearing or hearing opportunity was offered. The transcript will be accompanied by copies of all written statements from the public, both submitted at the public hearing or during an announced period after the public hearing.

    (vii) An opportunity for public involvement in defining the purpose and need and the range of alternatives, for any action subject to the project development procedures in 23 U.S.C. 139.

    (viii) Public notice and an opportunity for public review and comment on a Section 4(f) de minimis impact finding, in accordance with 49 U.S.C. 303(d).

    (i) Applicants for capital assistance in the FTA program:

    (1) Achieve public participation on proposed actions through activities that engage the public, including public hearings, town meetings, and charrettes, and seeking input from the public through scoping for the environmental review process. Project milestones may be announced to the public using electronic or paper media (e.g., newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For actions requiring EISs, an early opportunity for public involvement in defining the purpose and need for action and the range of alternatives must be provided, and a public hearing will be held during the circulation period of the draft EIS.

    (2) May participate in early scoping as long as enough project information is known so the public and other agencies can participate effectively. Early scoping constitutes initiation of NEPA scoping while local planning efforts to aid in establishing the purpose and need and in evaluating alternatives and impacts are underway. Notice of early scoping must be made to the public and other agencies. If early scoping is the start of the NEPA process, the early scoping notice must include language to that effect. After development of the proposed action at the conclusion of early scoping, FTA will publish the Notice of Intent if it is determined at that time that the proposed action requires an EIS. The Notice of Intent will establish a 30-day period for comments on the purpose and need and the alternatives.

    (3) Are encouraged to post and distribute materials related to the environmental review process, including but not limited to, NEPA documents (e.g., EAs and EISs), environmental studies (e.g., technical reports), public meeting announcements, and meeting minutes, through publicly-accessible electronic means, including project Web sites. Applicants are encouraged to keep these materials available to the public electronically until the project is constructed and open for operations.

    (4) Are encouraged to post all findings of no significant impact (FONSI), combined final environmental impact statement (FEIS)/records of decision (ROD), and RODs on a project Web site until the project is constructed and open for operation.

    (j) Information on the FTA environmental process may be obtained from: Director, Office of Environmental Programs, Federal Transit Administration, Washington, DC 20590, or www.fta.dot.gov. Information on the FHWA environmental process may be obtained from: Director, Office of Project Development and Environmental Review, Federal Highway Administration, Washington, DC 20590, or www.fhwa.dot.gov.

    7. Revise § 771.113 to read as follows:
    § 771.113 Timing of Administration activities.

    (a) The lead agencies, in cooperation with the applicant and project sponsor as appropriate, will perform the work necessary to complete the environmental review process. This work includes drafting environmental documents and completing studies, related engineering studies, agency coordination, and public involvement. Except as otherwise provided in law or in paragraph (d) of this section, final design activities, property acquisition, purchase of construction materials or rolling stock, or project construction shall not proceed until the following have been completed:

    (1)(i) The action has been classified as a CE;

    (ii) The Administration has issued a FONSI; or

    (iii) The Administration has issued a combined final EIS/ROD or a final EIS and ROD;

    (2) For actions proposed for FHWA funding, the Administration has received and accepted the certifications and any required public hearing transcripts required by 23 U.S.C. 128;

    (3) For activities proposed for FHWA funding, the programming requirements of 23 CFR part 450, subpart B, and 23 CFR part 630, subpart A, have been met.

    (b) For activities proposed for FHWA action, completion of the requirements set forth in paragraphs (a)(1) and (2) of this section is considered acceptance of the general project location and concepts described in the environmental review documents unless otherwise specified by the approving official.

    (c) Letters of Intent issued under the authority of 49 U.S.C. 5309(g) are used by FTA to indicate an intention to obligate future funds for multi-year capital transit projects. Letters of Intent will not be issued by FTA until the NEPA process is completed.

    (d) The prohibition in paragraph (a)(1) of this section is limited by the following exceptions:

    (1) Early acquisition, hardship and protective acquisitions of real property in accordance with 23 CFR part 710, subpart E for FHWA. Exceptions for the acquisitions of real property are addressed in paragraphs (c)(6) and (d)(3) of § 771.118 for FTA.

    (2) The early acquisition of right-of-way for future transit use in accordance with 49 U.S.C. 5323(q) and FTA guidance.

    (3) A limited exception for rolling stock is provided in 49 U.S.C. 5309(l)(6).

    8. Revise § 771.115 to read as follows:
    § 771.115 Classes of actions.

    There are three classes of actions which prescribe the level of documentation required in the NEPA process. A programmatic approach may be used for any class of action.

    (a) EIS (Class I). Actions that significantly affect the environment require an EIS (40 CFR 1508.27). The following are examples of actions that normally required an EIS:

    (1) A new controlled access freeway.

    (2) A highway project of four or more lanes on a new location.

    (3) Construction or extension of a fixed transit facility (e.g., rapid rail, light rail, commuter rail, bus rapid transit) that will not be located primarily within an existing transportation right-of-way.

    (4) For FHWA actions, new construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility.

    (5) For FTA actions, new construction or extension of a separate roadway for buses not located primarily within an existing transportation right-of-way.

    (b) CE (Class II). Actions that do not individually or cumulatively have a significant environmental effect are excluded from the requirement to prepare an EA or EIS. A specific list of CEs normally not requiring NEPA documentation is set forth in § 771.117(c) for FHWA actions or pursuant to § 771.118(c) for FTA actions. When appropriately documented, additional projects may also qualify as CEs pursuant to § 771.117(d) for FHWA actions or pursuant to § 771.118(d) for FTA actions.

    (c) EA (Class III). Actions in which the Administration has not clearly established the significance of the environmental impact. All actions that are not Class I or II are Class III. All actions in this class require the preparation of an EA to determine the appropriate environmental document required.

    9. Revise § 771.119 to read as follows:
    § 771.119 Environmental assessments.

    (a)(i) The applicant shall prepare an EA in consultation with the Administration for each action that is not a CE and does not clearly require the preparation of an EIS, or where the Administration believes an EA would assist in determining the need for an EIS.

    (ii) For FTA actions: When FTA or the applicant, as joint lead agency, select a contractor to prepare the EA, then the contractor shall execute an FTA conflict of interest disclosure statement. The statement must be maintained in the FTA Regional Office and with the applicant. The contractor's scope of work for the preparation of the EA will not be finalized until the early coordination activities or scoping process found in paragraph (b) of this section is completed (including FTA approval, in consultation with the applicant, of the scope of the EA content).

    (b) For actions that require an EA, the applicant, in consultation with the Administration, shall, at the earliest appropriate time, begin consultation with interested agencies and others to advise them of the scope of the project and to achieve the following objectives: Determine which aspects of the proposed action have potential for social, economic, or environmental impact; identify alternatives and measures which might mitigate adverse environmental impacts; and identify other environmental review and consultation requirements which should be performed concurrently with the EA. The applicant shall accomplish this through early coordination activities or through a scoping process. The applicant shall summarize the public involvement process and include the results of agency coordination in the EA.

    (c) The Administration must approve the EA before it is made available to the public as an Administration document.

    (d) The applicant does not need to circulate the EA for comment but the document must be made available for public inspection at the applicant's office and at the appropriate Administration field offices in accordance with paragraphs (e) and (f) of this section. The applicant shall send the notice of availability of the EA, which briefly describes the action and its impacts, to the affected units of Federal, State and local government. The applicant shall also send notice to the State intergovernmental review contacts established under Executive Order 12372.

    (e) When a public hearing is held as part of the environmental review process for an action, the EA shall be available at the public hearing and for a minimum of 15 days in advance of the public hearing. The applicant shall publish a notice of the public hearing in local newspapers that announces the availability of the EA and where it may be obtained or reviewed. Any comments must be submitted in writing to the applicant or the Administration during the 30-day availability period of the EA unless the Administration determines, for good cause, that a different period is warranted. Public hearing requirements are as described in § 771.111.

    (f) When a public hearing is not held, the applicant shall place a notice in a newspaper(s) similar to a public hearing notice and at a similar stage of development of the action, advising the public of the availability of the EA and where information concerning the action may be obtained. The notice shall invite comments from all interested parties. Any comments must be submitted in writing to the applicant or the Administration during the 30-day availability period of the EA unless the Administration determines, for good cause, that a different period is warranted.

    (g) If no significant impacts are identified, the applicant shall furnish the Administration a copy of the revised EA, as appropriate; the public hearing transcript, where applicable; copies of any comments received and responses thereto; and recommend a FONSI. The EA should also document compliance, to the extent possible, with all applicable environmental laws and Executive orders, or provide reasonable assurance that their requirements can be met.

    (h) When the FHWA expects to issue a FONSI for an action described in § 771.115(a), copies of the EA shall be made available for public review (including the affected units of government) for a minimum of 30 days before the Administration makes its final decision (See 40 CFR 1501.4(e)(2).) This public availability shall be announced by a notice similar to a public hearing notice.

    (i) If, at any point in the EA process, the Administration determines that the action is likely to have a significant impact on the environment, the preparation of an EIS will be required.

    (j) If the Administration decides to apply 23 U.S.C. 139 to an action involving an EA, then the EA shall be prepared in accordance with the applicable provisions of that statute.

    10. Revise § 771.121 to read as follows:
    § 771.121 Findings of no significant impact.

    (a) The Administration will review the EA, comments submitted on the EA (in writing or at public hearings/meetings), and other supporting documentation, as appropriate. If the Administration agrees with the applicant's recommendations pursuant to § 771.119(g), it will make a separate written FONSI incorporating by reference the EA and any other appropriate environmental documents.

    (b) After the Administration issues a FONSI, a notice of availability of the FONSI shall be sent by the applicant to the affected units of Federal, State, and local government, and the document shall be available from the applicant and the Administration upon request by the public. Notice shall also be sent to the State intergovernmental review contacts established under Executive Order 12372.

    (c) If another Federal agency has issued a FONSI on an action which includes an element proposed for Administration funding or approval, the Administration will evaluate the other agency's EA/FONSI. If the Administration determines that this element of the project and its environmental impacts have been adequately identified and assessed and concurs in the decision to issue a FONSI, the Administration will issue its own FONSI incorporating the other agency's EA/FONSI. If environmental issues have not been adequately identified and assessed, the Administration will require appropriate environmental studies.

    11. Revise § 771.123 to read as follows:
    § 771.123 Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration determines that the action is likely to cause significant impacts on the environment. When the applicant, after consultation with any project sponsor that is not the applicant, has notified the Administration in accordance with 23 U.S.C. 139(e) and the decision has been made by the Administration to prepare an EIS, the Administration will issue a Notice of Intent (40 CFR 1508.22) for publication in the Federal Register. Applicants are encouraged to announce the intent to prepare an EIS by appropriate means at the local level.

    (b) After publication of the Notice of Intent, the lead agencies, in cooperation with the applicant (if not a lead agency), will begin a scoping process that may take into account any planning work already accomplished, in accordance with 23 CFR 450.212, 450.318, or any applicable provisions of the CEQ regulations at 40 CFR parts 1500-1508. The scoping process will be used to identify the purpose and need, the range of alternatives and impacts, and the significant issues to be addressed in the EIS and to achieve the other objectives of 40 CFR 1501.7. Scoping is normally achieved through public and agency involvement procedures required by § 771.111. If a scoping meeting is to be held, it should be announced in the Administration's Notice of Intent and by appropriate means at the local level.

    (c) The draft EIS shall be prepared by the lead agencies, in cooperation with the applicant (if not a lead agency). The draft EIS shall evaluate all reasonable alternatives to the action and discuss the reasons why other alternatives, which may have been considered, were eliminated from detailed study. The draft EIS shall also summarize the studies, reviews, consultations, and coordination required by environmental laws or Executive orders to the extent appropriate at this stage in the environmental process.

    (d) Any of the lead agencies may select a consultant to assist in the preparation of an EIS in accordance with applicable contracting procedures and with 40 CFR 1506.5(c). For FTA actions: When FTA or the applicant, as joint lead agency, select a contractor to prepare the EIS, then the contractor shall execute an FTA conflict of interest disclosure statement. The statement must be maintained in the FTA Regional Office and with the applicant. The contractor's scope of work for the preparation of the EIS will not be finalized until the early coordination activities or scoping process found in paragraph (b) of this section is completed (including FTA approval, in consultation with the applicant, of the scope of the EIS content).

    (e) The draft EIS should identify the preferred alternative to the extent practicable. If the draft EIS does not identify the preferred alternative, the Administration should provide agencies and the public with an opportunity after issuance of the draft EIS to review the impacts.

    (f) At the discretion of the lead agency, the preferred alternative (or portion thereof) for a project, after being identified, may be developed to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or compliance with requirements for permitting. The development of such higher level of detail must not prevent the lead agency from making an impartial decision as to whether to accept another alternative that is being considered in the environmental review process.

    (g) The Administration, when satisfied that the draft EIS complies with NEPA requirements, will approve the draft EIS for circulation by signing and dating the cover sheet. The cover sheet should include a notice that after circulation of the draft EIS and consideration of the comments received, the Administration will issue a combined final EIS/ROD document unless statutory criteria or practicability considerations preclude issuance of the combined document.

    (h) A lead, joint lead, or a cooperating agency shall be responsible for printing the EIS. The initial printing of the draft EIS shall be in sufficient quantity to meet requirements for copies which can reasonably be expected from agencies, organizations, and individuals. Normally, copies will be furnished free of charge. However, with Administration concurrence, the party requesting the draft EIS may be charged a fee which is not more than the actual cost of reproducing the copy or may be directed to the nearest location where the statement may be reviewed.

    (i) The applicant, on behalf of the Administration, shall circulate the draft EIS for comment. The draft EIS shall be made available to the public and transmitted to agencies for comment no later than the time the document is filed with the Environmental Protection Agency in accordance with 40 CFR 1506.9. The draft EIS shall be transmitted to:

    (1) Public officials, interest groups, and members of the public known to have an interest in the proposed action or the draft EIS;

    (2) Cooperating and participating agencies. Copies shall be provided directly to appropriate State and local agencies, and to the State intergovernmental review contacts established under Executive Order 12372; and

    (3) States and Federal land management entities that may be significantly affected by the proposed action or any of the alternatives. These copies shall be accompanied by a request that such State or entity advise the Administration in writing of any disagreement with the evaluation of impacts in the statement. The Administration will furnish the comments received to the applicant along with a written assessment of any disagreements for incorporation into the final EIS.

    (j) When a public hearing on the draft EIS is held (if required by 23 CFR 771.111), the draft EIS shall be available at the public hearing and for a minimum of 15 days in advance of the public hearing. The availability of the draft EIS shall be mentioned, and public comments requested, in any public hearing notice and at any public hearing presentation. If a public hearing on an action proposed for FHWA funding is not held, a notice shall be placed in a newspaper similar to a public hearing notice advising where the draft EIS is available for review, how copies may be obtained, and where the comments should be sent.

    (k) The Federal Register public availability notice (40 CFR 1506.10) shall establish a period of not fewer than 45 days nor more than 60 days for the return of comments on the draft EIS unless a different period is established in accordance with 23 U.S.C. 139(g)(2)(A). The notice and the draft EIS transmittal letter shall identify where comments are to be sent.

    12. Add § 771.124 to read as follows:
    § 771.124 Final environmental impact statement/record of decision document

    (a)(1) After circulation of a draft EIS and consideration of comments received, the lead agencies, in cooperation with the applicant (if not a lead agency), shall combine the final EIS and record of decision (ROD), to the maximum extent practicable, unless:

    (i) The final EIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns; or

    (ii) There are significant new circumstances or information relevant to environmental concerns and that bear on the proposed action or the impacts of the proposed action.

    (2) When the combined final EIS/ROD is a single document, it shall include the content of a final EIS presented in § 771.125 and present the basis for the decision as specified in 40 CFR 1505.2, summarize any mitigation measures that will be incorporated in the project, and document any required Section 4(f) approval in accordance with part 774 of this title.

    (3) If the comments on the draft EIS are minor and confined to factual corrections or explanations that do not warrant additional agency response, an errata sheet may be attached to the draft statement, which together shall then become the combined final EIS/ROD.

    (4) A combined final EIS/ROD will be reviewed for legal sufficiency prior to issuance by the Administration.

    (5) The Administration shall indicate approval of the combined final EIS/ROD by signing the document. The provision on Administration's Headquarters prior concurrence in § 771.125(c) applies to the combined final EIS/ROD.

    (b) The Federal Register public availability notice published by EPA (40 CFR 1506.10) does not establish a waiting period or a period of time for the return of comments on a combined final EIS/ROD.

    13. Amend § 771.125 as follows: a. Remove paragraph (d) and redesignate paragraphs (e) through (g) as paragraphs (d) through (f); b. Revise newly redesignated paragraphs (e) through (f) and add new paragraph (g).

    The revisions read as follows:

    § 771.125 Final environmental impact statements.

    (e) The initial publication of the final EIS shall be in sufficient quantity to meet the request for copies which can be reasonably expected from agencies, organizations, and individuals. Normally, copies will be furnished free of charge. However, with Administration concurrence, the party requesting the final EIS may be charged a fee which is not more than the actual cost of reproducing the copy or may be directed to the nearest location where the statement may be reviewed.

    (f) The final EIS shall be transmitted to any persons, organizations, or agencies that made substantive comments on the draft EIS or requested a copy, no later than the time the document is filed with EPA. In the case of lengthy documents, the agency may provide alternative circulation processes in accordance with 40 CFR 1502.19. The applicant shall also publish a notice of availability in local newspapers and make the final EIS available through the mechanism established pursuant to DOT Order 4600.13 which implements Executive Order 12372. When filed with EPA, the final EIS shall be available for public review at the applicant's offices and at appropriate Administration offices. A copy should also be made available for public review at institutions such as local government offices, libraries, and schools, as appropriate.

    (g) The final EIS may take the form of an errata sheet pursuant to 40 CFR 1503.4(c).

    14. Revise § 771.127 to read as follows:
    § 771.127 Record of decision.

    (a) When the final EIS is not combined with the ROD, the Administration will complete and sign a ROD no sooner than 30 days after publication of the final EIS notice in the Federal Register or 90 days after publication of a notice for the draft EIS, whichever is later. The ROD will present the basis for the decision as specified in 40 CFR 1505.2, summarize any mitigation measures that will be incorporated in the project and document any required Section 4(f) approval in accordance with part 774 of this title.

    (b) If the Administration subsequently wishes to approve an alternative which was not identified as the preferred alternative but was fully evaluated in the final EIS, or proposes to make substantial changes to the mitigation measures or findings discussed in the ROD, a revised or amended ROD shall be subject to review by those Administration offices which reviewed the final EIS under § 771.124(a) or § 771.125(c). To the extent practicable the approved revised or amended ROD shall be provided to all persons, organizations, and agencies that received a copy of the final EIS.

    15. Revise § 771.129 to read as follows:
    § 771.129 Re-evaluations.

    The Administration shall determine, prior to granting any new approval related to an action or amending any previously approved aspect of an action, including mitigation commitments, whether an approved environmental document remains valid as described below:

    (a) The applicant shall prepare a written evaluation of the draft EIS in cooperation with the Administration if an acceptable final EIS is not submitted to the Administration within three years from the date of the draft EIS circulation. The purpose of this evaluation is to determine whether or not a supplement to the draft EIS or a new draft EIS is needed.

    (b) The applicant shall prepare a written evaluation of the final EIS before the Administration may grant further approvals if major steps to advance the action (e.g., authority to undertake final design, authority to acquire a significant portion of the right-of-way, or approval of the plans, specifications and estimates) have not occurred within three years after the approval of the final EIS, final EIS supplement, or the last major Administration approval or grant.

    (c) After the Administration issues a combined final EIS/ROD, ROD, FONSI, or CE designation, the applicant shall consult with the Administration prior to requesting any major approvals or grants to establish whether or not the approved environmental document or CE designation remains valid for the requested Administration action.

    16. Amend § 771.130 by removing paragraph (e) and redesignating paragraph (f) as paragraph (e), and revising it to read as follows:
    § 771.130 Supplemental environmental impact statements.

    (e) In some cases, an EA or supplemental EIS may be required to address issues of limited scope, such as the extent of proposed mitigation or the evaluation of location or design variations for a limited portion of the overall project. Where this is the case, the preparation of a supplemental document shall not necessarily:

    (1) Prevent the granting of new approvals;

    (2) Require the withdrawal of previous approvals; or

    (3) Require the suspension of project activities, for any activity not directly affected by the supplement. If the changes in question are of such magnitude to require a reassessment of the entire action, or more than a limited portion of the overall action, the Administration shall suspend any activities which would have an adverse environmental impact or limit the choice of reasonable alternatives, until the supplemental document is completed.

    17. Revise § 771.131 to read as follows:
    § 771.131 Emergency action procedures.

    Responses to some emergencies and disasters are categorical exclusions under § 771.117 for FHWA or § 771.118 for FTA. Otherwise, requests for deviations from the procedures in this regulation because of emergency circumstances (40 CFR 1506.11) shall be referred to the Administration's headquarters for evaluation and decision after consultation with CEQ.

    18. Revise § 771.133 to read as follows:
    § 771.133 Compliance with other requirements.

    (a) The combined final EIS/ROD, final EIS or FONSI should document compliance with requirements of all applicable environmental laws, Executive orders, and other related requirements. If full compliance is not possible by the time the combined final EIS/ROD, final EIS or FONSI is prepared, the combined final EIS/ROD, final EIS or FONSI should reflect consultation with the appropriate agencies and provide reasonable assurance that the requirements will be met. Approval of the environmental document constitutes adoption of any Administration findings and determinations that are contained therein. The FHWA's approval of an environmental document constitutes its finding of compliance with the report requirements of 23 U.S.C. 128.

    (b) In consultation with the Administration and subject to Administration approval, an applicant may develop a programmatic approach for compliance with the requirements of any law, regulation, or Executive order applicable to the project development process.

    § 771.139 [Amended]
    19. Revise § 771.139 by replacing “180” with “150” in the second and third sentences. PART 774—PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, AND HISTORIC SITES (SECTION 4(f)) 20. Revise the authority citation for part 774 to read as follows: Authority:

    23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.81 and 1.91.

    21. Revise § 774.11(i) to read as follows:
    § 774.11 Applicability.

    (i) When a property is formally reserved for a future transportation facility before or at the same time a park, recreation area, or wildlife and waterfowl refuge is established, and concurrent or joint planning or development of the transportation facility and the Section 4(f) resource occurs, then any resulting impacts of the transportation facility will not be considered a use as defined in § 774.17.

    (1) Formal reservation of a property for a future transportation use can be demonstrated by a government document created prior to or contemporaneously with the establishment of the park, recreation area, or wildlife and waterfowl refuge. Examples of an adequate document to formally reserve a future transportation use include:

    (i) A government map that depicts a transportation facility on the property;

    (ii) A land use or zoning plan depicting a transportation facility on the property; or

    (iii) A fully executed real estate instrument that references a future transportation facility on the property.

    (2) Concurrent or joint planning or development can be demonstrated by a government document created after, contemporaneously with, or prior to the establishment of the Section 4(f) property. Examples of an adequate document to demonstrate concurrent or joint planning or development include:

    (i) A government document that describes or depicts the designation or donation of the property for both the potential transportation facility and the Section 4(f) property; or

    (ii) A government agency map, memorandum, planning document, report, or correspondence that describes or depicts action taken with respect to the property by two or more governmental agencies with jurisdiction for the potential transportation facility and the Section 4(f) property, in consultation with each other.

    22. Amend § 774.13 by revising paragraphs (e) and (g) to read as follows:
    § 774.13 Exceptions.

    (e) Projects for the Federal lands transportation facilities described in 23 U.S.C. 101(a)(8).

    (g) Transportation enhancement activities, transportation alternatives projects, and mitigation activities, where:

    (1) The use of the Section 4(f) property is solely for the purpose of preserving or enhancing an activity, feature, or attribute that qualifies the property for Section 4(f) protection; and

    (2) The official(s) with jurisdiction over the Section 4(f) resource agrees in writing to paragraph (g)(1) of this section.

    TITLE 49—Transportation
    PART 622—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 23. Amend authority citation for part 622 to read as follows: Authority:

    42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 23 U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, Sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; and Pub. L. 112-141, 126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319.

    [FR Doc. 2015-29413 Filed 11-19-15; 8:45 am] BILLING CODE 4910-22-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 5 [Docket No. FR-5863-P-01] RIN 2506-AC40 Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs AGENCY:

    Office of the Secretary, HUD.

    ACTION:

    Proposed rule.

    SUMMARY:

    As the Nation's housing agency, HUD administers programs designed to meet the goal of ensuring decent housing and a suitable living environment for all. In furtherance of this goal, in February 2012, HUD promulgated a final rule entitled “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” (Equal Access Rule), which requires that HUD-assisted and HUD-insured housing be made available without regard to actual or perceived sexual orientation, gender identity, or marital status, and which generally prohibits inquiries into sexual orientation or gender identity for the purpose of determining eligibility for such housing or otherwise making such housing available. HUD's Equal Access Rule provides a limited exception for inquiries about the sex of an individual to determine eligibility for housing provided or to be provided to the individual when the housing is a temporary, emergency shelter that involves the sharing of sleeping areas or bathrooms, or for inquiries made for the purpose of determining the number of bedrooms to which a household may be entitled. At that time, HUD decided not to set national policy regarding how transgender persons would be accommodated in temporary, emergency shelters that involve shared sleeping quarters or shared bathing facilities, but instead decided to monitor and review its programs to determine if transgender individuals had greater access to temporary, emergency shelters as a result of the rule or if additional guidance or a national policy was warranted. HUD also committed to review the prohibition on inquiries contained in the Equal Access Rule. HUD has now monitored and reviewed its programs and, based on that review, is proposing this rule to require recipients and subrecipients of assistance from HUD's Office of Community Planning and Development (CPD), as well as owners, operators, and managers of shelters, buildings, and other facilities and providers of services covered by CPD's programs, to provide transgender persons and other persons who do not identify with the sex they were assigned at birth with access to programs, benefits, services, and accommodations in accordance with their gender identity. This proposed rule would also amend the definition of “gender identity” included in HUD's Equal Access Rule so the definition more clearly reflects the difference between actual and perceived gender identity. Finally, HUD has completed its review of the inquiries provision, and the proposed rule would eliminate the Equal Access Rule's current prohibition on inquiries related to sexual orientation or gender identity, while maintaining the prohibition against discrimination on those bases.

    DATES:

    Comment Date: January 19, 2016.

    ADDRESSES:

    Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.

    1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.

    2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

    Note:

    To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.

    Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m., weekdays, at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals who are deaf or hard of hearing and individuals with speech impairments may access this number via TTY by calling the Federal Relay Service, toll free, at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-7000; telephone number 202-708-4300 (this is not a toll-free number). Persons who are deaf or hard of hearing and persons with speech impairments can access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    SUPPLEMENTARY INFORMATION:

    I. Background

    In order to address evidence of arbitrary exclusion of lesbian, gay, bisexual, and transgender individuals (LGBT) and their families from housing opportunities, HUD published its Equal Access Rule in the Federal Register on February 3, 2012, at 77 FR 5662. The Equal Access Rule, codified primarily at 24 CFR 5.100 and 5.105(a)(2) and in applicable program regulations, defines the terms sexual orientation and gender identity, at 24 CFR 5.100, and requires, at 24 CFR 5.105(a)(2), that housing assisted or insured by HUD be made available to individuals and families without regard to an individual's actual or perceived sexual orientation, gender identity, or marital status. Certain other rules governing HUD housing programs were revised to clarify that all otherwise eligible families, regardless of sexual orientation, gender identity, or marital status of any member, have the opportunity to participate in HUD programs. The 2012 rule also revised 24 CFR 203.33(b) by adding sexual orientation and gender identity, in addition to marital status, to the characteristics that an FHA-certified lender may not take into consideration in determining the adequacy of a mortgagor's income.

    Further, § 5.105(a)(2)(ii) prohibits owners and administrators of HUD-assisted or HUD-insured housing, approved lenders in a Federal Housing Administration (FHA) mortgage insurance program, and any other recipients or subrecipients of HUD funds from inquiring about sexual orientation or gender identity to determine eligibility for HUD-assisted or HUD-insured housing or otherwise make such housing available. The prohibition on inquiries regarding sexual orientation or gender identity does not prohibit individuals from voluntarily self-identifying sexual orientation or gender identity. Further, the rule provides a limited exception for inquiries about the sex of an individual to determine eligibility for housing provided or to be provided in temporary, emergency shelters with shared sleeping areas or bathrooms, or to determine the number of bedrooms to which a household may be entitled.

    In response to public comments recommending that HUD-assisted programs accommodate individuals in accordance with their gender identity, HUD stated in the preamble to the Equal Access Rule that it was not adopting a national policy on the placement of transgender persons in temporary, emergency shelters with shared sleeping quarters or shared bathing facilities at that time, but would instead monitor its programs to determine whether additional guidance or a national policy was needed to ensure equal access. In response to comments on the permissibility of inquiries about an individual's sex, HUD stated in the preamble to the Equal Access Rule that HUD would monitor its programs and review the prohibition on inquiries to determine whether additional guidance was necessary to provide transgender individuals with equal access to shelters and other housing. The Fair Housing Act 1 prohibits discrimination in the sale, rental, making unavailable, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, and national origin, and thus prohibits making housing unavailable to a person because of that person's sex. However, temporary, emergency shelters and other buildings and facilities that are not covered by the Fair Housing Act 2 because they provide short-term, temporary accommodations may provide sex-segregated accommodations, when the buildings and facilities have physical limitations or configurations that require shared sleeping quarters or shared bathing facilities.3

    1 42 U.S.C. 3601 et seq. The Fair Housing Act contains no exemptions that permit covered housing to be sex-segregated. See 42 U.S.C. 3603(b) (limited exemptions for sales of certain single-family homes and for rooms or units in certain owner-occupied dwellings), sec. 3607 (exemptions for private clubs and religious organizations).

    2 An emergency shelter and other building and facility that would not qualify as dwellings under the Fair Housing Act are not subject to the Act's prohibition against sex discrimination and thus may be permitted by statute to be sex-segregated.

    3 For purposes of this proposed rule, shared sleeping quarters or shared bathing facilities are those that do not accommodate privacy. For example, a single user bathing facility with a lock on the door accommodates privacy, so it is not a “shared bathing facility” for purposes of the Equal Access Rule or this proposed rule.

    Since the publication of the Equal Access Rule, HUD has conducted further review on the issue of transgender individuals' access to temporary, emergency shelters and other facilities with physical limitations or configurations that require shared sleeping quarters or bathing facilities, both in terms of individual cases and evidence from broader research. In this regard, HUD and the U.S. Interagency Council on Homelessness conducted a listening session on LGBT issues at the National Alliance to End Homelessness's 2012 National Conference on Ending Homelessness, where homeless service providers reported that, if given the choice between a shelter designated for their assigned birth sex or sleeping on the streets, many transgender shelter-seekers would choose the streets.4 One participant reported that, in her community, transgender women are excluded from the women's shelter, and conditions for them are so dangerous at the men's shelter that the shelter forces them to try to disguise their gender identity. HUD has also investigated several cases in which transgender persons have not been provided equal access to housing as required by the Equal Access Rule or have faced discrimination under the Fair Housing Act because of nonconformance with gender stereotypes.

    4 See http://usich.gov/blog/hud_usich_hears_from_you_understanding_the_needs_of_the_lgbt_homeless_popul.

    National research indicates that these denials of access are a common occurrence. According to one major national survey on the experiences of transgender persons, nearly half (47 percent) of all transgender respondents who accessed shelters left those shelters because of the treatment they received there—choosing the street over the abuse and indignity they experienced in the shelters.5 This survey further reported that 25 percent of transgender individuals who stayed in shelters were physically assaulted, and 22 percent were sexually assaulted, by another resident or shelter staff.6

    5 Jamie M. Grant Et Al, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality, 118 (2011).

    6 See Jamie M. Grant Et Al, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality, footnote 5 at 117-18 (2011).

    The experiences of homeless transgender youth, specifically, have also been documented, with similar findings of lack of access to housing and services. While research suggests that transgender youth represent less than one percent of the youth in the United States,7 a disproportionately high 6.8 percent of youth living on the streets identify as transgender.8 In addition, a report detailing case studies of runaway and homeless youth found that transgender youth were particularly at risk of emotional distress resulting from discrimination or harassment because of gender identity and supported establishing clear nondiscrimination and antiharassment policies relating to gender identity. With respect to facilities with shared sleeping or bathing areas, the policies recommended include addressing the needs of transgender persons and other persons who do not identify with the sex assigned to the individual at birth.9 A recent report on experiences of homeless LGBT youth also calls for the creation of safe and supportive protocols for housing and placement specific to transgender individuals and individuals who do not conform with gender stereotypes.10

    7 Hannah Hussey, Beyond 4 walls and a Roof: Addressing Homelessness Among Transgender Youth, Center for American Progress, 4 (2015).

    8 Administration for Children and Families, Street Outreach Program: Data Collection Project Executive Summary (U.S. Department of Health and Human Services, 2014).

    9 Andrew Burwick Et Al, Identifying and Serving LGBTQ Youth: Case Studies of Runaway and Homeless Youth Program Grantees, Mathematica Policy Research and the Williams Institute, 19 (2014).

    10 Meredith Dank Et Al, Surviving the streets of New York: Experiences of LGBTQ youth, YMSM, and YWSW Engaged in Survival Sex. Urban Institute, 70 (2015).

    HUD has also reviewed steps that other Federal agencies have taken since the Equal Access Rule was promulgated in February 2012 to provide equal access for transgender persons and other persons who do not conform with gender stereotypes.

    U.S. Department of Justice Guidance. On April 9, 2014, the Office for Civil Rights, Office of Justice Programs, at the U.S. Department of Justice (DOJ) published guidance entitled “Frequently Asked Questions: Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013” 11 (VAWA 2013 FAQ). VAWA 2013 authorizes certain grants administered by DOJ, including grants to provide housing assistance for survivors of domestic violence. VAWA 2013 also imposes a new grant condition that prohibits discrimination by recipients of such grants on the basis of sexual orientation and gender identity. The VAWA 2013 FAQ, which is not applicable to HUD-assisted housing,12 addresses how a recipient of DOJ funds can operate a single-sex facility funded through VAWA and not discriminate on the basis of gender identity. The DOJ guidance states:

    11 The guidance can be found at http://www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf.

    12 Unlike HUD program statutes, which do not authorize single-sex housing, VAWA 2013 specifically authorizes funding for single-sex shelters in certain narrowly defined circumstances.

    A recipient that operates a sex-segregated or sex-specific program should assign a beneficiary 13 to the group or service which corresponds to the gender with which the beneficiary identifies, with the following considerations. In deciding how to house a victim, a recipient that provides sex-segregated housing may consider on a case-by-case basis whether a particular housing assignment would ensure the victim's health and safety. A victim's own views with respect to personal safety deserve serious consideration. The recipient should ensure that its services do not isolate or segregate victims based upon actual or perceived gender identity. A recipient may not make a determination about services for one beneficiary based on the complaints of another beneficiary when those complaints are based on gender identity.

    13 The beneficiary is the individual seeking services from the recipient or service provider.

    For the purpose of assigning a beneficiary to sex-segregated or sex-specific services, best practices dictate that the recipient should ask a transgender beneficiary which group or service the beneficiary wishes to join. The recipient may not, however, ask questions about the beneficiary's anatomy or medical history or make burdensome demands for identity documents.14

    14See Department of Justice, Frequently Asked Questions: Nondiscrimination Grant Conditions in the Violence Against Women Reauthorization Act of 2013 (Apr. 9, 2013), FAQ 14, available at http://www.ovw.usdoj.gov/docs/faqs-ngc-vawa.pdf.

    U.S. Department of Education Guidance. Similarly, on December 1, 2014, the U.S. Department of Education's Office for Civil Rights issued guidance providing that “under Title IX [of the Education Amendments of 1972, which prohibits discrimination based on sex], a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.” 15

    15 The guidance can be found at http://www.ed.gov/ocr/docs/faqs-title-ix-single-sex-201412.pdf. In this guidance the Department of Education considers discrimination based on gender identity as a form of sex discrimination. The guidance states, in relevant part: “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.” See also the Department of Education's guidance, “Questions and Answers on Title IX and Sexual Violence,” which makes clear that sexual violence against transgender students is a form of sex discrimination prohibited by Title IX. The guidance can be found at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. In addition to this guidance, the Department of Labor, Office of Job Corps, issued guidance ensuring equal access and opportunity for transgender applicants and students in the Job Corps Program; see “Ensuring Equal Access for Transgender Applicants and Students to the Job Corps Program” issued May 1, 2015, available at https://supportservices.jobcorps.gov/health/Pages/PINotices.aspx.

    Given HUD's mission to provide equal housing opportunities for all, and the significant violence, harassment, and discrimination faced by transgender individuals and other persons who do not identify with the sex they were assigned at birth in attempting to access programs, benefits, services, and accommodations, HUD has a responsibility to provide leadership in establishing a policy for HUD's community development programs that addresses these serious concerns. After considering the feedback from HUD recipients and subrecipients, the experiences of the beneficiaries of HUD's community development programs who have been denied access because of their gender identity, research on transgender discrimination in shelter settings, and the actions taken by other Federal agencies to address access to programs, benefits, services, and accommodations in accordance with an individual's gender identity, CPD released Notice CPD-015-02, “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities,” applicable to the Housing Opportunities for Persons with AIDS, Emergency Solutions Grants, and Continuum of Care programs, on February 20, 2015.16 This guidance states:

    16 See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    HUD assumes that a recipient or subrecipient (“provider”) that makes decisions about eligibility for or placement into single-sex emergency shelters or other facilities will place a potential client (or current client seeking a new assignment) in a shelter or facility that corresponds to the gender with which the person identifies, taking health and safety concerns into consideration. A client's or potential client's own views with respect to personal health and safety should be given serious consideration in making the placement. For instance, if the potential client requests to be placed based on his or her sex assigned at birth, HUD assumes that the provider will place the individual in accordance with that request, consistent with health, safety, and privacy concerns. HUD assumes that a provider will not make an assignment or re-assignment based on complaints of another person when the sole stated basis of the complaint is a client or potential client's non-conformance with gender stereotypes.17

    17 See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    CPD's guidance also outlines best practices for appropriate and inappropriate inquiries related to sex, and states that where a provider is uncertain of the client's sex or gender identity, the provider informs the client or potential client that the agency provides shelter based on the individual's gender identity. The guidance further states that there generally is no legitimate reason for the provider to request documentation of a person's sex in order to determine appropriate placement, nor should the provider have any basis to deny access to a single-sex emergency shelter or facility solely because the provider possesses identity documents indicating a sex different than the client's or potential client's gender identity. Further, the provider may not ask questions or otherwise seek information or documentation concerning the person's anatomy or medical history, nor consider a client ineligible for an emergency shelter or other facility because the client's appearance or behavior does not conform with gender stereotypes. In addition, the guidance provides examples of steps that providers may take to address safety or privacy concerns, and says that providers should train staff on adhering to this guidance.18

    18 See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    II. This Proposed Rule

    To adopt requirements consistent with the guidance recently published by HUD, HUD is proposing to add in 24 CFR part 5 a new section that would require recipients and subrecipients of assistance under the HOME Investment Partnerships program, Community Development Block Grant program, Housing Opportunities for Persons with AIDS program, Emergency Solutions Grants program, and the Continuum of Care program, as well as owners, operators, and managers of shelters and other buildings and facilities and providers of services funded in whole or in part by any of these programs, to provide equal access to programs, benefits, services, and accommodations in accordance with an individual's gender identity. If the proposed rule becomes a final rule, the final rule would be effective upon receipt of assistance after the effective date of the final rule. Nothing in this proposed rule is meant to prevent necessary and appropriate steps to address any fraudulent attempts to access services or legitimate safety concerns that may arise in any shelter, building, or facility covered by this rule.

    Prior to discussing the requirements that would be established in this section, it is important to clarify which individuals would be covered by the protections of this new section. While some individuals refer to themselves as transgender, other persons who do not identify with the sex they were assigned at birth may use other terms to describe themselves. For this reason, the proposed rule seeks to ensure that all individuals, regardless of the terms they use to describe themselves, are afforded equal access to programs, benefits, services, and accommodations in accordance with their gender identity.

    The following requirements would be established by this proposed rule:

    § 5.100—Revised definition of gender identity.

    HUD is proposing to amend the definition of gender identity in § 5.100, which currently provides that “Gender identity means actual or perceived gender-related characteristics.” This definition of gender identity, which was adopted by HUD in its 2012 Equal Access Rule for purposes of ensuring equal access in HUD-assisted and HUD-insured housing, is the same definition that was used in the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. 249. While this definition is effective for purposes of prosecuting hate crimes, HUD has concluded that it would be more effective for purposes of ensuring equal access to HUD programs to separate the definitions of actual and perceived gender identity. The Department is therefore proposing to amend the definition of gender identity to read as follows: “Gender identity means the gender with which a person identifies, regardless of the sex assigned to that person at birth. Perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender-related characteristics, or sex assigned to the individual at birth.” Perceived gender identity may differ from the identity with which a person identifies.

    § 5.106—Providing access in accordance with an individual's gender identity in community planning and development programs.

    HUD proposes to add a new § 5.106, which would contain equal access provisions specifically tailored to HUD's community development programs. This proposed new provision would be placed after the more general equal access provisions applicable to all HUD housing programs, added in 2012 to § 5.105.

    Section 5.106(a) would identify the programs covered by the new § 5.106. Section 5.106 would apply to recipients and subrecipients of assistance under the HOME Investment Partnerships program (24 CFR part 92), Community Development Block Grant program (24 CFR part 570), Housing Opportunities for Persons with AIDS program (24 CFR part 574), Emergency Solutions Grants program (24 CFR part 576), or Continuum of Care program (24 CFR part 578), as well as to owners, operators, and managers of shelters and other buildings and facilities and providers of services funded in whole or in part by any of these programs.

    Section 5.106(b) is the operative provision in § 5.106. Under this subsection, a recipient, subrecipient, or provider would be required to establish, amend, or maintain program admissions, occupancy, and operating policies and procedures, including policies and procedures to protect individuals' privacy and security, so that equal access is provided to individuals based on their gender identity. This requirement includes tenant selection and admission preferences. The provision also requires that services, benefits, and accommodations be provided in a manner that affords equal access to the individual's family.19

    19 As noted above, the Fair Housing Act prohibits familial status discrimination. Accordingly, housing providers covered by the Fair Housing Act may not discriminate based on familial status unless the housing meets statutory and regulatory requirements for housing for older persons. 42 U.S.C. 3607(b); 24 CFR part 100, subpart E.

    Section 5.106(c) addresses temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require shared sleeping quarters or shared bathing facilities. This section requires that the placement and accommodation of individuals in such facilities that are permitted to be single-sex because they are not covered by the Fair Housing Act must be made in accordance with the individual's gender identity.

    The only exception to the requirement to accommodate and serve a person in accordance with the individual's gender identity is that the recipient, subrecipient, owner, operator, manager, or provider may consider, on a case-by-case basis, whether a particular housing assignment would ensure health and safety. It is prohibited for such a determination to be based solely on a person's actual or perceived gender identity or on complaints of other shelter residents when those complaints are based on actual or perceived gender identity. It is likewise prohibited to deny appropriate placement based on a perceived threat to health or safety that can be mitigated some other less burdensome way (e.g., providing the transgender shelter seeker the option to use single-use bathing facilities).

    Section 5.106(d) requires that when such a determination is made, the recipient, subrecipient, owner, operator, manager, or provider is required to provide either (1) equivalent alternative accommodation, benefits, and services or (2) a referral to a comparable alternative program that meets the needs of the individual. HUD expects the recipient, subrecipient, owner, operator, manager, or provider to refer the individual to a comparable alternative program that can more appropriately mitigate or eliminate the safety risk and that has available accommodations, or offer the individual equivalent alternative accommodation (e.g., a hotel or motel voucher), benefits, and services. HUD anticipates that the use of this limited exception for the provision of equivalent alternative accommodations, benefits, and services or referral to a comparable alternative program would be rare, since it would not apply unless the facts and circumstances demonstrated a nondiscriminatory risk to health or safety that could not be eliminated or appropriately mitigated by policy adjustments and physical modifications to buildings and facilities.

    Section 5.106(e) requires that records of case-by-case determinations must be kept by the recipient, subrecipient, owner, operator, manager, or provider, including when the determination is made that an individual cannot safely be served in accordance with the individual's gender identity. Where an alternative placement is made, recipients, subrecipients, owners, operators, managers, or providers must thoroughly document the reasons for that placement, in accordance with the recordkeeping requirements established in this subsection. Further, the recordkeeping section proposes that when a referral is made, the recipient, subrecipient, owner, operator, manager, or provider documents the facts and circumstances regarding the referral and whether the individual and the individual's family, in instances where the individual presents with a family, has been admitted and accommodated.

    § 5.105(a)(2)(ii)—Removal of prohibited inquiries.

    In the preamble to HUD's 2012 Equal Access Rule, HUD stated that it would review the prohibition of inquiries in § 5.105(a)(2)(ii) following monitoring of the application of this provision in HUD programs. As discussed earlier in this preamble, CPD released Notice CPD-015-02 “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities,” applicable to the Housing Opportunities for Persons with AIDS, Emergency Solutions Grants, and Continuum of Care programs, on February 20, 2015,20 which provided that HUD expected recipients, subrecipients, and providers to accommodate individuals in accordance with the individual's gender identity. The guidance states that where a provider is uncertain of the client's sex or gender identity and that information matters for the determination of placement, the provider informs the client or potential client that the agency provides shelter based on the individual's gender identity. HUD now believes, however, that the prohibition of inquiries at § 5.105(a)(2)(ii) may hinder a provider from making an appropriate placement decision for fear of violating the rule. For this reason, HUD is proposing to remove the prohibition of inquiries.

    20 See https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    HUD's intent in proposing removal of § 5.105(a)(2)(ii) is not to now permit recipients or subrecipients to ask questions in order to seek information that could be used for discriminatory purposes. Rather, HUD is proposing removal because § 5.105(a)(2)(ii) has raised several legitimate questions about implementation. Removal of § 5.105(a)(2)(ii) would allow shelters and other facilities with physical limitations or configurations that require shared sleeping quarters or shared bathing facilities to ask the individual's gender identity, and it would permit inquiries of the individual's gender identity and sexual orientation to determine the number of bedrooms to which a household is entitled. Removal of § 5.105(a)(2)(ii) also reaffirms that HUD permits mechanisms for voluntary and anonymous reporting of sexual orientation or gender identity for compliance with data collection requirements of State and local governments or Federal assistance programs.

    III. Findings and Certifications Regulatory Review—Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order.

    This proposed rule is consistent with Administration policy, as has been noted in the preamble by citing to policy already implemented by the U.S Department of Education, the U.S. Department of Justice, the U.S. Department of Labor, and the CPD guidance already implemented by HUD. This proposed rule clarifies how facilities funded by CPD that have shared sleeping quarters or shared bathing facilities comply with the requirement that equal access be provided to programs, buildings, facilities, services, benefits, and accommodations in accordance with the individual's gender identity. This clarification should provide benefits to clients accessing CPD-funded, temporary, emergency shelters and other buildings and facilities by assuring all clients receive equal access, and will benefit the CPD-funded facilities by making compliance with HUD's equal access requirements easier.

    In this proposed rule, HUD recognizes a limited exception to accommodating individuals in accordance with the individual's gender identity when a recipient, subrecipient, owner, operator, manager, or provider identifies a legitimate safety risk that cannot be eliminated or appropriately mitigated and makes a written case-by-case analysis. The written case-by-case analysis only applies when the benefits, services, and accommodations are not being provided to an individual in accordance with the individual's gender identity. The written case-by-case analysis benefits the client accessing the services and the recipient, subrecipient, owner, operator, manager, or provider by keeping a record of when a legitimate safety risk is identified. The recipient, subrecipient, owner, operator, manager, or provider must also undertake reasonable efforts to ensure that equivalent alternative accommodations are provided or refer the individual to a comparable alternative program that will meet the individual's needs. This proposed rule also seeks to amend the definition of gender identity in § 5.100 to clarify the difference between actual and perceived gender identity, which would be necessary if proposed § 5.106 is adopted. This proposed rule also would eliminate the prohibition on inquiries relating to sexual orientation or gender identity in § 5.105(a)(2)(ii). Both of these proposed changes would make it easier for recipients, subrecipients, owners, operators, managers, and providers of programs, buildings, and facilities funded by CPD programs to comply with the requirements of existing § 5.105(a)(2)(i) and proposed § 5.106. An estimate of the cost of recording and retaining that written case-by-case analysis, in the limited situations in which it may apply, is discussed in the Paperwork Reduction Act section of this proposed rule.

    The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-402-3055 (this is not a toll-free number). Individuals who are deaf or hard of hearing and individuals with speech impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Approximately 4,000 providers participating in the CPD programs covered by this rule are small organizations, but the number of entities that would address the accommodation needs addressed by this rule is much lower. The benefit of this proposed rule is to ensure equal access to CPD programs, facilities, services, benefits, and accommodations. The rule does require organizations to make a written case-by-case analysis and referral in limited situations. Although HUD does not have any way to determine the number of written case-by-case analyses or referrals that will occur in any one year, HUD does not believe that costs will be significant for small service providers and estimates it will take a provider 15 minutes per case-by-case analysis and referral. HUD invites interested parties to provide data with which HUD can formulate better estimates of the compliance costs associated with the written notice and referral requirements of this proposed rule. Accordingly, for the foregoing reasons, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this proposed rule would not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives and the principles in Executive Order 13559, as described in this preamble.

    Paperwork Reduction Act

    The proposed rule requires CPD programs to include a written case-by-case analysis and make referrals. This rule also requires the retention of records to show that the case-by-case analysis was followed and referral requirements in this rulemaking have been met. HUD estimates that a case-by-case analysis and referral will be required infrequently given that the case-by-case analysis is only necessary when the provider is not providing accommodations to an individual in accordance with the gender with which an individual identifies because there is a legitimate safety risk that cannot be eliminated or appropriately mitigated. HUD estimates that only 0.05 percent of facilities that are covered by this proposed regulation will need to make a written case-by-case analysis and referral, and estimates it will take an individual 15 minutes to complete the case-by-case analysis and referral. This estimate includes the time required to write down the basis for the analysis, identify service providers that provide similar services, and make the referral.

    The information collection requirements for the CPD's HOME Investment Partnerships program, Community Development Block Grant program (State and entitlement), Housing Opportunities for Persons with AIDS program, Emergency Solutions Grants program, or Continuum of Care program impacted by this rule have been approved by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control numbers 2506-0171, 2506-0085, 2506-0077, 2506-0133, 2506-0089, and 2506-0199. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number. The existing forms will be changed to include the new recordkeeping requirement added by this proposed rule.

    In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information 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 estimate of the burden of the proposed collection of information.

    (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 collection techniques or other forms of information technology (e.g., by permitting electronic submission of responses).

    Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must refer to the proposed rule by name and docket number (FR-5583-P-01) and must be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503, Fax number: 202-395-6947; and Reports Liaison Officer, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9128, Washington, DC 20410.

    Interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

    Environmental Impact

    This proposed rule sets forth nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

    Executive Order 13132, Federalism

    Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) Imposes substantial direct compliance costs on State and local governments and is not required by statute or (ii) preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.

    Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments, or on the private sector, within the meaning of the UMRA.

    List of Subjects in 24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Drug abuse, Drug traffic control, Grant programs—housing and community development, Grant programs—Indians, Individuals with disabilities, Loan programs—housing and community development, Low and moderate income housing, Mortgage insurance, Pets, Public housing, Rent subsidies, Reporting and recordkeeping requirements.

    PART 5—GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS 1. The authority citation for 24 CFR part 5 continues to read as follows: Authority:

    42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d), Sec. 327, Pub. L. 109-115, 119 Stat. 2936, and Sec. 607, Pub. L. 109-162, 119 Stat. 3051.

    2. In § 5.100, revise the definition for “Gender identity” to read as follows:
    § 5.100 Definitions.

    Gender identity means the gender with which a person identifies, regardless of the sex assigned to that person at birth. Perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender related characteristics, or sex assigned to the individual at birth.

    § 5.105 [Amended]
    3. In § 5.105, remove paragraph (a)(2)(ii) and redesignate paragraph (a)(2)(i) as paragraph (a)(2). 4. Add § 5.106 to read as follows:
    § 5.106 Providing access in accordance with the individual's gender identity in community planning and development programs.

    (a) Applicability. This section applies to recipients and subrecipients of assistance under the HOME Investment Partnerships program (24 CFR part 92), Community Development Block Grant program (24 CFR part 570), Housing Opportunities for Persons with AIDS program (24 CFR part 574), Emergency Solutions Grants program (24 CFR part 576), or Continuum of Care program (24 CFR part 578), as well as to owners, operators, and managers of shelters and other buildings and facilities and providers of services funded in whole or in part by any of these programs.

    (b) Equal access in accordance with gender identity. The admissions, occupancy, and operating policies and procedures of recipients, subrecipients, owners, operators, managers, and providers identified in paragraph (a) of this section, including policies and procedures to protect privacy and security, shall be established or amended, as necessary, and administered so:

    (1) Equal access to programs, shelters, other buildings and facilities, benefits, services, and accommodations is provided to individuals in accordance with the individual's gender identity, and in a manner that affords equal access to the individual's family; and

    (2) Individuals are placed, served, and accommodated in accordance with the individual's gender identity.

    (c) Placement and accommodation in facilities with shared sleeping quarters or shared bathing facilities. Placement and accommodation of individuals in shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities shall be made in accordance with the individual's gender identity. Under narrow circumstances, a written case-by-case determination can be made as to whether an alternative accommodation is necessary to ensure health and safety. It shall be prohibited for such a determination to be based solely on a person's actual or perceived gender identity, the complaints of other clients, beneficiaries, or employees when those complaints are based on actual or perceived gender identity, or on an actual or perceived threat to health or safety that can be mitigated in some other way that is less burdensome. In order to avoid unwarranted denials of placement in accordance with an individual's gender identity, decisions to provide accommodations based on concern for the health and safety of the individual seeking accommodations should be based on the individual's own request to be otherwise accommodated.

    (d) Referrals. In any instance in which a case-by-case determination is made under paragraph (c) of this section, the recipient, subrecipient, owner, operator, manager, or provider shall ensure that an opportunity to access equivalent alternative accommodations, benefits, and services is provided or shall refer the individual to a comparable alternative program with availability that will meet the individual's needs.

    (e) Documentation and record retention. Providers shall document and maintain records of compliance with the requirements in paragraphs (b), (c), and (d) of this section for a period of 5 years, including but not limited to:

    (1) The specific facts, circumstances, and reasoning relied upon in any case-by-case determination that results in an alternative admission, accommodation, benefit, or service to an individual or their family;

    (2) The facts and circumstances regarding the opportunities to access alternative accommodations that are provided to an individual and their families by the recipient, subrecipient, owner, operator, manager, or provider; and

    (3) The facts, circumstances, and outcomes regarding each referral of an individual and their family to a comparable alternative program, including information regarding the benefits, services, and accommodations received.

    Dated: October 23, 2015. Julián Castro, Secretary.
    [FR Doc. 2015-29342 Filed 11-19-15; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-134219-08] RIN 1545-BI82 Relief From Joint and Several Liability AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed regulations relating to relief from joint and several liability under section 6015 of the Internal Revenue Code (Code). The regulations reflect changes in the law made by the Tax Relief and Health Care Act of 2006 as well as changes in the law arising from litigation. The regulations provide guidance to married individuals who filed joint returns and later seek relief from joint and several liability.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by February 18, 2016.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-134219-08), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-134219-08), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC; or sent electronically via the Federal eRulemaking Portal at www.regulations.gov (IRS REG-134219-08).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Nancy Rose at (202) 317-6844; concerning submissions of comments contact Oluwafunmilayo Taylor, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Background

    This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) for relief from joint and several liability under section 6015 of the Code and relief from the operation of state community property law under section 66.

    Section 6013(a) permits a husband and wife to file a joint income tax return. Section 6013(d)(3) provides that spouses filing a joint income tax return are jointly and severally liable for liabilities for tax arising from that return. The term “tax” includes additions to tax, additional amounts, penalties, and interest. See sections 6665(a)(2) and 6601(e)(1). Joint and several liability allows the IRS to collect the entire liability from either spouse who signed the joint return, without regard to whom the items of income, deduction, credit, or basis that gave rise to the liability are attributable. Prior to 1998, section 6013(e) provided limited relief from joint and several liability. In 1998, Congress enacted the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206, 112 Stat. 685 (1998), which repealed section 6013(e) and replaced it with section 6015. Section 6015 applies to liabilities arising after July 22, 1998, and liabilities that arose on or before July 22, 1998, but remained unpaid as of that date.

    Section 6015 provides three avenues for relief from joint and several liability—sections 6015(b), (c) and (f). To be eligible for relief from joint and several liability, a spouse must request relief. Under section 6015(b), a requesting spouse may be entitled to relief from joint and several liability for an understatement of tax attributable to erroneous items of the nonrequesting spouse. Section 6015(c) permits a taxpayer who is divorced, separated, widowed, or who had been living apart from the other spouse for 12 months to allocate his or her tax deficiency between the spouses as if separate returns had been filed. Claims for relief under section 6015(b) and (c) must be made within two years of the IRS's first collection activity against the requesting spouse. Finally, section 6015(f) confers discretion upon the Commissioner to grant equitable relief from joint and several liability for understatements and underpayments, based on all the facts and circumstances. Regulations under section 6015 were first prescribed in TD 9003, Federal Register (67 FR 47278) on July 18, 2002.

    These proposed amendments are necessary to carry out the provisions of section 6015 and to reflect changes in the law since the publication of TD 9003. On December 20, 2006, Congress enacted the Tax Relief and Health Care Act of 2006, Public Law 109-432, div. C, title IV, section 408, 120 Stat. 2922, 3061-62 (2006) (the 2006 Act). The 2006 Act amended section 6015 to provide the United States Tax Court with jurisdiction to review the Commissioner's determination to deny equitable relief under section 6015(f) when the Commissioner has not determined a deficiency and to suspend the period of limitation for collection under section 6502 when relief is requested only under section 6015(f). The proposed regulations also provide clarification and additional guidance on procedural and substantive issues related to the three types of relief from joint and several liability under section 6015.

    Section 66 provides relief for a spouse who did not file a joint return in a community property state and did not include in gross income an item of community income that would be attributable solely to the nonrequesting spouse but for the operation of state community property law. Regulations under section 66 were first prescribed in TD 9074, Federal Register (68 FR 41067) on July 10, 2003. The proposed regulations under section 66 contain only non-substantive changes.

    Recently, other amendments to the regulations under section 6015 were proposed in a notice of proposed rulemaking (REG-132251-11) published in the Federal Register (78 FR 49242) on August 13, 2013. Those regulations proposed changes to § 1.6015-5 to remove the two-year deadline for taxpayers to file requests for equitable relief under section 6015(f), and other changes related to the time and manner for requesting relief. Additionally, on September 16, 2013, the IRS issued Rev. Proc. 2013-34 (2013-2 CB 397). Rev. Proc. 2013-34 revised the factors used in determining if a requesting spouse is eligible for equitable relief under sections 66(c) and 6015(f).

    Explanation of Provisions

    These regulations propose to make a number of significant changes to the existing regulations. These changes include providing additional guidance on the judicial doctrine of res judicata and the section 6015(g)(2) exception to res judicata when a requesting spouse did not meaningfully participate in a prior court proceeding. The regulations propose to add a list of acts to be considered in making the determination as to whether the requesting spouse meaningfully participated in a prior proceeding and provide examples of the operation of these rules. The regulations also (1) propose a definition of underpayment or unpaid tax for purposes of section 6015(f); (2) provide detailed rules regarding credits and refunds in innocent spouse cases; (3) expand the rule that penalties and interest are not separate items from which relief can be obtained to cases involving underpayments; (4) incorporate an administratively developed rule that attribution of an erroneous item follows the attribution of the underlying item that caused the increase to adjusted gross income (AGI); (5) update the discussion of the allocation rules under section 6015(c) and (d); and (6) revise the rules regarding prohibition on collection and suspension of the collection statute.

    1. Section 1.6015-1

    The procedures for requesting relief on Form 8857, “Request for Innocent Spouse Relief,” under section 6015 have changed since 2006 because of the amendments to section 6015(e) made by Section 408 of Title IV of Division C of the 2006 Act. The amendments to section 6015(e) conferred jurisdiction on the Tax Court to review the Commissioner's denial of relief under section 6015(f) in cases in which a deficiency had not been asserted. The amendments also provided for a prohibition on collection and a corresponding tolling of the collection statute under section 6502 upon the filing of a request for relief under section 6015(f). The amendments apply to any liability for taxes arising on or after December 20, 2006, and to any liability for taxes arising before December 20, 2006, and remaining unpaid as of that date. As a result of the amendments, any request for relief under section 6015 will toll the collection statute, making it unnecessary for a spouse to elect or request a particular type of relief as required under § 1.6015-1(a)(2) of the current regulations. Accordingly, § 1.6015-1 and all sections referencing an election under §§ 1.6015-2 and 1.6015-3 or a request for relief under § 1.6015-4 are proposed to be revised to reflect that a requesting spouse is no longer required to elect or request relief under a specific provision of section 6015. Thus, beginning with the June 2007 revision to the Form 8857, a requesting spouse makes a single request for relief on Form 8857. Section 1.6015-1 is also being revised to provide that the IRS will consider in all cases whether the requesting spouse is eligible for relief under § 1.6015-2 or § 1.6015-3, and if relief is not available under either of those sections, under § 1.6015-4.

    Section 6015(g)(2) provides an exception to the common law doctrine of res judicata except in a case in which relief under section 6015 was at issue in a prior court proceeding or if a requesting spouse meaningfully participated in a prior proceeding. in which relief under section 6015 could have been raised Current § 1.6015-1(e) is being revised in these proposed regulations to provide more detailed guidance on how the exception to res judicata and the meaningful participation rule work, and to reflect developments in the case law since 2002 (described below). Proposed § 1.6015-1(e)(1) restates the general rule from the current regulations.

    Proposed § 1.6015-1(e)(2) incorporates the holding in Deihl v. Commissioner, 134 T.C. 156 (2010) (When a requesting spouse generally raises relief under section 6015 in a proceeding but does not specifically plead relief under any subsection of section 6015, relief under section 6015(c) will not be treated as being at issue in that proceeding if the requesting spouse was not eligible to elect relief under section 6015(c) because the requesting spouse was not divorced, widowed, legally separated, or living apart for 12 months at any time during the prior proceeding.).

    Proposed § 1.6015-1(e)(3) provides guidance on the meaningful participation exception to res judicata provided by section 6015(g)(2). A requesting spouse meaningfully participated in the prior proceeding if the requesting spouse was involved in the proceeding so that the requesting spouse could have raised the issue of relief under section 6015 in that proceeding. Meaningful participation is a facts and circumstances determination. A nonexclusive list of acts was added in proposed § 1.6015-1(e)(3) to provide indicators of “meaningful participation” within the context of a bar against relief based on the judicial doctrine of res judicata. Whether a requesting spouse meaningfully participated in a prior proceeding is based on all the facts and circumstances. No one act necessarily determines the outcome. The degree of importance of each act varies depending on the requesting spouse's facts and circumstances. The following acts, derived from case law and experience since 2002, are among the acts the IRS and courts consider in making the determination regarding meaningful participation: Whether the requesting spouse participated in the IRS Appeals process while the prior case was docketed; whether the requesting spouse participated in discovery; whether the requesting spouse participated in pretrial meetings, settlement negotiations, or trial; whether the requesting spouse signed court documents; and whether the requesting spouse was represented by counsel in the prior proceedings.

    Proposed § 1.6015-1(e)(3)(i) provides a new rule under which the requesting spouse will not be considered to have meaningfully participated in the prior proceeding if the requesting spouse establishes that the requesting spouse performed any of the acts listed in proposed § 1.6015-1(e)(3) because the nonrequesting spouse abused or maintained control over the requesting spouse, and the requesting spouse did not challenge the nonrequesting spouse for fear of the nonrequesting spouse's retaliation. Proposed § 1.6015-1(e)(3)(ii) restates the rule from the current regulations that a requesting spouse did not meaningfully participate in a prior proceeding if, due to the effective date of section 6015, relief under section 6015 was not available in that proceeding.

    Proposed § 1.6015-1(e)(3)(iii) provides that in a case petitioned from a statutory notice of deficiency under section 6213, the fact that the requesting spouse did not have the ability to effectively contest the underlying deficiency is irrelevant for purposes of determining whether the requesting spouse meaningfully participated in the prior proceeding. Treasury and the IRS disagree with the holding in Harbin v. Commissioner, 137 T.C. 93 (2011), in which the Tax Court concluded that Mr. Harbin did not meaningfully participate in the deficiency case in part because he could not effectively contest the part of the deficiency related to his ex-wife's gambling losses without her. The Tax Court found that Mr. Harbin could not effectively contest this part of the deficiency without his ex-wife because she “was the one with personal knowledge of the winnings and losses from the gambling activities” and was the one “who maintained and provided all of the documentation relating to the gambling activities.” The Tax Court concluded that this knowledge and control of the documentation resulted in Mr. Harbin's ex-wife effectively exercising “exclusive control” of the case. Harbin v. Commissioner, 137 T.C. at 98.

    Treasury and the IRS believe that the Tax Court applied the incorrect standard to determine whether a taxpayer meaningfully participated in a proceeding for purposes of section 6015(g)(2). The purpose of the meaningful participation exception to res judicata is not to ensure that a taxpayer had the opportunity to contest the deficiency but rather to ensure that the taxpayer could have raised relief under section 6015. Moore v. Commissioner, T.C. Memo. 2007-156. This is evident because, if section 6015 relief was at issue in the prior case, the taxpayer is not permitted to raise section 6015 relief in a subsequent proceeding regardless of the degree to which the taxpayer participated or whether taxpayer's ability to contest the deficiency was impaired. See Deihl v. Commissioner, 134 T.C. 156, 161 (2010).

    Proposed § 1.6015-1(e)(4) provides examples of how the rules in paragraphs (e)(1), (e)(2), and (e)(3) work. Proposed § 1.6015-1(e)(5) restates the collateral estoppel rule from current § 1.6015-1(e) without change.

    Proposed § 1.6015-1(h)(1) and (h)(5) are being revised to remove the distinction between electing and requesting relief as discussed earlier in this preamble.

    Proposed § 1.6015-1(h)(6) defines “unpaid tax” for purposes of § 1.6015-4. For purposes of § 1.6015-4, the regulations propose that the terms “unpaid tax” and “underpayment” have the same meaning. The unpaid tax or underpayment on a joint return is the balance shown as due on the return reduced by the tax paid with the return or paid on or before the due date for payment (without considering any extension of time to pay). The balance due is determined after applying withholding credits, estimated tax payments, payments with an extension, and other credits applied against the total tax reported on the return. Payments made with the return include payments made by check in the same envelope with the return or remitted at a later date (but before the due date for payment) with Form 1040-V, “Payment Voucher.” Payments made with the return also include remittances made by direct debit, credit card, or other commercially acceptable means under section 6311 on or before the due date for payment. The determination of the existence and amount of unpaid tax is made as of the date the joint return is filed, or as of the due date for payment if payments are made after the return is filed but on or before the due date.

    If the payments made with the joint return, including any payments made on or before the due date for payment (without considering any extension of time for payment), completely satisfy the balance due shown on the return, then there is no unpaid tax for purposes of § 1.6015-4. A requesting spouse is not entitled to be considered for relief (credit or refund) under § 1.6015-4 for any tax paid with the joint return (including a joint amended return). Payments made after the later of the date the joint return is filed or the due date for payment (without considering any extension of time for payment), including offsets of overpayments from other tax years, do not change the amount of unpaid tax reported on the joint return. Under § 1.6015-4, a requesting spouse can only get relief from the unpaid tax on the return, and if refunds are available, from any payments made on the liability after the later of the date the joint return was filed or the due date for payment (without considering any extension of time for payment).

    Proposed § 1.6015-1(h)(7) and (h)(8) define understatement and deficiency, respectively. Section 6015(b)(3) provides that an “understatement” for purposes of section 6015 has the same meaning given to that term by section 6662(d)(2)(A). The definition of understatement is in current § 1.6015-2(b) and therefore only applies to requests under that section. The term “understatement,” however, is a term that is relevant to relief under sections 6015(b), (c), and (f). These regulations propose to move the definition of “understatement” to proposed § 1.6015-1(h)(7) to allow a consistent definition to apply throughout the regulations. Likewise, proposed § 1.6015-1(h)(8) adds a definition of deficiency, by reference to section 6211 and the regulations under section 6211, to clarify that the term deficiency has the same meaning throughout the regulations.

    Section 6015(g)(1) provides that requesting spouses generally can receive a credit or refund of payments made on the joint liability if the requesting spouse is entitled to relief under section 6015. This general rule is set forth in proposed § 1.6015-1(k)(1). Section 6015(g) also provides some limitations on the availability of credit or refund. New § 1.6015-1(k)(2) through (5) discuss these and other limitations on credit or refund when a requesting spouse is eligible for relief.

    Proposed § 1.6015-1(k)(2) sets forth the limitation on refunds from section 6015(g)(3) when a requesting spouse is entitled to relief under § 1.6015-3. Proposed § 1.6015-1(k)(3) sets forth the rule from current § 1.6015-4(b) that relief under § 1.6015-4 is not available when the requesting spouse is entitled to full relief under § 1.6015-3 but is not entitled to a refund because of the limitation in section 6015(g)(3) and proposed § 1.6015-1(k)(2). Proposed § 1.6015-1(k)(4) incorporates, consistent with section 6015(g)(1), the limitations on credit or refund provided by sections 6511 (general limitations on credits or refunds) and 6512(b) (limitations on credits or refunds where the Tax Court determines that a taxpayer made an overpayment). This section also clarifies that, in general, Form 8857 will be treated as the requesting spouse's claim for credit or refund.

    Proposed § 1.6015-1(k)(5) sets forth the general rule that a requesting spouse who is entitled to relief is generally not eligible for a credit or refund of joint payments made with the nonrequesting spouse. Under the proposed rule, a requesting spouse, however, may be eligible for a credit or refund of the requesting spouse's portion of the requesting and nonrequesting spouse's joint overpayment from another tax year that was applied to the joint income tax liability to the extent that the requesting spouse can establish his or her contribution to the overpayment. Both spouses have an interest in a joint overpayment relative to each spouse's contribution to the overpayment. See, for example, Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir. 1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”). If the requesting spouse contributed to the joint overpayment through withholding, estimated tax, or other payments, then the requesting spouse may be entitled to a refund of that portion of the overpayment that was applied to the joint liability. Under the proposed rule, a requesting spouse in a state that is not a community property state may establish his or her portion of a joint overpayment using the allocation rules of Rev. Rul. 80-7 (1980-1 CB 296), or successor guidance. A requesting spouse in a community property state may establish his or her portion of a joint overpayment using the allocation rules of Rev. Rul. 2004-71 (2004-2 CB 74), Rev. Rul. 2004-72 (2004-2 CB 77), Rev. Rul. 2004-73 (2004-2 CB 80), or Rev. Rul. 2004-74 (2004-2 CB 84), or successor guidance, whichever is applicable to the state in which the requesting spouse is domiciled. For copies of Revenue Procedures, Revenue Rulings, notices, and other guidance published in the Internal Revenue Bulletin, please visit the IRS Web site at http://www.irs.gov.

    These proposed regulations reflect the elimination of the more restrictive rule regarding credit or refund when relief is granted under § 1.6015-4 in cases involving a deficiency, as provided by Rev. Proc. 2013-34. A credit or refund, subject to the limitations in § 1.6015-1(k), is available to a requesting spouse who is entitled to relief under § 1.6015-4 in both underpayment and deficiency cases.

    Current § 1.6015-1(h)(4) provides, in part, that penalties and interest are not separate erroneous items from which a requesting spouse can be relieved separate from the tax. Rather, relief from penalties and interest related to an understatement or deficiency will generally be determined based on the proportion of the total erroneous items from which the requesting spouse is relieved.

    Thus, under the existing regulations, a requesting spouse who is determined not to be eligible for relief from the understatement or deficiency stemming from an erroneous item cannot be separately relieved from a penalty, such as the accuracy-related penalty, related to the item under section 6015. If a requesting spouse is entitled to partial relief (such as relief from two of three erroneous items giving rise to the understatement or deficiency), then the requesting spouse will be entitled to relief from the accuracy-related penalty applicable to those two items.

    These regulations propose to move the discussion in current § 1.6015-1(h)(4) to proposed § 1.6015-1(m). Proposed § 1.6015-1(m) additionally clarifies, consistent with the statutory interpretation in current § 1.6015-1(h)(4), that penalties and interest on an underpayment also are not separate items from which a requesting spouse may obtain relief under § 1.6015-4. Rather, relief from penalties and interest on the underpayment will be determined based on the amount of relief from the underpayment to which the requesting spouse is entitled. If a requesting spouse remains liable for a portion of the underpayment after application of § 1.6015-4, the requesting spouse is not eligible for relief under section 6015 for the penalties and interest related to that portion of the underpayment. Cf. Weiler v. Commissioner, T.C. Memo. 2003-255 (a requesting spouse is not relieved from liabilities for penalties and interest resulting from items attributable to the requesting spouse). This position is consistent with how the IRS currently treats relief from penalties and interest after determining the relief from the underlying tax. See IRM 25.15.3.4.1.1(2) (Revised 03/08/2013).

    If an assessed deficiency is paid in full, or the unpaid tax reported on the joint return is later paid in full, but penalties and interest remain unpaid, under the proposed rule, a requesting spouse may be considered for relief from the penalties and interest under section 6015. The determination of relief from the penalties and interest is made by considering whether the requesting spouse would be entitled to relief from the underlying tax and not considering the penalties and interest as if they were separate items. A requesting spouse may be relieved from the penalties and interest even if relief in the form of a refund of the payments made on the underlying tax is barred (for example, § 1.6015-1(k)(2) (no refunds allowed under § 1.6015-3) or § 1.6015-1(k)(4) (refund barred by the limitations of sections 6511 or 6512(b)).

    Proposed § 1.6015-1(n) provides attribution rules for a portion of an understatement or deficiency relating to the disallowance of certain items. Specifically, § 1.6015-1(n) addresses items that are otherwise not erroneous items, but are disallowed solely due to the increase of adjusted gross income (or modified adjusted gross income) over a phase-out threshold as a result of an erroneous item attributable to the nonrequesting spouse. One common example of this is when the nonrequesting spouse's omitted income increases adjusted gross income so that the Earned Income Tax Credit (EITC) is phased out and the understatement or deficiency partially represents the recapture of the refunded EITC.

    Under proposed § 1.6015-1(n), the understatement or deficiency related to the item disallowed due to the increase to adjusted gross income will be attributable to the spouse whose erroneous item caused the increase to adjusted gross income, unless the evidence shows that a different result is appropriate. If the increase to adjusted gross income is the result of erroneous items of both spouses, the item disallowed due to the increase to adjusted gross income will be attributable to the requesting spouse in the same ratio as the amount of the item or items attributable to the requesting spouse over the total amount of the items that resulted in the increase to adjusted gross income. Corresponding rules are proposed to be added to §§ 1.6015-2(b) and 1.6015-3(c)(2)(i) to provide that a requesting spouse knows or has reason to know of the item disallowed due to the increase in adjusted gross income if the requesting spouse knows or has reason to know of the erroneous item or items that resulted in the increase to adjusted gross income. Likewise, for purposes of proposed § 1.6015-4 and Rev. Proc. 2013-34, a requesting spouse knows or has reason to know of the portion of an understatement or deficiency related to an item attributable to the nonrequesting spouse under § 1.6015-1(n) if the requesting spouse knows or has reason to know of the nonrequesting spouse's erroneous item or items that resulted in the increase to adjusted gross income.

    Examples are provided to illustrate how this rule applies in situations involving the EITC, the phase-out of itemized deductions, and the application of the alternative minimum tax. This rule, however, can be implicated in other situations. It should be noted that this proposed rule would not apply if there is another reason for disallowing the item, such as no qualifying child for the EITC, no substantiation for a claimed deduction, or the lack of any basis in law or fact for the deduction. In this situation, the normal attribution rules applicable to §§ 1.6015-2, 1.6015-3, and 1.6015-4 apply.

    Proposed § 1.6015-1(o) provides a definition of abuse for purposes of proposed §§ 1.6015-2(b) and 1.6015-3(c)(vi). The definition of abuse is taken directly from Rev. Proc. 2013-34, section 4.03(2)(c)(iv).

    2. Section 1.6015-2

    Only minor substantive changes are proposed to current § 1.6015-2. The proposed amendments reorganize the section, update references, and provide clarification where needed. Proposed § 1.6015-2(a) changes the language in the existing regulations, “the requesting spouse elects the application of this section,” to “the requesting spouse requests relief” consistent with the discussion earlier in this preamble. The definition of “understatement” in current § 1.6015-2(b) is removed as the definition will now be located in proposed § 1.6015-1(h)(7). Current § 1.6015-2(c) is redesignated as proposed § 1.6015-2(b), adds additional facts and circumstances from Rev. Proc. 2013-34 to consider in determining whether a requesting spouse had reason to know, adds a knowledge rule to correspond to proposed § 1.6015-1(n) as discussed earlier in this preamble, and clarifies, consistent with the changes made in Rev. Proc. 2013-34, that abuse or financial control by the nonrequesting spouse will result in the requesting spouse being treated as not having knowledge or reason to know of the items giving rise to the understatement. Current § 1.6015-2(d) is redesignated as proposed § 1.6015-2(c) and provides an updated cross-reference to the most recent revenue procedure providing the criteria to be used in determining equitable relief, Rev. Proc. 2013-34. Current § 1.6015-2(e)(1) is redesignated as proposed § 1.6015-2(d)(1) and the word “only” is removed to clarify the rule. Current § 1.6015-2(e)(2) is redesignated as proposed § 1.6015-2(d)(2) and the example is updated to use more current years and dates, but otherwise no substantive changes were made.

    3. Section 1.6015-3

    Among other clarifying changes, these regulations propose to clarify the difference between full and partial relief under section 6015(c) and to reflect case law regarding the tax benefit rule of section 6015(d)(3)(B), including new examples.

    Proposed § 1.6015-3(a) provides a revised heading and a cross-reference to the definition of deficiency in proposed § 1.6015-1(h)(8).

    Section 6015(g)(3) provides that no credit or refund is allowed as a result of an allocation of a deficiency under section 6015(c). Proposed § 1.6015-3(c)(1) clarifies the existing regulations and provides that whether relief is available to a requesting spouse under section 6015(c) is not dependent on the availability of credit or refund. Thus, if a requesting spouse is eligible to allocate the entire deficiency to the nonrequesting spouse, the requesting spouse has received full relief even if the requesting spouse made payments on the deficiency and is not entitled to a refund of those payments because of section 6015(g)(3). Further, the requesting spouse is not eligible to be considered for relief (and a refund) under section 6015(f) for the amount of any paid liability because a prerequisite to relief under section 6015(f) is the unavailability of relief under section 6015(b) or (c) and the spouse received full relief under section 6015(c). A requesting spouse may still be considered for relief (and a refund) under section 6015(b) for the amount of any paid liability. If a requesting spouse only receives partial relief (for example, some part of the deficiency is still allocated to the requesting spouse), then the requesting spouse may be considered for relief under section 6015(f) for the portion of the deficiency allocable to the requesting spouse. A new sentence is added to § 1.6015-3(c)(2)(i) to add a knowledge rule to correspond to proposed § 1.6015-1(n), which, as discussed earlier in this preamble, provides an attribution rule for the portion of a deficiency relating to the disallowance or reduction of an otherwise valid item solely due to the increase in AGI as a result of the disallowance of an erroneous item.

    Proposed § 1.6015-3(d)(2)(i) illustrates that, under the tax benefit rule of section 6015(d)(3)(B), the amount of an erroneous item allocated to a requesting spouse may increase or decrease depending upon the tax benefit to the requesting and nonrequesting spouses. Thus, these proposed regulations adopt the holding of Hopkins v. Commissioner, 121 T.C. 73 (2003) (a requesting spouse was entitled to relief from her own item under the tax benefit rule of section 6015(d)(3)(B) because the nonrequesting spouse was the only person who reported income on the returns, and therefore, the only one who received any tax benefit from the item). In addition, five new examples have been added to § 1.6015-3(d)(5) to provide additional guidance on the application of the tax benefit rule of § 1.6015-3(d)(2)(i). Example 7 demonstrates the application of § 1.6015-3(d)(2)(i)(B), which provides that each spouse's hypothetical separate taxable income may need to be determined to properly apply the tax benefit rule. Example 8 demonstrates the holding in Hopkins by showing that a requesting spouse's allocated portion of a deficiency will be decreased when the nonrequesting spouse receives a tax benefit from the item. Example 9 demonstrates the allocation of a liability when the erroneous item is a loss from a jointly-owned investment. Example 10 demonstrates how the tax benefit rule works when the erroneous item is a loss from a jointly-owned investment. In addition, Example 11 is added to demonstrate how the rule in § 1.6015-3(d)(2)(ii) regarding fraud works.

    Section 1.6015-3(c)(2)(iv) currently provides that the requesting spouse's joint ownership (with the nonrequesting spouse) of the property that resulted in the erroneous item is a factor that may be relied upon in demonstrating that the requesting spouse had actual knowledge of the item. Under the tax benefit rule of § 1.6015-3(d)(2)(i), as stated earlier in this preamble, a requesting spouse can be relieved of liability for the requesting spouse's own erroneous item if the item is otherwise allocable in full or in part to the nonrequesting spouse under section 6015(d). Therefore, proposed § 1.6015-3(c)(2)(iv) revises the current regulations to clarify that the requesting spouse's separate ownership of the erroneous item is also a factor that may be relied upon in demonstrating that the requesting spouse had actual knowledge of the item. Current § 1.6015-3(c)(2)(v) is redesignated as proposed § 1.6015-3(c)(2)(vi) and the discussion of community property in current § 1.6015-3(c)(iv) is removed and is now located in proposed § 1.6015-3(c)(2)(v). Proposed § 1.6015-3(c)(vi) is revised to clarify, consistent with the changes made in Rev. Proc. 2013-34, that abuse or financial control by the nonrequesting spouse will result in the requesting spouse being treated as not having actual knowledge of the items giving rise to the understatement.

    4. Section 1.6015-4

    No substantive changes are proposed to current § 1.6015-4. The proposed amendments update references and provide a clarifying change consistent with proposed § 1.6015-3(c)(1), which provides the rule that refunds are not allowed under section 6015(c).

    Proposed § 1.6015-4(a) was revised to provide a cross-reference to the definitions of unpaid tax, understatement, and deficiency in proposed §§ 1.6015-1(h)(6), (h)(7), and (h)(8).

    Proposed § 1.6015-4(b) was revised to provide a cross-reference to proposed § 1.6015-1(k)(3). The paragraph also clarifies that if only partial relief is available under § 1.6015-3, then relief may be considered under § 1.6015-4 for the portion of the deficiency for which the requesting spouse remains liable.

    Proposed § 1.6015-4(c) replaces the citation to Rev. Proc. 2000-15 (2000-1 CB 447) with Rev. Proc. 2013-34, which revised the factors used in determining if the requesting spouse is eligible for equitable relief under section 6015(f).

    5. Section 1.6015-5

    A notice of proposed rulemaking (REG-132251-11) was published in the Federal Register (78 FR 49242) on August 13, 2013. Those regulations proposed changes to § 1.6015-5 to remove the two-year deadline for taxpayers to file requests for equitable relief under section 6015(f), and other changes related to the time and manner for requesting relief. These proposed regulations revise the notice of proposed rulemaking published on August 13, 2013 to add an effective date provision.

    6. Section 1.6015-6

    The changes in proposed § 1.6015-6 are intended to update the current regulations to reflect existing practice and guidance. Proposed § 1.6015-6(a)(1) replaces the term “election” under § 1.6015-2 or § 1.6015-3 with “request for relief.” Proposed § 1.6015-6(a)(2) includes a reference to Rev. Proc. 2003-19 (2003-1 CB 371), which provides guidance on a nonrequesting spouse's right to appeal a preliminary determination to IRS Appeals.

    7. Section 1.6015-7

    Section 1.6015-7 was revised to reflect the amendments to section 6015(e) in the 2006 Act that, as noted earlier in this preamble, conferred jurisdiction on the United States Tax Court to review the IRS's denial of relief in cases in which taxpayers requested equitable relief under section 6015(f), without regard to whether the IRS has determined a deficiency. Prior to these amendments, the United States Tax Court lacked jurisdiction to review section 6015(f) determinations if no deficiency had been determined. The amendments apply to any liability for tax that arose on or after December 20, 2006, and any liability for tax that arose before December 20, 2006, but remained unpaid as of that date. Proposed § 1.6015-7(c) revises the current regulations to reflect the changes to the restrictions on collection and corresponding tolling of the collection statute under section 6502. On versions of the Form 8857 dated before June 2007 a requesting spouse could request relief under just one subsection of section 6015. For claims for relief that were made under sections 6015(b) and (c) (and the corresponding §§ 1.6015-2 and 1.6015-3), the IRS is prohibited from collecting against the requesting spouse (and the collection statute is tolled) beginning on the date the claim is filed. For requests for relief made solely under section 6015(f) (and the corresponding § 1.6015-4), the IRS is prohibited from collecting against the requesting spouse (and the collection statute is tolled) only for liabilities arising on or after December 20, 2006, or liabilities arising before December 20, 2006, but remaining unpaid as of that date. For requests for relief made solely under § 1.6015-4, the restrictions on collection and tolling of the collection statute do not start until December 20, 2006, for any requests filed before that date, assuming the tax remained unpaid as of that date. The restrictions on collection and tolling of the collection statute start as of the date the request is filed for requests filed on or after December 20, 2006.

    8. Section 1.66-4

    The only changes to the existing regulations under section 66 are non-substantive changes. Proposed § 1.66-4(a)(3) and (b) replace the citation to Rev. Proc. 2000-15 with Rev. Proc. 2013-34, which revised the factors used in determining whether a requesting spouse is eligible for equitable relief under section 66(c).

    9. Effective and Applicability Dates

    Additionally, the effective and applicability date sections in the regulations under section 66 and section 6015 are reorganized to move the effective and applicability date sections within the specific regulation to which the dates apply. The separate effective date sections under §§ 1.66-5 and 1.6015-9 are removed.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Accordingly, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. chapter 6). Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in the preamble under the “Addresses” heading. Treasury and the IRS request comments on all aspects of the proposed regulations. All comments will be available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these regulations is Nancy Rose of the Office of the Associate Chief Counsel (Procedure and Administration).

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding the following entries in numerical order as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.66-1 also issued under 26 U.S.C. 66(c).

    Section 1.66-2 also issued under 26 U.S.C. 66(c).

    Section 1.66-3 also issued under 26 U.S.C. 66(c).

    Par. 2. Section 1.66-1 is amended by adding paragraph (d) to read as follows:
    § 1.66-1 Treatment of community income.

    (d) Effective/applicability date. This section is applicable beginning July 10, 2003.

    Par. 3. Section 1.66-2 is amended by adding paragraph (e) to read as follows:
    § 1.66-2 Treatment of community income where spouses live apart.

    (e) Effective/applicability date. This section is applicable beginning July 10, 2003.

    Par. 4. Section 1.66-3 is amended by adding paragraph (d) to read as follows:
    § 1.66-3 Denial of the Federal income tax benefits resulting from the operation of community property law where spouses not notified.

    (d) Effective/applicability date. This section is applicable beginning July 10, 2003.

    Par. 5. Section 1.66-4 is amended by:

    1. The last sentence of paragraphs (a)(3) and (b) are revised.

    2. Paragraph (l) is added and reserved.

    3. Paragraph (m) is added.

    The revisions and additions read as follows:

    § 1.66-4 Request for relief from the Federal income tax liability resulting from the operation of community property law.

    (a) * * *

    (3) * * * Factors relevant to whether it would be inequitable to hold a requesting spouse liable, more specifically described under the applicable administrative procedure issued under section 66(c) (Rev. Proc. 2013-34 (2013-2 CB 397) (See § 601.601(d)(2) of this chapter), or other applicable guidance published by the Secretary), are to be considered in making a determination under this paragraph (a).

    (b) * * * Factors relevant to whether it would be inequitable to hold a requesting spouse liable, more specifically described under the applicable administrative procedure issues under section 66(c) (Rev. Proc. 2013-34 (2013-2 CB 397) (See § 601.601(d)(2) of this chapter), or other applicable guidance published by the Secretary), are to be considered in making a determination under this paragraph (b).

    (l) [Reserved]

    (m) Effective/applicability date. This section is applicable beginning July 10, 2003, except that paragraphs (a)(3) and (b) of this section will be applicable on the date of publication of a Treasury Decision adopting these rules as final regulations in the Federal Register.

    § 1.66-5 [Removed]
    Par. 6. Section 1.66-5 is removed. Par. 7. Section 1.6015-0 is amended by: 1. In § 1.6015-1, entries for paragraphs (e)(1), (e)(2), (e)(3), (e)(4), (e)(5), (h)(6), (h)(7), (h)(8), (k), (l), (m), (n), (o), and (p) are added and the entry for paragraph (h)(5) is revised. 2. In § 1.6015-2, entries for paragraphs (b), (c), (d), and (e) are revised and the entries for paragraphs (e)(1) and (e)(2) are removed. 3. In § 1.6015-3, entries for paragraphs (a) and (c)(2)(v) are revised and entries for paragraphs (c)(2)(vi), (d)(2)(i)(A), (d)(2)(i)(B), and (e) are added. 4. In § 1.6015-4, an entry for paragraph (d) is added. 5. In § 1.6015-5, an entry for paragraph (d) is added. 6. In § 1.6015-6, an entry for paragraph (d) is added. 7. In § 1.6015-7, entries for paragraphs (c)(1) and (c)(4)(iii) are revised and entries for paragraphs (c)(1)(i), (c)(1)(ii), (c)(1)(iii), and (d) are added. 8. In § 1.6015-8, an entry for paragraph (d) is added. 9. Section 1.6015-9 entry is removed.

    The revisions and additions read as follows:

    § 1.6015-0 Table of contents. § 1.6015-1 Relief from joint and several liability on a joint return.

    (e) * * *

    (1) In general.

    (2) Situations in which relief under § 1.6015-3 will not be considered to have been at issue in the prior proceeding.

    (3) Meaningful participation.

    (4) Examples.

    (5) Collateral estoppel.

    (h) * * *

    (5) Request for relief.

    (6) Unpaid tax and underpayment.

    (7) Understatement.

    (8) Deficiency.

    (k) Credit or refund.

    (1) In general.

    (2) No credit or refund allowed under § 1.6015-3.

    (3) No circumvention of §§ 1.6015-1(k)(2) and 1.6015-3(c)(1).

    (4) Limitations on credit or refund.

    (5) Requesting spouse limited to credit or refund of payments made by the requesting spouse.

    (l) [Reserved]

    (m) Penalties and interest.

    (n) Attribution of understatement or deficiency resulting from an increase to adjusted gross income.

    (1) In general.

    (2) Examples.

    (o) Abuse by nonrequesting spouse.

    (p) Effective/applicability date.

    § 1.6015-2 Relief from liability applicable to all qualifying joint filers.

    (b) Know or reason to know.

    (c) Inequity.

    (d) Partial relief.

    (1) In general.

    (2) Example.

    (e) Effective/applicability date.

    § 1.6015-3 Allocation of deficiency for individuals who are no longer married, are legally separated, or are not members of the same household.

    (a) Allocation of deficiency.

    (c) * * *

    (2) * * *

    (v) Actual knowledge and community property.

    (vi) Abuse exception.

    (d) * * *

    (2) * * *

    (i) * * *

    (A) In general.

    (B) Calculating separate taxable income and tax due.

    (e) Effective/applicability date.

    § 1.6015-4 Equitable relief.

    (d) Effective/applicability date.

    § 1.6015-5 Time and manner for requesting relief.

    (d) Effective/applicability date.

    § 1.6015-6 Nonrequesting spouse's notice and opportunity to participate in administrative proceedings.

    (d) Effective/applicability date.

    § 1.6015-7 Tax Court review.

    (c) * * *

    (1) Restrictions on collection.

    (i) Restrictions on collection for requests for relief made on or after December 20, 2006.

    (ii) Restrictions on collection for requests for relief made before December 20, 2006.

    (iii) Rules for determining the period of the restrictions on collection.

    (4) * * *

    (iii) Assessment to which the request relates.

    (d) Effective/applicability date.

    § 1.6015-8 Applicable liabilities.

    (d) Effective/applicability date.

    Par. 8. Section 1.6015-1 is amended by: 1. Paragraphs (a)(2), (e), (h)(1), and (h)(5) are revised. 2. The last three sentences of paragraph (h)(4) are removed. 3. Paragraphs (h)(6), (7), and (8) and (k) are added. 4. Paragraph (l) is added and reserved. 5. Paragraphs (m), (n), (o), and (p) are added.

    The revisions and additions read as follows:

    § 1.6015-1 Relief from joint and several liability on a joint return.

    (a) * * *

    (2) A requesting spouse may submit a single request for relief under §§ 1.6015- 2, 1.6015-3, and 1.6015-4. Upon submitting a request for relief, the IRS will consider whether relief is appropriate under §§ 1.6015-2 and 1.6015-3 and, to the extent relief is unavailable under both of those provisions, under § 1.6015-4. Equitable relief under § 1.6015-4 is available only to a requesting spouse who fails to qualify for relief under §§ 1.6015-2 and 1.6015-3.

    (e) Res judicata and collateral estoppel—(1) In general. A requesting spouse is barred from relief from joint and several liability under section 6015 by res judicata for any tax year for which a court of competent jurisdiction has rendered a final decision on the requesting spouse's tax liability if relief under section 6015 was at issue in the prior proceeding, or if the requesting spouse meaningfully participated in that proceeding and could have raised the issue of relief under section 6015.

    (2) Situations in which relief under § 1.6015-3 will not be considered to have been at issue in the prior proceeding. Relief under § 1.6015-3 will not be considered to have been at issue in a prior proceeding if the requesting spouse only raised the issue of relief under section 6015 in general and did not specify under which subsection relief was being requested, and the requesting spouse was not eligible for relief under § 1.6015-3 during the prior proceeding because the requesting spouse was not divorced, widowed, or legally separated, or had been a member of the same household as the nonrequesting spouse during the prior 12 months.

    (3) Meaningful participation. A requesting spouse meaningfully participated in the prior proceeding if the requesting spouse was involved in the proceeding so that the requesting spouse could have raised the issue of relief under section 6015 in that proceeding. Meaningful participation is a facts and circumstances determination. Absent abuse as set forth in paragraph (i) of this section, the following is a nonexclusive list of acts to be considered in making the facts and circumstances determination: Whether the requesting spouse participated in the IRS Appeals process while the prior proceeding was docketed; whether the requesting spouse participated in pretrial meetings; whether the requesting spouse participated in discovery; whether the requesting spouse participated in settlement negotiations; whether the requesting spouse signed court documents, such as a petition, a stipulation of facts, motions, briefs, or any other documents; whether the requesting spouse participated at trial (for example, the requesting spouse was present or testified at the prior proceeding); and whether the requesting spouse was represented by counsel in the prior proceeding. No one act necessarily determines the outcome. The degree of importance of each act varies depending on the requesting spouse's facts and circumstances.

    (i) Notwithstanding the fact that a requesting spouse performed any of the acts listed in paragraph (e)(3) of this section in the prior proceeding, the requesting spouse will not be considered to have meaningfully participated in the prior proceeding if the requesting spouse establishes that the requesting spouse performed the acts because the nonrequesting spouse abused (as described in paragraph (o) of this section) or maintained control over the requesting spouse, and the requesting spouse did not challenge the nonrequesting spouse for fear of the nonrequesting spouse's retaliation.

    (ii) A requesting spouse did not meaningfully participate in a prior proceeding if, due to the effective date of section 6015, relief under section 6015 was not available in that proceeding.

    (iii) In a case petitioned from a statutory notice of deficiency under section 6213, the fact that the requesting spouse did not have the ability to effectively contest the underlying deficiency is irrelevant for purposes of determining whether the requesting spouse meaningfully participated in the court proceeding for purposes of paragraph (e)(1) of this section.

    (4) Examples. The following examples illustrate the rules of this paragraph (e):

    Example 1.

    In a prior court proceeding involving a petition from a notice of deficiency related to a joint income tax return, H and W were still married and filed a timely joint petition to the United States Tax Court. The petition stated that W was entitled to relief under section 6015 without specifying under which subsection she was requesting relief. Before trial, H negotiates with the IRS Chief Counsel attorney and settles the case. W did not meaningfully participate. A stipulated decision was entered that did not mention relief under section 6015. One year later W files a request for relief under section 6015. While W did not meaningfully participate in the prior court proceeding, because relief under section 6015 was at issue in that case, res judicata applies except with respect to relief under § 1.6015-3. Because W did not specify that she was requesting relief under § 1.6015-3, and W was not eligible to request relief under that section because she was still married to the nonrequesting spouse throughout the court proceeding, relief under § 1.6015-3 is not considered to have been at issue in that case. Thus, W is not barred by res judicata from raising relief under § 1.6015-3 in a later case. However, any later claim from W requesting relief under § 1.6015-2 or § 1.6015-4 would be barred by res judicata.

    Example 2.

    Same facts as in Example 1 of this paragraph (e)(4) except that H and W are divorced at the time the petition was filed. Because W was eligible to request relief under § 1.6015-3 as she was divorced from H, relief under § 1.6015-3 is considered to be at issue in the prior court proceeding and W is barred by res judicata from raising relief under § 1.6015-3 in a later case. Thus, any later claim from W requesting relief under any subsection of section 6015 would be barred by res judicata.

    Example 3.

    The IRS issued a notice of deficiency to H and W determining a deficiency on H and W's joint income tax return based on H's Schedule C business. H and W timely filed a petition in the United States Tax Court. W signed the petition and numerous other documents, participated in discussions regarding the case with the IRS Chief Counsel attorney, and ultimately agreed to a settlement of the case. W could have raised any issue, but W did not have any access to H's records regarding his Schedule C business, over which H maintained exclusive control. Relief under section 6015 was never raised in the court proceeding. If W were to later file a request for relief under section 6015, W's claim would be barred by res judicata. Considering these facts and circumstances, W meaningfully participated in the prior court proceeding regarding the deficiency. The fact that W could not have effectively contested the underlying deficiency because she had no access to H's Schedule C records is not relevant to the determination of whether W meaningfully participated. Instead the meaningful participation exception looks to W's involvement in the prior court proceeding and her ability to raise relief under section 6015 as a defense.

    Example 4.

    Same facts as Example 3 of this paragraph (e)(4), except that W's participation in discussions with the IRS Chief Counsel attorney were clearly controlled by H, and W was fearful of H when she agreed to settle the case. In this situation, her involvement in the prior proceeding would not be considered meaningful participation because W was able to establish that H maintained control over her and that she did not challenge H for fear of the H's retaliation. If W were to later file a request for relief under section 6015, her claim would not be barred by res judicata.

    Example 5.

    In March 2014, the IRS issued a notice of deficiency to H and W determining a deficiency on H and W's joint income tax return for tax year 2011. H and W timely filed a pro se petition in the United States Tax Court for redetermination of the deficiency. W signed the petition, but otherwise, H handled the entire litigation, from discussing the case with the IRS Chief Counsel attorney to agreeing to a settlement of the case. Relief under section 6015 was never raised. W signed the decision document that H had agreed to with the IRS Chief Counsel attorney. If W were to later file a claim requesting relief under section 6015, W's claim would not be barred by res judicata. Considering these facts and circumstances, W's involvement in the prior court proceeding regarding the deficiency did not rise to the level of meaningful participation.

    Example 6.

    Same facts as in Example 5 of this paragraph (e)(4) except that W also participated in settlement negotiations with the IRS Chief Counsel attorney that resulted in the decision document entered in the case. Considering these facts and circumstances—signing the petition and the decision document, along with participating in the negotiations that led to the settlement reflected in the decision document—W meaningfully participated in the prior court proceeding regarding the deficiency because W could have raised relief under section 6015. Any later claim from W requesting relief under section 6015 would be barred by res judicata.

    Example 7.

    In a prior court proceeding involving a petition from a notice of deficiency, H and W hired counsel, C, to represent them in the United States Tax Court. W agreed to C's representation, but otherwise, only H met and communicated with C about the case. C signed and filed the petition, discussed the case with the IRS Chief Counsel attorney, and agreed to a settlement of the case after discussing it with H. Relief under section 6015 was never raised. C signed the decision document on behalf of H and W. If W were to later file a claim requesting relief under section 6015, W's claim would not be barred by res judicata. Even though W was represented by counsel in the prior court proceeding regarding the deficiency, considering all the facts and circumstances, W's involvement in the prior court proceeding did not rise to the level of meaningful participation.

    Example 8.

    In a prior court proceeding involving a petition from a notice of deficiency, H did not sign the petition or other court documents, participate in the Appeals or Counsel settlement negotiations, attend pretrial meetings, or hire separate counsel. H did, however, attend the trial and testify. Considering these facts and circumstances, H's participation in the trial is sufficient to establish that H meaningfully participated in the prior court proceeding regarding the deficiency because H's participation provided H with a definite opportunity to raise relief under section 6015 in that proceeding. Any later claim from H requesting relief under section 6015 would be barred by res judicata.

    Example 9.

    The IRS issued a joint notice of deficiency to H and W determining a deficiency on H and W's joint income tax return based on H's Schedule C business. Only W timely filed a petition in the United States Tax Court. W conceded the deficiency shortly before trial and signed a decision document. W did not raise relief under section 6015. If W were to later file a claim requesting relief under section 6015, W's claim would be barred by res judicata. Because W was the only petitioner in the prior court proceeding, W's participation in that proceeding was meaningful participation.

    (5) Collateral estoppel. Any final decisions rendered by a court of competent jurisdiction regarding issues relevant to section 6015 are conclusive, and the requesting spouse may be collaterally estopped from relitigating those issues.

    (h) Definitions—(1) Requesting spouse. A requesting spouse is an individual who filed a joint income tax return and requests relief from Federal income tax liability arising from that return under § 1.6015-2, § 1.6015-3, or § 1.6015-4.

    (5) Request for relief. A qualifying request under § 1.6015-2, § 1.6015-3, or § 1.6015-4 is the first timely request for relief from joint and several liability for the tax year for which relief is sought. A qualifying request also includes a requesting spouse's second request for relief from joint and several liability for the same tax year under § 1.6015-3 when the additional qualifications of paragraphs (h)(5)(i) and (ii) of this section are met—

    (i) The requesting spouse did not qualify for relief under § 1.6015-3 at the time of the first request solely because the qualifications of § 1.6015-3(a) were not satisfied; and

    (ii) At the time of the second request, the qualifications for relief under § 1.6015-3(a) were satisfied.

    (6) Unpaid tax and underpayment. Unpaid tax and underpayment for purposes of § 1.6015-4 means the balance due shown on the joint return, reduced by the tax paid with the joint return. The balance due shown on the joint return is determined after application of the credits for tax withheld under section 31, any amounts paid as estimated income tax, any amounts paid with an extension of time to file, or any other credits applied against the total tax reported on the return. Tax paid with the joint return includes a check or money order remitted with the return or Form 1040-V, “Payment Voucher,” or payment by direct debit, credit card, or other commercially acceptable means under section 6311. If the joint return is filed on or before the last day prescribed for filing under section 6072 (determined without regard to any extension of time to file under section 6081), the tax paid with the joint return includes any tax paid on or before the last day prescribed for payment under section 6151. If the joint return is filed after the last day prescribed for filing, the tax paid with the joint return includes any tax paid on or before the date the joint return is filed. A requesting spouse is not entitled to be considered for relief under § 1.6015-4 for any tax paid with the joint return. If the tax paid with the joint return completely satisfies the balance due shown on the return, then there is no unpaid tax for purposes of § 1.6015-4.

    (7) Understatement. The term understatement means the excess of the amount of tax required to be shown on the return for the taxable year over the amount of the tax imposed which is shown on the return, reduced by any rebate (within the meaning of section 6211(b)(2)).

    (8) Deficiency. The term deficiency has the same meaning given to that term in section 6211 and § 301.6211-1 of this chapter.

    (k) Credit or refund—(1) In general. Except as provided in paragraphs (k)(2) through (5) of this section, a requesting spouse who is eligible for relief can receive a credit or refund of payments made to satisfy the joint income tax liability, whether the liability resulted from an understatement or an underpayment.

    (2) No credit or refund allowed under § 1.6015-3. A requesting spouse is not entitled to a credit or refund of any payments made on the joint income tax liability as a result of allocating the deficiency under § 1.6015-3. See section 6015(g)(3) and § 1.6015-3(c)(1).

    (3) No circumvention of §§ 1.6015-1(k)(2) and 1.6015-3(c)(1). Section 1.6015-4 may not be used to circumvent the limitation of § 1.6015-3(c)(1) (such as, no refunds under § 1.6015-3). Therefore, relief is not available under this section to obtain a credit or refund of liabilities already paid, for which the requesting spouse would otherwise qualify for relief under § 1.6015-3. For purposes of determining whether the requesting spouse qualifies for relief under § 1.6015-3, the fact that a refund was barred by section 6015(g)(2) and paragraph (k)(2) of this section does not mean that the requesting spouse did not receive full relief. A requesting spouse is entitled to full relief under § 1.6015-3 if the requesting spouse was eligible to allocate the deficiency in full to the nonrequesting spouse.

    (4) Limitations on credit or refund. The availability of credit or refund is subject to the limitations provided by sections 6511 and 6512(b). Generally the filing of Form 8857, “Request for Innocent Spouse Relief,” will be treated as the filing of a claim for credit or refund even if the requesting spouse does not specifically request a credit or refund. The amount allowable as a credit or refund, assuming the requesting spouse is eligible for relief, includes payments made after the filing of the Form 8857, as well as payments made within the applicable look-back period provided by section 6511(b).

    (5) Requesting spouse limited to credit or refund of payments made by the requesting spouse. A requesting spouse is only eligible for a credit or refund of payments to the extent the requesting spouse establishes that he or she provided the funds used to make the payment for which he or she seeks a credit or refund. Thus, a requesting spouse is not eligible for a credit or refund of payments made by the nonrequesting spouse. A requesting spouse is also generally not eligible for a credit or refund of joint payments made with the nonrequesting spouse. A requesting spouse, however, may be eligible for a credit or refund of the requesting spouse's portion of an overpayment from a joint return filed with the nonrequesting spouse that was offset under section 6402 to the spouses' joint income tax liability, to the extent that the requesting spouse can establish his or her contribution to the overpayment.

    (l) [Reserved]

    (m) Penalties and interest. Generally, a spouse who is entitled to relief under § 1.6015-2, § 1.6015-3, or § 1.6015-4 is also entitled to relief from related penalties, additions to tax, additional amounts, and interest (collectively, penalties and interest). Penalties and interest, however, are not separate erroneous items (as defined in paragraph (h)(4) of this section) from which a requesting spouse can be relieved separate from the tax. Rather relief from penalties and interest related to an understatement or deficiency will generally be determined based on the proportion of the total erroneous items from which the requesting spouse is relieved. For penalties that relate to a particular erroneous item, see § 1.6015-3(d)(4)(iv)(B). Penalties and interest on an underpayment are also not separate items from which a requesting spouse may obtain relief under § 1.6015-4. Relief from penalties and interest on the underpayment will be determined based on the amount of relief from the underpayment to which the requesting spouse is entitled. If the underlying tax liability (whether an assessed deficiency or an underpayment) was paid in full after the joint return was filed but penalties and interest remain unpaid, the requesting spouse may be relieved from the penalties and interest if the requesting spouse is entitled to relief from the underlying tax. The fact that the requesting spouse is entitled to relief from the underlying tax but is not entitled to a refund because of § 1.6015-1(k) does not prevent the requesting spouse from being relieved from liability for the penalties and interest.

    (n) Attribution of understatement or deficiency resulting from an increase to adjusted gross income—(1) In general. Any portion of an understatement or deficiency relating to the disallowance of an item (or increase to an amount of tax) separately listed on an individual income tax return solely due to the increase of adjusted gross income (or modified adjusted gross income or other similar phase-out thresholds) as a result of an erroneous item solely attributable to the nonrequesting spouse will also be attributable to the nonrequesting spouse unless the evidence shows that a different result is appropriate. If the increase to adjusted gross income is the result of an erroneous item(s) of both the requesting and nonrequesting spouses, the item disallowed (or increased tax) due to the increase to adjusted gross income will be attributable to the requesting spouse in the same ratio as the amount of the item or items attributable to the requesting spouse over the total amount of the items that resulted in the increase to adjusted gross income.

    (2) Examples. The following examples illustrate the rules of this paragraph (n):

    Example 1.

    H and W file a joint Federal income tax return. After applying withholding credits there is a tax liability of $500. Based on the earned income reported on the return and the number of qualifying children, H and W are entitled to an Earned Income Tax Credit (EITC) in the amount of $1,500. The EITC satisfies the $500 in tax due and H and W receive a refund in the amount of $1,000. Later the IRS concludes that H had additional unreported income, which increased the tax liability on the return to $1,000 and resulted in H and W's EITC being reduced to zero due to their adjusted gross income exceeding the maximum amount. The IRS determines a deficiency in the amount of $2,000—$1,500 of which relates to the EITC and $500 of which relates to H's erroneous item—the omitted income. If W requests relief under section 6015, the entire $2,000 deficiency is attributable to H because the EITC was disallowed solely due to the increase of adjusted gross income as a result of H's omitted income. W satisfies the attribution factor of § 1.6015-2(a)(2) and the threshold condition in section 4.01(7) of Rev. Proc. 2013-34 with respect to the entire deficiency. Under § 1.6015-3(d)(4)(ii), the portion of the deficiency related to the disallowance of the EITC is initially allocated to H.

    Example 2.

    H and W file a joint Federal income tax return reporting a total tax liability of $22,000. Later the IRS concludes that H had additional unreported income in the amount of $20,000, which increased H and W's adjusted gross income and their alternative minimum taxable income. As a result, H and W now owe the Alternative Minimum Tax (AMT). The IRS determines a deficiency in the amount of $5,250—$250 of which relates to H and W's AMT liability as determined under section 55 and $5,000 of which relates to the increase in H and W's section 1 income tax liability. If W requests relief under section 6015, the entire $5,250 deficiency is attributable to H because H and W owe the AMT solely due to H's erroneous item—the omitted income. W satisfies the attribution factor of § 1.6015-2(a)(2) and the threshold condition in section 4.01(7) of Rev. Proc. 2013-34 with respect to the entire deficiency. Under § 1.6015-3(d)(4)(ii), the portion of the deficiency related to the AMT is initially allocated to H.

    Example 3.

    H and W file a joint Federal income tax return reporting itemized deductions on Schedule A, “Itemized Deductions,” in the amount of $50,000. Later the IRS concludes that $10,000 of W's expenses reported on her Schedule C, “Profit or Loss From Business,” were not allowable, which increased H and W's adjusted gross income. As a result, H and W's itemized expenses are reduced to $45,000 as their adjusted gross income exceeded the phase-out amount. The IRS determines a deficiency in the amount of $5,000. If H requests relief under section 6015, the entire $5,000 deficiency is attributable to W because the itemized deductions were reduced solely due to the increase of adjusted gross income as a result of W's erroneous item—the Schedule C expenses. H satisfies the attribution factor of § 1.6015-2(a)(2) and the threshold condition in section 4.01(7) of Rev. Proc. 2013-34 with respect to the entire deficiency. Under § 1.6015-3(d)(2)(iv), the portion of the deficiency related to the disallowance of the Schedule A deductions is initially allocated to W.

    Example 4.

    H and W file a joint Federal income tax return reporting itemized deductions on Schedule A in the amount of $50,000. Later the IRS concludes that H had additional unreported income in the amount of $4,000 and W had additional unreported income in the amount of $6,000, which increased H and W's adjusted gross income. As a result, H and W's itemized expenses are reduced to $45,000 as their adjusted gross income exceeded the phase-out amount. The IRS determines a deficiency in the amount of $6,000—$1,500 of which relates to H's erroneous item, $2,500 of which relates to W's erroneous item, and $2,000 of which relates to the reduced itemized deductions. Assuming the conditions for relief under section 6015 are otherwise satisfied, the $2,500 deficiency from W's omitted income is attributable to W and the $1,500 deficiency from H's omitted income is attributable to H. Because the increase to adjusted gross income as a result of both H and W's erroneous items reduced the itemized deductions, the portion of the deficiency related to the disallowed itemized deductions is partially attributable to both H and W. Of the $2,000 deficiency from the disallowed itemized deductions, $800 is attributable to H because 40 percent ($4,000/$10,000) of the items that resulted in the increase to adjusted gross income are attributable to H, and $1,200 is attributable to W because 60 percent ($6,000/$10,000) of the items that resulted in the increase to adjusted gross income are attributable to W. If both H and W requested relief the most H could be relieved from is $3700, the amount attributable to W ($2500 + $1200), and the most W could be relieved from is $2300, the amount attributable to H ($1500 + $800).

    (o) Abuse by the nonrequesting spouse. Abuse comes in many forms and can include physical, psychological, sexual, or emotional abuse, including efforts to control, isolate, humiliate, and intimidate the requesting spouse, or to undermine the requesting spouse's ability to reason independently and be able to do what is required under the tax laws. All the facts and circumstances are considered in determining whether a requesting spouse was abused. The impact of a nonrequesting spouse's alcohol or drug abuse is also considered in determining whether a requesting spouse was abused. Depending on the facts and circumstances, abuse of the requesting spouse's child or other family member living in the household may constitute abuse of the requesting spouse.

    (p) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 9. Section 1.6015-2 is amended by: 1. Paragraph (a) introductory text is revised. 2. Paragraph (b) is removed. 3. Paragraphs (c), (d), and (e) are redesignated as paragraphs (b), (c), and (d). 4. Newly designated paragraph (b) is revised. 5. The last sentence of newly designated paragraph (c) is revised. 6. Newly designated paragraph (d) is revised. 7. Paragraph (e) is added.

    The revisions and addition read as follows:

    § 1.6015-2 Relief from liability applicable to all qualifying joint filers.

    (a) In general. A requesting spouse may be relieved from joint and several liability for tax (including related additions to tax, additional amounts, penalties, and interest) from an understatement for a taxable year under this section if the requesting spouse requests relief in accordance with §§ 1.6015-1(h)(5) and 1.6015-5, and—

    (b) Knowledge or reason to know. A requesting spouse has knowledge or reason to know of an understatement if he or she actually knew of the understatement, or if a reasonable person in similar circumstances would have known of the understatement. For rules relating to a requesting spouse's actual knowledge, see § 1.6015-3(c)(2). All of the facts and circumstances are considered in determining whether a requesting spouse had reason to know of an understatement. The facts and circumstances that are considered include, but are not limited to, the nature of the erroneous item and the amount of the erroneous item relative to other items; any deceit or evasiveness of the nonrequesting spouse; the couple's financial situation; the requesting spouse's educational background and business experience; the extent of the requesting spouse's participation in the activity that resulted in the erroneous item; the requesting spouse's involvement in business or household financial matters; whether the requesting spouse failed to inquire, at or before the time the return was signed, about items on the return or omitted from the return that a reasonable person would question; any lavish or unusual expenditures compared with past spending levels; and whether the erroneous item represented a departure from a recurring pattern reflected in prior years' returns (for example, omitted income from an investment regularly reported on prior years' returns). A requesting spouse has knowledge or reason to know of the portion of an understatement related to an item attributable to the nonrequesting spouse under § 1.6015-1(n) if the requesting spouse knows or has reason to know of the nonrequesting spouse's erroneous item or items that resulted in the increase to adjusted gross income. Depending on the facts and circumstances, if the requesting spouse was abused by the nonrequesting spouse (as described in § 1.6015-1(o)), or the nonrequesting spouse maintained control of the household finances by restricting the requesting spouse's access to financial information, and because of the abuse or financial control, the requesting spouse was not able to challenge the treatment of any items on the joint return for fear of the nonrequesting spouse's retaliation, the requesting spouse will be treated as not having knowledge or reason to know of the items giving rise to the understatement. If, however, the requesting spouse involuntarily executed the return, the requesting spouse may choose to establish that the return was signed under duress. In such a case, § 1.6013-4(d) applies.

    (c) * * * For guidance concerning the criteria to be used in determining whether it is inequitable to hold a requesting spouse jointly and severally liable under this section, see Rev. Proc. 2013-34 (2013-2 CB 397), or other guidance published by the Treasury and IRS (see § 601.601(d)(2) of this chapter).

    (d) Partial relief—(1) In general. If a requesting spouse had no knowledge or reason to know of a portion of an erroneous item, the requesting spouse may be relieved of the liability attributable to that portion of that item, if all other requirements are met with respect to that portion.

    (2) Example. The following example illustrates the rules of this paragraph (d):

    Example.

    H and W are married and file their 2014 joint income tax return in March 2015. In April 2016, H is convicted of embezzling $2 million from his employer during 2014. H kept all of his embezzlement income in an individual bank account, and he used most of the funds to support his gambling habit. H and W had a joint bank account into which H and W deposited all of their reported income. Each month during 2014, H transferred an additional $10,000 from the individual account to H and W's joint bank account. Although H paid the household expenses using this joint account, W regularly received the bank statements relating to the account. W did not know or have reason to know of H's embezzling activities. W did, however, know or have reason to know of $120,000 of the $2 million of H's embezzlement income at the time she signed the joint return because that amount passed through the couple's joint bank account and she regularly received bank statements showing the monthly deposits from H's individual account. Therefore, W may be relieved of the liability arising from $1,880,000 of the unreported embezzlement income, but she may not be relieved of the liability for the deficiency arising from $120,000 of the unreported embezzlement income of which she knew and had reason to know.

    (e) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 10. Section 1.6015-3 is amended by: 1. The paragraph heading and first sentence of paragraph (a) are revised. 2. Paragraphs (c)(1) and (c)(2)(iv) are revised. 3. A sentence is added at the end of paragraph (c)(2)(i). 4. Paragraph (c)(2)(v) is redesignated as paragraph (c)(2)(vi) and paragraph (c)(2)(v) is added. 5. Newly redesignated paragraph (c)(2)(vi) is revised. 6. Paragraphs (d)(2)(i) and (d)(5) introductory text are revised. 7. In paragraph (d)(5), Examples 7, 8, 9, 10, and 11 are added. 8. Paragraph (e) is added.

    The revisions and additions read as follows:

    § 1.6015-3 Allocation of deficiency for individuals who are no longer married, are legally separated, or are not members of the same household.

    (a) Allocation of deficiency. A requesting spouse may allocate a deficiency (as defined in § 1.6015-1(h)(8)) if, as defined in paragraph (b) of this section, the requesting spouse is divorced, widowed, or legally separated, or has not been a member of the same household as the nonrequesting spouse at any time during the 12-month period ending on the date the request for relief is filed. * * *

    (c) * * * (1) No refunds. Although a requesting spouse may be eligible to allocate the deficiency to the nonrequesting spouse, refunds are not authorized under this section. Refunds of paid liabilities for which a requesting spouse was entitled to allocate the deficiency under this section may be considered under § 1.6015-2 but not under § 1.6015-4. See § 1.6015-1(k)(3).

    (2) * * * (i) * * * A requesting spouse has actual knowledge of the portion of an understatement related to an item attributable to the nonrequesting spouse under § 1.6015-1(n) and allocable to the nonrequesting spouse under paragraph (d) of this section if the requesting spouse has actual knowledge of the nonrequesting spouse's erroneous item or items that resulted in the increase to adjusted gross income.

    (iv) Factors supporting actual knowledge. To demonstrate that a requesting spouse had actual knowledge of an erroneous item at the time the return was signed, the Internal Revenue Service (IRS) will consider all the facts and circumstances, including but not limited to, whether the requesting spouse made a deliberate effort to avoid learning about the item to be shielded from liability; whether the erroneous item would have been allocable to the requesting spouse but for the tax benefit rule in paragraph (d)(2)(i) of this section; and whether the requesting spouse and the nonrequesting spouse jointly owned the property that resulted in the erroneous item. These factors, together with all other facts and circumstances, may demonstrate that the requesting spouse had actual knowledge of the item. If the requesting spouse had actual knowledge of an erroneous item, the portion of the deficiency with respect to that item will not be allocated to the nonrequesting spouse.

    (v) Actual knowledge and community property. A requesting spouse will not be considered to have had an ownership interest in an item based solely on the operation of community property law. Rather, a requesting spouse who resided in a community property state at the time the return was signed will be considered to have had an ownership interest in an item only if the requesting spouse's name appeared on the ownership documents, or there otherwise is an indication that the requesting spouse asserted dominion and control over the item. For example, assume H and W live in State A, a community property state. After their marriage, H opens a bank account in his name. Under the operation of the community property laws of State A, W owns one-half of the bank account. Assuming there is no other indication that she asserted dominion and control over the item, W does not have an ownership interest in the account for purposes of this paragraph (c)(2)(v) because she does not hold the account in her name.

    (vi) Abuse exception. Depending on the facts and circumstances, if the requesting spouse was abused by the nonrequesting spouse (as described in § 1.6015-1(o)), or the nonrequesting spouse maintained control of the household finances by restricting the requesting spouse's access to financial information, and because of the abuse or financial control, the requesting spouse was not able to challenge the treatment of any items on the joint return for fear of the nonrequesting spouse's retaliation, the limitation on the requesting spouse's ability to allocate the deficiency because of actual knowledge will not apply. The requesting spouse will be treated as not having knowledge of the items giving rise to the deficiency. If, however, the requesting spouse involuntarily executed the return, the requesting spouse may choose to establish that the return was signed under duress. In such a case, § 1.6013-4(d) applies.

    (d) * * *

    (2) * * *

    (i) Benefit on the return—(A) In general. An erroneous item that would otherwise be allocated to one spouse is allocated to the second spouse to the extent that the second spouse received a tax benefit on the joint return and the first spouse did not receive a tax benefit. An erroneous item under this paragraph can be allocated to a requesting spouse or a nonrequesting spouse, but only a spouse who requests relief under this section may allocate the deficiency. A spouse who does not request relief under section 6015 remains fully liable for the deficiency. An allocation from a requesting spouse to a nonrequesting spouse reduces the amount for which a requesting spouse remains liable while an allocation from a nonrequesting spouse to a requesting spouse increases the amount for which a requesting spouse remains liable.

    (B) Calculating separate taxable income and tax due. Under section 6015(d)(3)(A), the items giving rise to the deficiency must be allocated to each spouse in the same manner as the items would have been allocated if the spouses had filed separate returns. In determining whether a spouse received a tax benefit from the item, it may be necessary to calculate each spouse's hypothetical separate return taxable income, determined without regard to the erroneous items, and taking into consideration adjusted gross income, allowable deductions and losses, and allowable credits against tax.

    (5) Examples. The following examples illustrate the rules of this paragraph (d). In each example, assume that the requesting spouse or spouses qualify to allocate the deficiency, that a request under section 6015 was timely made, and that the deficiency remains unpaid. In addition, unless otherwise stated, assume that neither spouse actually knew of the erroneous items allocable to the other spouse. The examples are as follows:

    Example 7.

    Calculation of tax benefit based on taxable income. (i) On their joint Federal income tax return for tax year 2009, H reports $60,000 of wage income; W reports $25,000 of wage income; and H and W report joint interest income of $2,000 and joint ordinary income from investments in the amount of $6,000. In addition, H and W properly deduct $30,000 for their two personal exemptions and itemized deductions, and W erroneously reports a loss from her separate investment in a partnership in the amount of $20,000. On May 3, 2012, a $5,000 deficiency is assessed with respect to their 2009 joint return. W dies in November 2012. H requests innocent spouse relief. The deficiency on the joint return results from a disallowance of all of W's $20,000 loss (which is initially allocable to W).

    (ii) After taking all sources of income and all allowable deductions into consideration, H's separate taxable income is $49,000 and W's separate taxable income is $14,000, calculated as follows:

    H W Wages $60,000 $25,000 Interest Income 1,000 1,000 Investment Income 3,000 3,000 Adj. Gross Income 64,000 29,000 Exemptions and Deductions (15,000) (15,000) Taxable Income 49,000 14,000 W's Disallowed Loss (20,000) Tax Benefit Not Used by W (6,000) Tax Benefit to W (14,000) Tax Benefit to H (6,000)

    (iii) As W only used $14,000 of her $20,000 loss from her separate investment in a partnership to offset her separate taxable income, H benefited from the other $6,000 of the disallowed loss used to offset his separate taxable income. Therefore, $14,000 of the disallowed $20,000 loss is allocable to W (7/10) and $6,000 of the disallowed loss is allocable to H (3/10). H's liability is limited to $1,500 (3/10 of the $5,000 deficiency).

    Example 8.

    Nonrequesting spouse receives a benefit on the joint return from the requesting spouse's erroneous item. (i) On their joint Federal income tax return for tax year 2008, W reports $40,000 of wage income and H reports $12,000 of wage income. In addition, H and W properly deduct $20,000 for their two personal exemptions and itemized deductions, H erroneously deducts a casualty loss in the amount of $5,000 related to a loss on his separately held property, and W erroneously takes a loss in the amount of $7,000 from an investment in a tax shelter. H and W legally separate in 2010, and on October 21, 2011, a $2,400 deficiency is assessed with respect to their 2008 joint return. H requests innocent spouse relief. The deficiency on the joint return results from a disallowance of all of H's $5,000 loss and all of W's $7,000 loss (which is allocable to W and for which H did not have actual knowledge).

    (ii) The $5,000 casualty loss is initially allocated to H. As H's separate taxable income is only $2,000 ($12,000 wage income less $10,000—50 percent of the exemptions and itemized deductions), H only used $2,000 of his $5,000 casualty loss to offset his separate taxable income, and W benefited from the other $3,000 of the disallowed loss, which offset a portion of her separate taxable income. Therefore, $3,000 of the disallowed loss is allocable to W even though the loss is H's item, and $2,000 of the loss is allocable to H. The $7,000 tax shelter loss is also allocable to W as H did not have knowledge of the facts that made the tax shelter item unallowable as a loss. H's allocation percentage is 1/6 ($2,000/$12,000) and H's liability is limited to $400 (1/6 of $2,400 deficiency). The IRS may collect up to $400 from H and up to $2,400 from W (although the total amount collected may not exceed $2,400).

    (iii) If the IRS could establish that H had knowledge of the facts that made the deduction for his casualty loss unallowable, the entire $5,000 casualty loss would be allocable to H. H's allocation percentage would be 5/12 ($5,000/$12,000) and H's liability would be limited to $1,000 (5/12 of $2,400 deficiency).

    (iv) If W also requested innocent spouse relief (and H did not have knowledge of the facts that made his loss unallowable), there would be no remaining joint and several liability, and the IRS would be permitted to collect $400 from H (1/6 ($2,000/$12,000) of the $2,400 deficiency) and $2,000 (5/6 ($10,000/$12,000) of $2,400 deficiency) from W. If the IRS could establish that W had knowledge of the facts that made the deduction for the casualty loss unallowable, W would then be liable for the entire $2,400 deficiency, while H would remain liable for up to $400.

    Example 9.

    Allocation of liability based on joint erroneous loss item. (i) On their joint Federal income tax return for tax year 2009, H reports $100,000 of wage income and W reports $50,000 of wage income. In addition, H and W properly deduct $40,000 for their two personal exemptions and itemized deductions, and erroneously report a loss in the amount of $50,000 from a jointly-held investment in a tax shelter. H and W divorce in 2011, and on August 14, 2012, a $12,000 deficiency is assessed with respect to their 2009 joint return. W requests innocent spouse relief. The deficiency on the joint return results from a disallowance of all of the $50,000 loss.

    (ii) Under paragraph (d)(2)(iv) of this section, in the absence of clear and convincing evidence supporting a different allocation, an erroneous deduction item related to a jointly-owned investment is generally allocated 50 percent to each spouse. Thus, $25,000 of the loss is allocated to each spouse. In determining the effect, if any, of the tax benefit rule of § 1.6015-1(d)(2)(i), H's separate taxable income is $80,000: $100,000 wage income minus $20,000, or 50 percent of the exemptions and itemized deductions; and W's separate taxable income is $30,000: $50,000 minus $20,000. As both H's and W's separate taxable income exceeds their allocated share of the disallowed loss, no additional amount is allocated between the spouses. W's allocation percentage is 1/2 ($25,000/$50,000) and W's liability is limited to $6,000 (1/2 of $12,000 deficiency). The IRS may collect up to $6,000 from W and up to $12,000 from H (although the total amount collected may not exceed $12,000).

    (iii) If the IRS could establish that W had knowledge of the facts that made the loss unallowable, both H and W would then remain jointly and severally liable for the $12,000 deficiency.

    Example 10.

    Calculation of tax benefit based on joint erroneous item. Assume the same facts as in Example 9 of this paragraph (d)(5), except that W's wage income is only $40,000. W's separate taxable income would then be only $20,000 ($40,000 wage income minus $20,000—50 percent of the exemptions and itemized deductions). W would only be able to use $20,000 of the $25,000 loss from the tax shelter to offset her separate taxable income. Accordingly, H benefited from the other $5,000 of the disallowed loss, which was used to offset a portion of his separate taxable income. Therefore, $20,000 of the disallowed loss is allocable to W, and $30,000 is allocable to H: $25,000 (H's 50 percent of the disallowed loss) plus $5,000 (the portion of W's 50 percent that is allocable to H because H received a tax benefit). W's allocation percentage is 2/5 ($20,000/$50,000) and W's liability is limited to $4,800 (2/5 of $12,000 deficiency). The IRS may collect up to $4,800 from W and up to $12,000 from H (although the total amount collected may not exceed $12,000).

    Example 11.

    Allocation of erroneous item based on fraud of the nonrequesting spouse. During 2009, W fraudulently accesses H's brokerage account to sell stock that H had separately received from an inheritance. W deposits the funds from the sale in a separate bank account to which H did not have access. H and W file a joint Federal income tax return for tax year 2009. The return did not include the income from the sale of the stock. H and W divorce in November 2010. The divorce decree states that W committed forgery and defrauded H with respect to his brokerage account. The IRS commences an audit in March 2011 and determines a deficiency based on the omission of the income from the sale of the stock. H requests innocent spouse relief. Under paragraph (d)(2)(iii) of this section, items of investment income are generally allocated to the spouse who owned the investment, which in this case would be H. Under paragraph (d)(2)(ii) of this section, however, the IRS may allocate any item between the spouses if the IRS determines that the allocation is appropriate due to fraud by one or both spouses. The IRS determines that W committed fraud with respect to H and as a result it is appropriate to allocate the deficiency to W under paragraph (d)(2)(ii).

    (e) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 11. Section 1.6015-4 is revised to read as follows:
    § 1.6015-4 Equitable relief.

    (a) A requesting spouse who files a joint return for which an understatement or deficiency (as defined by § 1.6015-1(h)(7) and (8)) was determined or for which there was unpaid tax (as defined by § 1.6015-1(h)(6)), and who does not qualify for full relief under § 1.6015-2 or § 1.6015-3, may be entitled to equitable relief under this section. The Internal Revenue Service (IRS) has the discretion to grant equitable relief from joint and several liability to a requesting spouse when, considering all of the facts and circumstances, it would be inequitable to hold the requesting spouse jointly and severally liable.

    (b) This section may not be used to circumvent the limitation of § 1.6015-3(c)(1). Therefore, relief is not available under this section to obtain a refund of liabilities already paid, for which the requesting spouse would otherwise qualify for relief under § 1.6015-3. See § 1.6015-1(k)(3). If the requesting spouse is only eligible for partial relief under § 1.6015-3 (i.e., some portion of the deficiency is allocable to the requesting spouse), then the requesting spouse may be considered for relief under this section with respect to the portion of the deficiency for which the requesting spouse was not entitled to relief.

    (c) For guidance concerning the criteria to be used in determining whether it is inequitable to hold a requesting spouse jointly and severally liable under this section, see Rev. Proc. 2013-34 (2013-1 IRB 397), or other guidance published by the Treasury and IRS (see § 601.601(d)(2) of this chapter).

    (d) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 12. Section 1.6015-5 is amended by adding paragraph (d) to read as follows:
    § 1.6015-5. Time and manner for requesting relief.

    (d) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 13. Section 1.6015-6 is amended by revising the first sentence of paragraph (a)(1), adding a sentence at the end of paragraph (a)(2), and adding paragraph (d) to read as follows:
    § 1.6015-6 Nonrequesting spouse's notice and opportunity to participate in administrative proceedings.

    (a) * * * (1) When the Internal Revenue Service (IRS) receives a request for relief under § 1.6015-2, § 1.6015-3, or § 1.6015-4, the IRS must send a notice to the nonrequesting spouse's last known address that informs the nonrequesting spouse of the requesting spouse's request for relief. * * *

    (2) * * * For guidance concerning the nonrequesting spouse's right to appeal the preliminary determination to IRS Appeals, see Rev. Proc. 2003-19 (2003-1 CB 371), or other guidance published by the Treasury Department and the IRS (see § 601.601(d)(2) of this chapter).

    (d) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 14. In § 1.6015-7, paragraphs (b), (c)(1), (c)(3), and (c)(4)(iii) are revised and paragraph (d) is added to read as follows:
    § 1.6015-7 Tax Court review.

    (b) Time period for petitioning the Tax Court. Pursuant to section 6015(e), the requesting spouse may petition the Tax Court to review the denial of relief under § 1.6015-1 within 90 days after the date the Internal Revenue Service's (IRS) final determination is mailed by certified or registered mail (the 90-day period). If the IRS does not mail the requesting spouse a final determination letter within 6 months of the date the requesting spouse files a request for relief under section 6015, the requesting spouse may petition the Tax Court to review the request at any time after the expiration of the 6-month period and before the expiration of the 90-day period. The Tax Court also may review a request for relief if the Tax Court has jurisdiction under another section of the Internal Revenue Code, such as section 6213(a) or section 6330(d). This paragraph (b) applies to liabilities arising on or after December 20, 2006, or arising prior to December 20, 2006, and remaining unpaid as of that date. For liabilities arising prior to December 20, 2006, which were fully paid prior to that date, the requesting spouse may petition the Tax Court to review the denial of relief as discussed above, but only with respect to denials of relief involving understatements under § 1.6015-2, § 1.6015-3, or § 1.6015-4.

    (c) Restrictions on collection and suspension of the running of the period of limitations—(1) Restrictions on collection—(i) Restrictions on collection for requests for relief made on or after December 20, 2006. Unless the IRS determines that collection will be jeopardized by delay, no levy or proceeding in court shall be made, begun, or prosecuted against a spouse requesting relief under § 1.6015-2, § 1.6015-3, or § 1.6015-4 (except for certain requests for relief made solely under § 1.6015-4) for the collection of any assessment to which the request relates until the expiration of the 90-day period described in paragraph (b) of this section, or, if a petition is filed with the Tax Court, until the decision of the Tax Court becomes final under section 7481. For requests for relief made solely under § 1.6015-4, the restrictions on collection only apply if the liability arose on or after December 20, 2006, or arose prior to December 20, 2006, and remained unpaid as of that date. The restrictions on collection begin on the date the request is filed.

    (ii) Restriction on collection for requests for relief made before December 20, 2006. Unless the IRS determines that collection will be jeopardized by delay, no levy or proceeding in court shall be made, begun, or prosecuted against a requesting spouse requesting relief under § 1.6015-2 or § 1.6015-3 for the collection of any assessment to which the request relates until the expiration of the 90-day period described in paragraph (b) of this section, or if a petition is filed with the Tax Court, until the decision of the Tax Court becomes final under section 7481. The restrictions on collection begin on the date the request is filed with the IRS. For requests for relief made solely under § 1.6015-4, the restrictions on collection do not begin until December 20, 2006, and only apply with respect to liabilities remaining unpaid on or after that date.

    (iii) Rules for determining the period of the restrictions on collection. For more information regarding the date on which a decision of the Tax Court becomes final, see section 7481 and the regulations thereunder. Notwithstanding paragraphs (c)(1)(i) and (ii) of this section, if the requesting spouse appeals the Tax Court's decision, the IRS may resume collection of the liability from the requesting spouse on the date the requesting spouse files the notice of appeal, unless the requesting spouse files an appeal bond pursuant to the rules of section 7485. Jeopardy under paragraphs (c)(1)(i) and (ii) of this section means conditions exist that would require an assessment under section 6851 or 6861 and the regulations thereunder.

    (3) Suspension of the running of the period of limitations. The running of the period of limitations in section 6502 on collection against the requesting spouse of the assessment to which the request under § 1.6015-2, § 1.6015-3, or § 1.6015-4 relates is suspended for the period during which the IRS is prohibited by paragraph (c)(1) of this section from collecting by levy or a proceeding in court and for 60 days thereafter. If the requesting spouse, however, signs a waiver of the restrictions on collection in accordance with paragraph (c)(2) of this section, the suspension of the period of limitations in section 6502 on collection against the requesting spouse will terminate on the date that is 60 days after the date the waiver is filed with the IRS.

    (4) * * *

    (iii) Assessment to which the request relates. For purposes of this paragraph (c), the assessment to which the request relates is the entire assessment of the understatement or the balance due shown on the return to which the request relates, even if the request for relief is made with respect to only part of that understatement or balance due.

    (d) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 15. Section 1.6015-8 is amended by adding paragraph (d) to read as follows:
    § 1.6015-8 Applicable liabilities.

    (d) Effective/applicability date. This section will be applicable on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 1.6015-9 [Removed]
    Par. 16. Section 1.6015-9 is removed.
    §§ 1.6015-3 and 1.6015-8 [Amended]
    Par. 17. For each entry in the “Section” column remove the language in the “Remove” column and add the language in the “Add” column in its place. Section Remove Add 1.6015-3(c)(4) Example 4 (ii), (iii), (iv), and (v), first sentence Example 5 Example 4. 1.6015-3(c)(4) Example 5 (ii), (iii), and (iv), first sentence Example 6 Example 5. 1.6015-8(c) Example 1, fifth sentence 6015(b) 6015. John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2015-29609 Filed 11-19-15; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2015-0786] RIN 1625-AA11 Regulated Navigation Area; Columbus Day Weekend, New Year's Eve Events, and Fourth of July Events; Biscayne Bay, Miami, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes amending the Columbus Day weekend regulated navigation area on Biscayne Bay in Miami, Florida. The proposed amended regulation extends the Biscayne Bay regulated navigation enforcement period to New Year's Eve and Fourth of July events. It also expands the boundaries of the regulated navigation area south to Turkey Point, east to Elliott Key, west to the shoreline, and north to the Julia Tuttle Causeway. These regulations are necessary to protect the public during Columbus Day weekend, New Year's Eve events, and Fourth of July events; periods that have historically had a significant concentration of persons and vessels on the waters of Biscayne Bay. To ensure the public's safety, all vessels within the regulated navigation area are: Required to transit the regulated navigation area at no more than 15 knots; subject to control by the Coast Guard; and required to follow the instructions of all law enforcement vessels in the area. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before December 21, 2015.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2015-0786 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Petty Officer Benjamin R. Colbert, Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    Recreational boating traffic on the waters of Biscayne Bay increases significantly during Columbus Day, New Year's Eve, and Fourth of July events. In recent years, recreational vessel speed, especially in crossing navigational channels, contributed to incidents that resulted in severe injury and death. This proposed regulation seeks to increase public safety on the waters of Biscayne Bay during holidays known for increased vessel traffic by requiring vessels to travel at a maximum speed of 15 knots. It also subjects recreational vessels to the control by Coast Guard and local law enforcement authorities.

    The legal basis for this proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    The purpose of the proposed rule is to ensure the safe transit of vessels and to protect persons, vessels, and the marine environment within the regulated navigation area during the Columbus Day weekend, New Year's Eve, and the Fourth of July.

    III. Discussion of Proposed Rule

    The District Commander for the Coast Guard's Seventh District proposes to establish a regulated navigational area in the Biscayne Bay from noon on the Saturday preceding Columbus Day to 2 a.m. on Columbus Day; from 9 p.m. December 31st until 2 a.m. January 1st; and from 7 p.m. until 2 a.m. on the night Fourth of July fireworks are scheduled in Downtown Miami and Key Biscayne. This regulated navigation area would encompass waters of the Biscayne Bay between Julia Tuttle Causeway Bridge and Turkey Point in Homestead, Florida.

    All vessels within the proposed regulated navigation area are: (1) Required to transit the regulated navigation area at no more than 15 knots; (2) subject to control by the Coast Guard; and (3) required to follow the instructions of all law enforcement vessels in the area.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    The economic impact of this rule is not significant. For the following reasons: (1) The regulated navigation area will be enforced for less than 2 days each year for Columbus Day events and less for New Year's Eve and Fourth of July events; (2) although, during the enforcement period, vessels are required to transit the area at no more than 15 knots, are subject to control by the Coast Guard, and are required to follow the instructions of all law enforcement vessels in the area, the regulated navigation area does not prohibit vessels from transiting the area; (3) during the enforcement period, vessels will be able to operate in waters that are not encompassed within the regulated navigation area without the restrictions imposed by the regulated navigation area; and (4) advance notification will be made to the local maritime community via Local Notice to Mariners and Broadcast Notice to Mariners.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the regulated navigation area may be small entities, for the reasons stated in Section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

    Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a regulated navigation area which will be enforced for less than 48 hours. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for 33 CFR part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 165.779 to read as follows:
    § 165.779 Regulated Navigation Area; Columbus Day Weekend, New Year's Eve Events, and Fourth of July Events; Biscayne Bay, Miami, FL.

    (a) Regulated area. The regulated navigation area encompasses all waters of Biscayne Bay between Julia Tuttle and Turkey Point contained within the following points: beginning at Point 1 in position 25°48′43″ N, 80°08′29″ W; thence south to Point 2 in position 25°29′07″ N, 80°10′44″ W; thence southwest to Point 3 in position 25°25′51″ N, 80°12′00″ W; thence west to Point 4 in position 25°25′51″ N, 80°19′42″ W; thence north to Point 5 in position 25°29′10″ N, 80°20′58″ W; thence northwest to Point 6 in position 25°37′35″ N, 80°18′28″ W; thence northwest to Point 7 in position 25°48′44″ N, 80°11′17″ W; thence back to origin. All coordinates are North American Datum 1983.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

    (c) Regulations. All vessels within the regulated area are required to transit at no more than 15 knots, are subject to control by the Coast Guard, and must follow the instructions of designated representatives.

    (d) Enforcement period. (1) This section will be in enforced annually on Columbus Day weekend, starting at noon on the Saturday before Columbus Day through 2 a.m. on Monday (the Columbus Day holiday); from 9 p.m. December 31st until 2 a.m. January 1st; and from 7 p.m. until 2 a.m. on the night Fourth of July fireworks are scheduled in Downtown Miami and Key Biscayne.

    (2) Columbus Day is the federally recognized holiday occurring annually on the second Monday in October.

    Dated: November 13, 2015. S.A. Buschman, Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District.
    [FR Doc. 2015-29533 Filed 11-19-15; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 294 RIN 0596-AD26 Roadless Area Conservation; National Forest System Lands in Colorado AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of proposed rulemaking; request for comment.

    SUMMARY:

    The U.S. Department of Agriculture (USDA) is proposing to reinstate the North Fork Coal Mining Area exception of the Colorado Roadless Rule. The Colorado Roadless Rule is a State-specific rule that provides direction for conserving and managing approximately 4.2 million acres of Colorado Roadless Areas (CRAs) on National Forest System (NFS) lands within the state of Colorado. The North Fork Coal Mining Area exception allowed for temporary road construction for coal exploration and/or coal-related surface activities in an area defined as the North Fork Coal Mining Area, which was inadvertently reported as 19,100 acres in 2012, and was actually 19,500 acres. The Forest Service, on behalf of the Department, has prepared a supplemental environmental impact statement (SEIS) addressing specific environmental disclosure deficiencies identified by the District Court of Colorado. In addition, the Department is proposing to correct certain CRA boundaries associated with the North Fork Coal Mining Area based on updated information. The Forest Service invites written comments on both the proposed rule and supplemental draft environmental impact statement.

    DATES:

    Comments on this proposed rule must be received in writing by January 4, 2016. Comments concerning the supplemental draft environmental impact statement contained in this proposed rule must be received in writing by January 4, 2016.

    ADDRESSES:

    Comments may be submitted electronically via the internet to go.usa.gov/3JQwJ or to www.regulations.gov. Send written comments to: Colorado Roadless Rule, 740 Simms Street, Golden, CO 80401.

    All comments, including names and addresses, will be placed in the project record and available for public inspections and copying.

    The public may inspect comments received on this proposed rule at USDA, Forest Service, Ecosystem Management Coordination Staff, 1400 Independence Ave. SW., Washington, DC, between 8 a.m. and 4:30 p.m. on business days. Those wishing to inspect comments should call 202-205-0895 ahead to facilitate an appointment and entrance to the building. Comments may also be inspected at USDA, Forest Service Rocky Mountain Regional Office, Strategic Planning Staff, 740 Simms, Golden, Colorado, between 8 a.m. and 4:30 p.m. on business days. Those wishing to inspect comments at the Regional Office should call 303-275-5156 ahead to facilitate an appointment and entrance to the building.

    FOR FURTHER INFORMATION CONTACT:

    Ken Tu, Interdisciplinary Team Leader, Rocky Mountain Regional Office at 303-275-5156.

    Individuals using telecommunication devices for the deaf may call the Federal Information Relay Services at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    Background

    In July 2012, the USDA promulgated the Colorado Roadless Rule, a State-specific regulation for conserving and managing approximately 4.2 million acres of CRAs on NFS lands. The Rule addressed State-specific concerns while conserving roadless area characteristics. One State-specific concern involved continued exploration and development of coal resources in the North Fork Valley area of the Grand Mesa, Uncompahgre, and Gunnison (GMUG) National Forests. The Colorado Roadless Rule addressed this State-specific concern by defining an area called the North Fork Coal Mining Area and developing an exception that allowed temporary road construction for coal-related activities within that defined area.

    In July 2013, High Country Conservation Advocates, WildEarth Guardians, and Sierra Club challenged the Forest Service consent decision to the Bureau of Land Management (BLM) modifying two existing coal leases, the BLM's companion decision to modify the leases, the BLM's authorization of exploration in the lease modification areas, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule. In June 2014, the District Court of Colorado found the environmental documents supporting the four decisions to be in violation of NEPA. The deficiencies identified by the Court associated with the Colorado Roadless Rule included: Failure to disclose greenhouse gas emissions associated with potential mine operations; failure to disclose greenhouse gas emissions associated with combustion of coal potentially mined from the area; and failure to address a report about coal substitution submitted during a public comment period. In September 2014, the District Court of Colorado vacated the exploration plan, the lease modifications, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule (36 CFR 294.43(c)(1)(ix)) but otherwise left the Rule intact and operational.

    The final 2012 Colorado Roadless Rule was developed collaboratively between the USDA, Forest Service, State of Colorado, and interested publics. The North Fork Coal Mining Area exception was developed by a 13-member, bipartisan task force established under Colorado Revised Statute § 36-7-302 to make recommendations to the Governor regarding management of roadless areas in Colorado national forests. Between June 8, 2005, with the signing of Colorado Senate bill 05-243 which created the Roadless Task Force and November 13, 2006, with then Governor Owen signing the Colorado State Petition, the task force held nine public meetings throughout the State and six deliberative meetings of the task force members that were open to the public, and reviewed and considered over 40,000 public comments. Comments were both supportive and opposed to coal extraction. The task force recommended a Colorado Roadless Rule not apply to about 55,000 acres of roadless areas in the GMUG National Forests for activities related to and in support of underground coal mining.

    On November 13, 2006 then-Governor Bill Owens submitted a petition to the USDA to develop a State-specific roadless rule. The petition reflected the task force recommendations and included the North Fork Coal Mining Area exception. Governor Owens stated that the petition weighed Colorado's interests and reflected the concerns of the entire State. The 2006 petition attempted to strike a balance between those that supported coal extraction and those that opposed it by proposing that a roadless rule not apply to the North Fork Valley. Potential coal resources within roadless areas on the Pike-San Isabel, Routt, White River, and San Juan National Forests were not included in the petition.

    After Governor Owens submitted the State's petition, Bill Ritter, Jr. was elected Governor of Colorado. In April 2007, then-Governor Ritter resubmitted the petition with minor modifications. Governor Ritter supported the concept of having the Colorado Roadless Rule not apply to the North Fork Coal Mining Area but explicitly asked the area remain in the Colorado roadless inventory. In 2010, John Hickenlooper was elected Governor of Colorado. Governor Hickenlooper also supported having a North Fork Coal Mining Area exception.

    Throughout the development of the Colorado Roadless Rule, the USDA, Forest Service, and State of Colorado attempted to strike a balance between those that support and oppose coal mining in CRAs. The North Fork Coal Mining Area reflects this effort to find common ground. In November 2006, Governor Owens petitioned approximately 55,000 acres be considered as the North Fork Coal Mining Area, which included all or portions of Currant Creek, Electric Mountain, Flatirons, Flattops-Elk Park, Pilot Knob, and Sunset CRAs. In July 2008, the North Fork Coal Mining Area was reduced to approximately 29,000 acres in the proposed rule and included all or portions of Currant Creek, Electric Mountain, Flatirons, Pilot Knob, and Sunset CRAs. In April 2011, the North Fork Coal Mining Area was further reduced to approximately 20,000 acres in the revised proposed rule and included all or portions of Currant Creek, Electric Mountain, Flatirons, Pilot Knob, and Sunset CRAs. In July 2012, the North Fork Coal Mining Area was reported in error as 19,100 acres in the final rule. The actual acreage was 19,500, and included all or portions of Flatirons, Pilot Knob, and Sunset CRAs. The changes made to the North Fork Coal Mining Area were a direct result of public comments and the desire to balance economic concerns with roadless values.

    Throughout the rulemaking process, a total of five formal comment periods were held by the State and Forest Service resulting in 24 public meetings and over 312,000 comments. In addition, five meetings open to the public were held by the Roadless Area Conservation National Advisory Committee, which provided recommendations to the Secretary of Agriculture. The USDA believes there is an appropriate balance between conserving roadless area characteristics and the state-specific concerns in the continued exploration and development of coal resources in the July 2012 final rule where less than 0.5 percent of the CRAs were designated as the North Fork Coal Mining Area.

    Need for Rulemaking

    The State of Colorado maintains that coal mining in the North Fork Coal Mining Area provides an important economic contribution and stability for the communities of the North Fork Valley. USDA and the Forest Service are committed to contributing to energy security, and carrying out the government's overall policy to foster and encourage orderly and economic development of domestic mineral resources.

    All existing Federal coal leases within CRAs occur in the North Fork Valley near Paonia, Colorado on the GMUG National Forests. Coal from this area meets the Clean Air Act definition for compliant and super-compliant coal, which means it has high energy value and low sulphur, ash and mercury content. There are two mines currently holding leases within CRAs. One is operating, producing approximately 5.2 million tons of coal annually. The second is currently idle due to a fire and flood within their mine operation. The final rule accommodates continued coal mining opportunities within the North Fork Coal Mining Area. At approximately 19,500 acres, this area is less than 0.5% of the total 4.2 million acres of CRAs. The North Fork Coal Mining Area exception allows for the construction of temporary roads for exploration and surface activities related to coal mining for existing and future coal leases. The reinstatement of this exception does not approve any future coal leases, nor does it make a decision about the leasing availability of any coal within the State. Those decisions would need to undergo separate environmental analyses, public input, and decision-making.

    Supplemental Environmental Impact Statement

    A Supplemental Environmental Impact Statement (SEIS) has been prepared to complement the 2012 Final EIS for the Colorado Roadless Rule. The SEIS is limited in scope to address the deficiencies identified by the District Court of Colorado in High Country Conservation Advocates v. United States Forest Service (13-01723, D. Col), correction of boundary information, and to address scoping comments. In conjunction with the 2012 Final EIS, the SEIS discloses the environmental consequences of reinstating the North Fork Coal Mining Area exception into the Colorado Roadless Rule.

    Three alternatives are addressed in detail in the SEIS. Alternative A is the No Action Alternative, and would continue the current management under the Colorado Roadless Rule without a North Fork Coal Mining Area exception. Alternative A would manage the 19,500 acres of CRA within the vacated North Fork Coal Mining Area as non-upper tier roadless. Alternative B (proposed action), would reinstate the North Fork Coal Mining Area exception, allowing temporary road construction for coal mining related activities on 19,700 acres of NFS lands within CRAs. Alternative C (exclusion of “wilderness capable” lands) would establish the North Fork Coal Mining Area exception, but exclude lands identified as “wilderness capable” during the 2007 GMUG Forest Plan revision process. Alternative C would allow temporary road construction for coal mining activities on 12,600 acres of NFS lands within CRAs.

    In addition, all alternatives include boundary correction of CRAs based on more accurate inventory of forest road locations obtained since the promulgation of the 2012 Colorado Roadless Rule. These corrections will add 65 acres into the CRAs, and subtract 35 acres from CRAs along the existing road system. The court identified deficiencies were addressed in the SEIS in the following manner:

    1. Failure to disclose greenhouse gas emissions associated with potential mine operations—The SEIS estimates greenhouse gas emissions associated with mining of the coal based on three potential production levels (low, average and air quality permitted). Table 1 displays results for Alternative B (proposed action).

    Table 1—Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Coal Mining for Alternative B Under Three Production Scenarios, in Annual Tons of Carbon Dioxide Equivalents Alternative B Low scenario Average
  • scenario
  • Permitted
  • scenario
  • (max air
  • quality permit
  • values)
  • Coal Production (annual tons) 5,300,000 10,000,000 15,500,000 carbon dioxide equivalents Carbon dioxide—extraction 100,000 200,000 300,000 Methane—extraction 1,200,000 4,200,000 6,300,000 Nitrous oxide—extraction 0 0 0 Total 1,300,000 4,400,000 6,600,000

    2. Failure to disclose greenhouse gas emissions associated with combustion of coal potentially mined from the area—The SEIS includes a lifecycle analysis of greenhouse gas emissions that includes downstream effects of combustion of coal based on three potential production levels. Table 2 displays results for Alternative B (proposed action).

    Table 2—Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Transportation and Combustion of Coal for Alternative B Under Three Production Scenarios, in Metric Tons of Carbon Dioxide Equivalents Alternative B Low scenario Average
  • scenario
  • Permitted
  • scenario
  • (max air
  • quality permit
  • values)
  • Coal Production (annual tons) 5,300,000 10,000,000 15,500,000 carbon dioxide equivalents Carbon dioxide—combustion 11,600,000 22,000,000 34,500,000 All—rail transport 600,000 1,200,000 1,800,000 Carbon dioxide—overseas shipping 100,000 200,000 300,000 Total 12,300,000 23,400,000 36,600,000

    3. Failure to address a report about coal substitution submitted during a public comment period—The SEIS includes a lifecycle analysis of greenhouse gas emissions that includes the downstream effects of substituted energy sources if the North Fork Coal Mining Area exception is not reinstated (Alternative A).

    Changes in gross production and consumption of coal from the North Fork Coal Mining Area are expected to have an effect on production and consumption of other fuel sources, including alternative supplies of coal, natural gas, and other energy supplies such as renewables, especially in later years of the analysis. The SEIS characterizes market responses and substitution effects in order to estimate net changes in energy production and consumption. The ICF International's Integrated Planning Model (IPM®) was used to predict how production and consumption of other sources of coal and natural gas, as well as alternative sources of energy (e.g., renewables, bio/waste fuel) respond to, substitute, or offset for changes in the supply of low sulfur bituminous coal from the North Fork Coal Mining Area.

    Assuming that total gross production of underground coal from the North Fork Coal Mining Area increases by 172 million tons over the period 2016 to 2054 for Alternative B, compared to Alternative A, production from other substitute sources of underground coal around the nation are likely to decrease, in many cases, in response to an increase in North Fork Coal Mining Area underground coal production. These decreases in other underground coal mining would offset, in part, some of the 172 million tons of underground coal production from the North Fork Coal Mining Area, resulting in net domestic underground coal production of 91 million tons. These results are estimated using response coefficients derived from IPM® modeling results.

    Production of substitute sources of surface coal and natural gas across the country are estimated to decrease by 23 million tons and 271 BCF, in response to increases in North Fork Coal Mining Area coal production. Total electricity generation is assumed to remain constant across the three alternatives, so change in total electricity generation is equal to zero for Alternative B, compared to A. However, the mix of energy sources used to generate the electricity will change, in response to increases in North Fork Coal Mining Area coal production.

    These shifts in the mixtures of energy used to generate electricity, as well as the production of different types of energy will change carbon dioxide emissions. Total carbon dioxide emissions is estimated to increase by 131 million tons under Alternative B, compared to Alternative A.

    4. The SEIS addresses the social cost of carbon as related to the Colorado Roadless Rule. A social cost of carbon calculation was completed as part of the present net value analysis considering the 2010, 2013, and 2015 Technical Update of the social cost of carbon for Regulatory Impact Analysis Under Executive Order 12866—Interagency Working Group on social cost of carbon.

    Social cost of carbon estimates represent global measures because emissions of greenhouse gasses from within the U.S. contribute to damages around the world. The total social cost of carbon values therefore account for global damages caused by greenhouse gas emissions. The SEIS discusses greenhouse gas estimates in the context of (i) total or global social cost of carbon estimates and (ii) domestic (U.S.) estimate represented by applying 7 percent to 23 percent of social cost of carbon estimates, and (iii) a forest estimate for the GMUG national forest boundary.

    Discussion of these accounting stances is intended to help the decision maker and the public understand the relative importance of considering greenhouse gas damages as a global problem, in comparison to the more traditional domestic benefit cost stance adopted for regulatory impact analysis and NEPA effects analysis for public land management decision-making.

    Present net value results, which include the social cost of carbon calculation, estimated under the global view are primarily negative, with values as low as negative $12 billion in net damages to positive $1.9 billion in net benefits for Alternative B, compared to Alternative A. Present net value ranges from negative $6.8 billion to positive $1.3 billion for Alternative C, relative to Alternative A. Midpoint present net value estimates range from negative $0.8 to negative $3.4 billion in net damages for Alternatives B and C, compared to Alternative A.

    Regulatory Considerations Regulatory Planning and Review

    USDA consulted with the Office of Management and Budget and determined this proposed rule does not meet the criteria for a significant regulatory action under Executive Order 12866.

    Regulatory Flexibility Act and Consideration of Small Entities

    USDA certifies the proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities as determined in the 2012 Regulatory Flexibility Analysis. Therefore notification to the Small Business Administration's Chief Council for Advocacy is not required pursuant to Executive Order 13272.

    Energy Effects

    The Colorado Roadless Rule and the North Fork Coal Mining Area exception do not constitute a “significant energy action” as defined by Executive Order 13211. No novel legal or policy issues regarding adverse effects to supply, distribution, or use of energy are anticipated beyond what has been addressed in the 2012 FEIS or the Regulatory Impact Analysis prepared in association with the final 2012 Colorado Roadless Rule. The proposed reinstatement of the North Fork Coal Mining Area exception does not restrict access to privately held mineral rights, or mineral rights held through existing claims or leases, and allows for disposal of mineral materials. The proposed rule does not prohibit future mineral claims or mineral leasing in areas otherwise open for such. The rulemaking provides a regulatory mechanism for consideration of requests for modification of restriction if adjustments are determined to be necessary in the future.

    Federalism

    USDA has determined the proposed rule conforms with the Federalism principles set out in Executive Order 13132 and does not have Federalism implications. The rulemaking would not impose any new compliance costs on any State; and the rulemaking would not have substantial direct effects on States, on the relationship between the national government and the states, nor on the distribution of power and responsibilities among the various levels of government.

    The proposed rule is based on a petition submitted by the State of Colorado under the Administrative Procedure Act at 5 U.S.C. 553(e) and pursuant to USDA regulations at 7 CFR 1.28. The State's petition was developed through a task force with local government involvement. The State of Colorado is a cooperating agency pursuant to 40 CFR 1501.6 of the Council on Environmental Quality regulations for implementation of NEPA.

    Takings of Private Property

    USDA analyzed the proposed rule in accordance with the principles and criteria contained in Executive Order 12630. The Agency determined the proposed rule does not pose the risk of a taking of private property.

    Civil Justice Reform

    USDA reviewed the proposed rule in context of Executive Order 12988. The Agency has not identified any State or local laws or regulations that are in conflict with this proposed rule or would impede full implementation of this proposed rule. However, if this proposed rule were adopted, (1) all State and local laws and regulations that conflict with this rulemaking or would impede full implementation of this rulemaking would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) this rulemaking would not require the use of administrative proceedings before parties could file suit in court.

    Tribal Consultation

    USDA provided an introductory letter and the Notice of Intent for the Colorado Roadless Rule and the supplemental draft EIS to the Ute, Ute Mountain Ute, and Southern Ute Indian Tribes in context of Executive Order 13175. No specific requests from any tribes were made for additional information or meetings. No letters from any tribes have been received concerning the proposed action.

    Unfunded Mandates

    USDA has assessed the effects of the Colorado Roadless Rule on State, local, and Tribal governments and the private sector. This proposed rule does not compel the expenditure of $100 million or more by State, local, or Tribal governments, or anyone in the private sector. Therefore, a statement under section 202 of title II of the Unfunded Mandates Reform Act of 1995 is not required.

    Paperwork Reduction Act

    This rulemaking does not call for any additional recordkeeping, reporting requirements, or other information collection requirements as defined in 5 CFR 1320 that are not already required by law or not already approved for use. The proposed rule imposes no additional paperwork burden on the public. Therefore the Paperwork Reduction Act of 1995 does not apply to this proposal.

    List of Subjects in 36 CFR Part 294

    National Forests, Recreation areas, Navigation (air), and State petitions for inventoried roadless area management.

    For the reasons set forth in the preamble, the Forest Service proposes to amend part 294 of Title 36 of the Code of Federal Regulations by reinstating 36 CFR 294.43(c)(1)(ix) to read as follows:

    PART 294—SPECIAL AREAS Subpart D—Colorado Roadless Area Management 1. The authority citation for part 294, subpart D continues to read as follows: Authority:

    16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201, 205.

    2. Amend § 294.43 by revising paragraph (c)(1)(ix) to read as follows:
    § 294.43 Prohibition on road construction and reconstruction.

    (c) * * *

    (1) * * *

    (ix) A temporary road is needed for coal exploration and/or coal-related surface activities for certain lands with Colorado Roadless Areas in the North Fork Coal Mining Area of the Grand Mesa, Uncompahgre, and Gunnison National Forests as defined by the North Fork Coal Mining Area displayed on the final Colorado Roadless Areas map. Such roads may also be used for collecting and transporting coal mine methane. Any buried infrastructure, including pipelines, needed for the capture, collection, and use of coal mine methane, will be located within the rights-of-way of temporary roads that are otherwise necessary for coal-related surface activities including the installation and operation of methane venting wells.

    Dated: November 6, 2015. Robert Bonnie, Under Secretary, Natural Resources and Environment.
    [FR Doc. 2015-29592 Filed 11-19-15; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 215 [Docket DARS-2015-0051] RIN 0750-AI75 Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to stipulate that DoD contracting officers shall request a limited-scope audit, unless a full-scope audit is appropriate for the circumstances, in the interest of promoting voluntary contractor disclosure of defective pricing identified by the contractor after contract award.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D030, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D030” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D030.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D030” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D030 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Mark Gomersall, telephone 571-372-6176.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD is proposing to revise the DFARS to stipulate that DoD contracting officers shall request a limited-scope audit when a contractor voluntarily discloses defective pricing after contract award, unless a full-scope audit is appropriate for the circumstances. In response to the Better Buying Power 2.0 initiative on “Eliminating Requirements Imposed on Industry where Costs Outweigh Benefits,” contractors recommended several changes to 41 U.S.C. chapter 35, Truthful Cost or Pricing Data (formerly the Truth in Negotiations Act) and to the related DFARS guidance. Specifically, contractors recommended that DoD clarify policy guidance to reduce repeated submissions of certified cost or pricing data. Frequent submissions of such data are used as a defense against defective pricing claims by DoD after contract award, since data that are frequently updated are less likely to be considered outdated or inaccurate and, therefore, defective. Better Buying Power 3.0 called for a revision of regulatory guidance regarding the requirement for contracting officers to request an audit even if a contractor voluntarily discloses defective pricing after contract award.

    II. Discussion and Analysis

    This proposed rule amends DFARS 215.407-1(c) to—

    • Require DoD contracting officers to request a limited-scope unless a full-scope audit is appropriate for the circumstances, when contractors voluntarily disclose defective pricing after contract award;

    • Indicate that to determine the appropriate scope of the audit, the contracting officer should consult with Defense Contract Audit Agency; and

    • Clarify that voluntary disclosure of defective pricing does not waive Government entitlement to the recovery of any overpayment plus interest on the overpayments, or rights to pursue defective pricing claims.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    The objective of the proposed rule is to stipulate that DoD contracting officers shall request a limited-scope audit when a contractor voluntarily discloses defective pricing after contract award, unless a full-scope audit is appropriate for the circumstances. This rule will apply to all DoD contractors, including small entities, who are required to submit certified cost or pricing data. If those small entities usually submit cost or pricing data frequently in order to avoid defective pricing claims, then this rule may encourage them to reduce the number of such submissions.

    There is no change to reporting or recordkeeping as a result of this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules.

    There are no known significant alternative approaches to the rule that would meet the requirements.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D030), in correspondence.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 215

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 215 is proposed to be amended as follows:

    PART 215—CONTRACTING BY NEGOTIATION 1. The authority citation for part 215 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Add sections 215.407 and 215.407-1 to subpart 215.4 to read as follows:
    215.407 Special cost or pricing areas.
    215.407-1 Defective certified cost or pricing data.

    (c)(i) When contractors voluntarily disclose defective pricing after contract award, contracting officers shall request a limited-scope audit (e.g., limited to the affected cost elements of the defective pricing disclosure) unless a full-scope audit is appropriate for the circumstances (e.g., nature or dollar amount of the defective pricing disclosure). To determine the appropriate scope of the audit, the contracting officer should consult with Defense Contract Audit Agency (DCAA). At a minimum, the contracting officer shall request that DCAA evaluate—

    (A) Completeness of the contractor's voluntary disclosure on the affected contract;

    (B) Accuracy of the contractor's cost impact calculation for the affected contract; and

    (C) Potential impact on existing contracts, task or deliver orders, or other proposals the contractor has submitted to the Government.

    (ii) Voluntary disclosure of defective pricing is not a voluntary refund as defined in 242.7100 and does not waive the Government entitlement to the recovery of any overpayment plus interest on the overpayments in accordance with FAR 15.407-1(b)(7).

    (iii) Voluntary disclosure of defective pricing does not waive the Government's rights to pursue defective pricing claims on the affected contract or any other Government contract.

    [FR Doc. 2015-29555 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 217 and 234 [Docket DARS-2015-0042] RIN 0750-AI62 Defense Federal Acquisition Regulation Supplement: Extension and Modification of Contract Authority for Advanced Component Development and Prototype Units (DFARS Case 2015-D008) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2015, which amended a section of the National Defense Authorization Act for Fiscal Year 2010, to extend and modify contract authority for advanced component development and prototype units.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D008, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D008” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D008.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D008” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D008 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Janetta Brewer, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Janetta Brewer, telephone: 571-372-6104.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is proposing to revise the DFARS to implement section 811 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291). Section 811 entitled “Extension and Modification of Contract Authority for Advanced Component Development and Prototype Units” amends paragraphs (a) and (b) of section 819 of the NDAA for FY 2010 (10 U.S.C. 2302 note).

    The rule proposes to amend DFARS 217.202(2) and 234.005-1(1) to add “or initial production” to the text. This will allow for the inclusion of a contract line item (possibly an option) to go to initial production without further competition. However, there is no new impact on contract cost because section 819(b) of the NDAA for FY 2010 (which is unchanged in 2015) continues to place a limitation on costs associated with any contract line item (option or otherwise) for the delivery of initial or additional items. The rule also extends this authority at DFARS 234.005-1(2) to September 30, 2019, from September 30, 2014.

    II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    III. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule primarily provides greater flexibility to DoD when contracting for major system acquisitions. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    The purpose of the rule is to implement section 811 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291). Section 811 entitled “Extension and Modification of Contract Authority for Advanced Component Development and Prototype Units” amends paragraphs (a) and (b) of section 819 of the NDAA for FY 2010 (10 U.S.C. 2302 note).

    The rule proposes to amend DFARS 217.202(2) and 234.005-1(1) to add “or initial production” to the text. This will allow for the inclusion of a contract line item (possibly an option) to go to initial production without further competition.

    The rule will apply to DoD major defense acquisition program contractors and subcontractors. Most major defense acquisition programs are awarded to large concerns as they are of a scope too large for any small business to perform. As such, it is not expected that this rule will have a significant impact on a substantial number of small entities.

    The rule does not impose any additional reporting, recordkeeping, and other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no alternatives available that would meet the objectives of the statute.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 601. Such comments should be submitted separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D008) in correspondence.

    IV. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. chapter 35.

    List of Subjects in 48 CFR Parts 217 and 234

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 217 and 234 are proposed to be amended as follows:

    1. The authority citation for parts 217 and 234 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 217—SPECIAL CONTRACTING METHODS 2. Amend section 217.202 by revising paragraph (2) to read as follows:
    217.202 Use of options.

    (2) See 234.005-1 for limitations on the use of contract options for the provision of advanced component development, prototype, or initial production of technology developed under the contract or the delivery of initial or additional items.

    PART 234—MAJOR SYSTEM ACQUISITION
    234.005-1 [Amended]
    3. Amend section 234.005-1— a. In paragraph (1) introductory text, by removing “component development or prototype of technology” and adding “component development, prototype, or initial production of technology” in its place, and removing “additional prototype items” and adding “additional items” in its place; and b. In paragraph (2), by removing “September 30, 2014” and adding “September 30, 2019” in its place.
    [FR Doc. 2015-29552 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 225 [Docket DARS-2015-0053] RIN 0750-AI77 Defense Federal Acquisition Regulation Supplement: Buy American and Balance of Payments Program—Clause Prescription (DFARS Case 2015-D037) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify how the clause prescription addresses applicability when an exception to the Buy American statute or Balance of Payments Program applies.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D037, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D037” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D037.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D037” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D037 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Tresa Sullivan, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Tresa Sullivan, telephone 571-372-6089.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is proposing to revise the DFARS to clarify when it is appropriate to not include DFARS clause 252.225-7001, Buy American and Balance of Payments Program, with regard to exceptions to the Buy American statute and Balance of Payment Program. The prescription for use of DFARS clause 252.225-7001 does not clearly make a distinction with regard to when an exception to the Buy American statute or Balance of Payments Program applies. As written, procurement offices may inaccurately believe that it is permissible to omit the clause if either situation occurs. However, the clause is required in solicitations and contracts unless (1) the acquisition is for supplies for use within the United States and an exception to the Buy American statute applies (e.g., nonavailability or public interest), or (2) the acquisition is for supplies for use outside the United States and an exception to the Balance of Payments Program applies.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it applies to internal procedures for Government contracting officers. This proposed rule clarifies how clause prescription addresses applicability when an exception to the Buy American statute or Balance of Payments Program applies. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    The objective of this proposed rule is to clarify the prescription for use of DFARS clause 252.225-7001, Buy American and Balance of Payments Program, to state that the clause does not apply when (1) the acquisition is for supplies for use within the United States and an exception to the Buy American statute applies, or (2) the acquisition is for supplies for use outside the United States and an exception to the Balance of Payments Program applies.

    DoD does not expect this proposed rule to have a significant impact on small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it merely clarifies how the clause prescription addresses applicability when an exception to the Buy American statute or Balance of Payments Program applies.

    This proposed rule does not add any new reporting, recordkeeping, and other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D037), in correspondence.

    V. Paperwork Reduction Act

    The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0229, entitled Defense Federal Acquisition Regulation Supplement Part 225, Foreign Acquisition and related clauses.

    List of Subjects in 48 CFR Part 225

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is proposed to be amended as follows:

    PART 225—FOREIGN ACQUISITION 1. The authority citation for part 225 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    225.1100 [Amended]
    2. Remove “Subparts” in two places and add “subparts” in their place. 3. Amend section 225.1101 by— a. Revising paragraph (2)(i)(C); b. Redesignating paragraphs (2)(i)(D) and (E) as paragraphs (2)(i)(E) and (F); and c. Adding a new paragraph (2)(i)(D).

    The revision and addition read as follows:

    225.1101 Acquisition of supplies.

    (2)(i) * * *

    (C) The acquisition is for supplies for use within the United States and an exception to the Buy American statute applies, e.g., nonavailability or public interest (see FAR 25.103 and 225.103); or

    (D) The acquisition is for supplies for use outside the United States and an exception to the Balance of Payments Program applies (see 225.7501);

    [FR Doc. 2015-29558 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 [Docket DARS-2015-0052] RIN 0750-AI76 Defense Federal Acquisition Regulation Supplement: Duty-Free Entry Threshold (DFARS Case 2015-D036) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update the threshold for duty-free entry on foreign supplies that are not qualifying country supplies or eligible foreign supplies.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments in response to DFARS Case 2015-D036 by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D036” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D036.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D036” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D036 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Kyoung Lee, OUSD(AT&L) DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kyoung Lee, telephone: 571-372-6093.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD is proposing to revise DFARS 225.9, Customs and Duties, and the clause at DFARS 252.225-7013, Duty-Free Entry, by increasing the duty-free entry threshold on nonqualifying country supplies and ineligible foreign supplies from $200 to $300. The current threshold was established on April 30, 2003 based on the estimated cost to process a duty-free entry certificate at the time. This proposed rule makes an upward adjustment of the $200 threshold to $300 based on the U.S. Consumer Price Index (CPI) located at http://www.bls.gov/CPI/.

    II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    III. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule only makes an upward adjustment of an administrative threshold. However, an initial regulatory flexibility analysis has been prepared consistent with 5 U.S.C. 603 and is summarized as follows:

    The objective of this rule is to revise DFARS 225.9, Customs and Duties, and the clause at DFARS 252.225-7013, Duty-Free Entry, by increasing the duty-free entry threshold on nonqualifying country supplies and ineligible foreign supplies from $200 to $300. The current threshold, established in 2003, was based on the estimated cost to process a duty-free entry certificate at the time. This rule proposes to make the upward adjustment to reflect annual inflation rates (based on the U.S. Consumer Price Index) that have occurred in the last 12 years.

    Current data indicates, on average, approximately 31,500 duty-free entry certificates on foreign supplies for DoD per year. DoD does not expect a change in the estimated duty-free entry processes. As such, small entities will not be materially affected by this rule.

    This rule does not impose any additional reporting, recordkeeping, and other compliance requirements. This rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D036), in correspondence.

    VI. Paperwork Reduction Act

    The rule affects the information collection requirements in the clause at DFARS 252.225-7013, currently approved under OMB Control Number 0704-0229, titled Foreign Acquisition, in accordance with the Paperwork Reduction Act (44.U.S.C. chapter 35). The impact, however, is negligible, because this rule only makes an upward adjustment of the duty-free entry threshold from the $200 to $300.

    List of Subjects in 48 CFR Parts 225 and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 225 and 252 are proposed to be amended as follows:

    1. The authority citation for parts 225 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 225—FOREIGN ACQUISITION
    225.901 [Amended]
    2. In section 225.901, amend paragraph (3) by removing “$200” and adding “$300” in its place. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    252.225-7013 [Amended]
    3. Amend section 252.225-7013 by— a. Removing the clause date “(NOV 2014)” and adding “(DATE)” in its place; and b. Amending paragraph (b)(3) by removing “$200” and adding “$300” in its place.
    [FR Doc. 2015-29557 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 239 [Docket DARS-2015-0046] RIN 0750-AI72 Defense Federal Acquisition Regulation Supplement; Long-Haul Telecommunications (DFARS Case 2015-D023) AGENCY:

    Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add a definition of “long-haul telecommunications.”

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D023, using any of the following methods:

    ○ Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D023” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D023.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DARS Case 2015-D023 on your attached document.

    Email: [email protected] Include DFARS Case 2015-D023 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Kyoung Lee, OUSD(AT&L) DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kyoung Lee, telephone 571-372-6093.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is proposing to amend DFARS 239.7401 to add a definition of “long-haul telecommunications.” The rule also amends DFARS 239.7402 to provide a pointer to internal Government procedures in DFARS Procedures, Guidance, and Information (PGI) to identify the Defense Information Systems Agency as the sole procurement activity for long-haul telecommunications requirements as addressed in DoD Directive 5105.19, Defense Information Systems Agency.

    II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    III. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule only adds a definition of “long-haul telecommunications” and provides a pointer to DFARS PGI for procedures internal to DoD. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    The purpose of this proposed rule is to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add a definition of “long-haul telecommunications” so that contracting officers will know when the procedures at DFARS Procedures, Guidance, and Information 239.7402 are applicable.

    The requirements under this rule will apply to long-haul telecommunications (Product Service Code D304) requirements as addressed in DoD Directive 5105.19, Defense Information Systems Agency (DISA). According to data available in the Federal Procurement Data System (FPDS) for fiscal year 2014 and through July 31, 2015, DoD awarded 13,596 new long-haul telecommunications contracts. Approximately 3 percent (451) of the total were awarded to small entities (comprised of 222 unique small entities).

    This rule does not create any new reporting or recordkeeping requirements. This rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D023) in correspondence.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 239

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 239 is proposed to be amended as follows:

    PART 239—ACQUISITION OF INFORMATION TECHNOLOGY 1. The authority citation for part 239 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Amend section 239.7401 by— a. Removing the alphabetical paragraph designation from each definition; and b. Adding, in alphabetical order, a new definition for “Long-haul telecommunications”.

    The addition reads as follows:

    239.7401 Definitions.

    Long-haul telecommunications means all general and special purpose long-distance telecommunications facilities and services (including commercial satellite services, terminal equipment and local circuitry supporting the long-haul service) to or from the post, camp, base, or station switch and/or main distribution frame (except for trunk lines to the first-serving commercial central office for local communications services).

    3. Amend section 239.7402 by adding paragraph (d) to read as follows:
    239.7402 Policy.

    (d) Long-haul telecommunications services. When there is a requirement for procurement of long-haul telecommunications services, follow PGI 239.7402(d).

    [FR Doc. 2015-29554 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 241 [Docket DARS-2015-0050] RIN 0750-AI74 Defense Federal Acquisition Regulation Supplement: Contract Term Limit for Shared Energy Savings Contract Services (DFARS Case 2015-D018) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the contract term for shared energy savings contract services.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before January 19, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D018, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D018” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D018.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D018” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D018 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Janetta L. Brewer, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Janetta L. Brewer, telephone 571-372-6104.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is proposing to revise the DFARS to clarify the contract term for contracts awarded under the statutory authority of 10 U.S.C. 2913. Section 2913 requires DoD to develop a simplified method of contracting for shared energy savings contract services that will accelerate the use of such contracts. DoD is authorized by section 2913 to contract with utility service providers to implement energy conservation measures on military bases. Section 2913 does not indicate a term limit for contracts executed under this authority.

    II. Discussion and Analysis

    The proposed rule revises DFARS 241.103 by adding paragraph (2) to state that contracting officers may enter into a shared energy savings contract under 10 U.S.C. 2913 for a period not-to-exceed 25 years. Experience has indicated that a period of less than 25 years is frequently insufficient to amortize the capital cost. Twenty-five years allows a greater volume and variety of energy conservation measures, and is consistent with non-DoD agency practice for similar contracts.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule only seeks to clarify the contract term for contracts awarded under the statutory authority of 10 U.S.C. 2913. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the contract term for contracts awarded under the statutory authority of 10 U.S.C. 2913. Section 2913 requires DoD to develop a simplified method of contracting for shared energy savings contract services that will accelerate the use of such contracts. DoD is authorized by section 2913 to contract with utility service providers to implement energy conservation measures on military bases. Section 2913 does not indicate a term limit for contracts executed under this authority, and this has created ambiguity and inconsistency throughout DoD on the term limit that is imposed on contracts awarded under the authority. Additionally, the ambiguity has resulted in a hesitation to enter shared energy savings contracts, contrary to the intent of section 2913.

    The proposed rule is not anticipated to have a significant economic impact on small business entities. The number of contract awards made under the authority of 10 U.S.C. 2913 is not currently tracked by DoD's business systems. However, it is estimated that approximately 25 shared energy savings projects are initiated across DoD each year, with approximately 17 being awarded annually. It is believed that most awards are made to large utility providers, with generally 25% or more of the renovation and operations & maintenance work executed under the awards being subcontracted to local small business by the utility provider.

    This rule does not impose new recordkeeping or reporting requirements. This rule only serves to clarify the maximum contract term that may be authorized for these awards. Any burden caused by this rule is expected to be minimal and will not be any greater on small entities than it is on large businesses.

    The rule does not impose any additional reporting, recordkeeping, and other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to this rule.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D018), in correspondence.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 241

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 241 is proposed to be amended to read as follows:

    PART 241—ACQUISITION OF UTILITY SERVICES 1. The authority citation for part 241 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Amend section 241.103 by redesignating paragraphs (2) and (3) as paragraphs (3) and (4) and adding a new paragraph (2) to read as follows:
    241.103 Statutory and delegated authority.

    (2) The contracting officer may enter into a shared energy savings contract under 10 U.S.C. 2913 for a period not to exceed 25 years.

    [FR Doc. 2015-29553 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 130808697-5999-01] RIN 0648-XC808 Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Multi-Year Specifications for Monitored and Prohibited Harvest Species Stock Categories AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    NMFS proposes to implement annual catch limits (ACL) and, where necessary, other annual reference points (overfishing limits (OFL) and acceptable biological catches (ABC)) for certain stocks in the monitored and prohibited harvest species categories under the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed ACLs are: Jack mackerel, 31,000 metric tons (mt); northern subpopulation of northern anchovy, 9,750 mt; central subpopulation of northern anchovy, 25,000 mt; and krill, zero. Additionally, an OFL of 39,000 mt, an ABC of 9,750 mt and an annual catch target (ACT) of 1,500 mt is being proposed for the northern subpopulation of northern anchovy. This rule is intended to conserve and manage these stocks off the U.S. West Coast. If the ACL for any one of these stocks is reached, then fishing for that stock will be closed until it reopens at the start of the next fishing season.

    DATES:

    Comments must be received by December 21, 2015.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2013-0145, by any of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0145, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.

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

    FOR FURTHER INFORMATION CONTACT:

    Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

    SUPPLEMENTARY INFORMATION:

    The CPS fishery in the U.S. exclusive economic zone (EEZ) off the West Coast is managed under the CPS FMP, which was developed by the Pacific Fishery Management Council (Pacific Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq. The six species managed under the CPS FMP are Pacific sardine, Pacific mackerel, jack mackerel, northern anchovy (northern and central subpopulations), market squid and krill. The CPS FMP is implemented by regulations at 50 CFR part 660, subpart I.

    Management unit stocks in the CPS FMP are classified under three management categories: Actively managed; monitored; and prohibited harvest species. Active stocks are characterized by periodic stock assessments, and/or periodic or annual adjustments of target harvest levels. Management of monitored stocks, in contrast, generally involves tracking landings against the relevant ACL (previously the ABCs) and qualitative comparison to available abundance data, but without regular stock assessments or annual adjustments to target harvest levels. Species in both categories may be subject to management measures such as catch allocation, gear regulations, closed areas, closed seasons, or other forms of “active” management. For example, trip limits and a limited entry permit program are already in place for all CPS finfish. The monitored category includes jack mackerel, two sub-populations of northern anchovy stock and market squid. Krill is the only stock in the prohibited harvest category. The monitored stocks have not been managed to a hard quota like the active category stocks by NMFS (although the state of California manages market squid with an annual limit). Instead, landings have been monitored against harvest reference levels to determine if overfishing is occurring and to gauge the need for more active management such as requiring periodic stock assessments and regular adjustments to a quota. Catches of the three finfish stocks in the monitored category—northern anchovy (northern and central subpopulations) and jack mackerel— have remained well below their respective ABC (now proposed ACL levels for jack mackerel and the central anchovy population) since implementation of the CPS FMP in 2000, with average catches over the last 10 years of approximately 7,300 mt, 270 mt and 660 mt for the central and northern subpopulations of northern anchovy and jack mackerel, respectively.

    In September 2011, NMFS approved Amendment 13 to the CPS FMP, which modified the framework process used to set and adjust fishery specifications and for setting ACLs and accountability measures (AMs); Amendment 13 was intended to ensure the FMP conforms with the 2007 amendments to the MSA and NMFS' revised MSA National Standard 1 guidelines at 50 CFR part 600. Specifically, Amendment 13 maintained the existing reference points and the primary harvest control rules for the monitored stocks (jack mackerel, northern anchovy and market squid), including the large buffer built into the ABC control rule for the finfish stocks, as well as the overfishing criteria for market squid, but modified these reference points and control rules to align with the revised advisory guidelines and to comply with the new statutory requirement to establish a process for setting ACLs and AMs. This included a default management framework under which the OFL for each monitored stock was set equal to the maximum sustainable yield (MSY) value and ABC was reduced from the OFL by 75 percent as an uncertainty buffer (based on the existing ABC control rule where ABC equals 25 percent of OFL/MSY). This default framework is used unless there is determined to be a more appropriate OFL, as is the case for the northern subpopulation of northern anchovy, or stock specific ABC control rule like the proxy for the Fishing rate that is expected to result in maximum sustainable yield (FMSY proxy) for market squid of Egg Escapement ≥ 30 percent. ACLs are then set equal to the ABC or could be set lower than the ABC, along with annual catch targets (ACTs), if deemed necessary. These control rules and harvest policies for monitored CPS stocks are simpler and more precautionary than those used for actively managed stocks in recognition of the low fishing effort and low landings for these stocks, as well as the lack of current estimates of stock biomass.

    Through this action, NMFS proposes to implement the ACLs shown in Table 1 below for jack mackerel, the two subpopulations of northern anchovy, and krill, as well an OFL, ABC and ACT for the northern subpopulation of northern anchovy.

    Table 1—Proposed ACLs for Monitored CPS Finfish, Including Proposed OFL, ABC, and ACT for the Northern Subpopulation of Northern Anchovy Stock OFL ABC ACL ACT Jack mackerel 126,000 mt 31,000 mt 31,000 mt Northern anchovy, (northern subpopulation) 39,000 mt 9,750 mt 9,750 mt 1,500 mt. Northern anchovy, (central subpopulation) 100,000 mt 25,000 mt 25,000 mt Market squid FMSY proxy resulting in Egg Escapement ≥ 30% FMSY proxy resulting in Egg Escapement ≥ 30% ACL not required (Less than 1-year lifecycle and no overfishing) Krill Undefined Undefined 0

    The OFLs and ABCs listed in Table 1 for jack mackerel, the central subpopulation of northern anchovy, market squid and krill are included for information purposes only. The OFL and ABC specifications for those stocks are set in the FMP; NMFS does not propose to establish or revise them by this proposed rule.

    These proposed catch levels and reference points were recommended to NMFS by the Pacific Council and were based on recommendations from its advisory bodies according to the framework in the FMP established through Amendment 13, including OFL and ABC recommendations from its Science and Statistical Committee (SSC). The proposed ACLs for these monitored stocks would be in place for the calendar year fishing season (January 1-December 31), and would remain in place for each subsequent calendar year until new scientific information becomes available to warrant changing them, or if landings increase and consistently reach the ABC/ACL level and it necessitates a change to active management under the FMP. These management benchmarks provide a means to monitor these stocks on an annual basis. Each year, the total harvest of each stock will be assessed against the ACL until such time as the Pacific Council chooses to reassess the management of these stocks, new scientific information regarding these stocks becomes available, or harvest approaches or exceeds the ACL. These benchmarks implicitly include a postseason AM; harvest levels are monitored annually to assess whether a stock should become actively managed.

    Per the framework that was established through Amendment 13, the OFLs for the central subpopulation of northern anchovy and jack mackerel are set based on MSY values that were established through Amendment 8 to the FMP. In 2015, Amendment 14 to the CPS FMP established an FMSY of 0.3 as the MSY reference point for the northern subpopulation of northern anchovy in the CPS FMP. However, because the framework in the FMP for setting ABCs is based on applying a percentage to numerical MSY/OFLs, it was necessary to determine a numerical OFL value through the specifications process. Because the northern subpopulation of the northern anchovy is currently lightly fished and effort has been inconsistent over time, it was determined that using a catch time series as a way of setting the OFL was not appropriate as it likely was an unreliable indicator of stock status. Therefore, the best available scientific information on the population and biology of northern subpopulation northern anchovy was compiled to develop an OFL. The available information included two separate estimates of biomass; the average of these two estimates was approximately 130,000 mt. After reviewing this information, the SSC recommended that the OFL be set by multiplying the average of these two biomass estimates (130,000 mt), by an FMSY 0.3, which is also the FMSY value for Pacific mackerel. This is appropriate because, biologically, anchovy populations are likely to be as or more productive than Pacific mackerel. This calculation results in an OFL of 39,000 mt and with the established uncertainty buffer of 75 percent, an ABC of 9,750 mt. Although the proposed ACL for this stock is equal to the ABC, to further account for uncertainty surrounding the reference points for this stock, anchovy's role as forage, and because annual catch levels have been sustainably below the ACL, the Pacific Council recommended, and NMFS is proposing, an ACT of 1,500 mt.

    Market squid, because of its short life-cycle, falls under the statutory exception from the requirement to set ACLs and AMs. Section 303(a)(15) of the MSA states that the requirement for ACLs “shall not apply to a fishery for species that has a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species.” Market squid have a lifecycle of less than 1 year and have not been determined to be subject to overfishing; therefore, an ACL is not required and is not being proposed for market squid.

    NMFS is not proposing to establish or change specifications for krill by this rulemaking. Krill are a prohibited harvest species. The targeting, harvesting and transshipment of krill are all explicitly prohibited; therefore, the ACL for krill is zero. Because the harvest level is zero, setting an OFL or ABC for krill would serve no function and is not being proposed in this rule.

    If the proposed ACL and/or ACT levels are reached, or are expected to be reached, for one of these fisheries, the directed fishery would be closed until the beginning of the next fishing season. The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any such closure. Additionally, nearing or exceeding one of these ACLs or the ACT would trigger a review of whether the fishery should be moved into the actively managed category of the FMP.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

    These proposed specifications are exempt from review under Executive Order 12866.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:

    The primary action being implemented through this rule as it relates to potential economic impacts on small entities is the establishment of multi-year ACLs for the two sub-stocks of northern anchovy and for jack mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set ACLs for these fisheries based on the harvest control rules in the FMP.

    On June 12, 2014, the SBA issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 79 FR 33650, 33656 (June 12, 2014). NMFS conducted its analysis for this action in light of the new size standards.

    The entities that would be affected by the proposed action are the vessels that harvest jack mackerel and northern anchovy as part of the West Coast CPS purse seine fleet. Jack mackerel and northern anchovy are components of the CPS purse seine fishery off the U.S. West Coast, which generally fishes a complex of species, including Pacific sardine, Pacific mackerel and market squid. Currently there are 58 vessels permitted in the Federal CPS limited entry fishery off California. Annually 28 to 45 (average 39) of these CPS vessels landed anchovy and jack mackerel over the last five years. Approximately 26 baitfish licenses are issued annually in the state of Washington to harvest northern anchovy. Since 2009, the state of Oregon has not required a permit to harvest anchovy in Oregon waters. Jack mackerel is currently not fished in Oregon and Washington.

    The average annual per vessel revenue in 2013 for the West Coast CPS finfish small purse seine fleet, as well as the few vessels that target anchovy off of Oregon and Washington, was below $20.5 million; therefore, all of these vessels are considered small businesses under the SBA size standards. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner. The corresponding annual revenues from these species averaged to about $60,000 and $653,000, for jack mackerel and anchovy respectively.

    To evaluate whether this proposed rule could potentially reduce the profitability of the affected vessels, NMFS compared current and average recent historical landings to the proposed ACLs. The proposed multi-year ACL (maximum fishing level for each year) for the northern anchovy central subpopulation is 25,000 mt and the proposed northern subpopulation ACL is 9,750 mt. In 2014, 10,511 mt of the northern anchovy central subpopulation and 112 mt of northern anchovy northern subpopulation were landed. The annual average harvest from 2004 to 2014 for the central and northern subpopulations of northern anchovy is 7,300 mt and 270 mt, respectively. The proposed jack mackerel ACL is 31,000 mt. In 2014, approximately 1,800 mt of jack mackerel were landed and average annual landings of jack mackerel over the last ten years is 549 mt. Prior landings of these stocks have been well below the proposed ACLs. Therefore, although the establishment of ACLs for these stocks is considered a new management measure for these fisheries, based on current and historical landings of these stocks, this proposed action will not result in changes in current fishery operations. As a result, it is unlikely that the ACLs proposed in this rule will limit the profitability of the fleets catching these stocks and thus would not impose a significant economic impact.

    The economic impact to the fleet from the proposed action cannot be viewed in isolation. CPS finfish vessels typically harvest a number of other species, including Pacific sardine, Pacific mackerel, squid, and tuna, making these fisheries only components of a multi-species CPS fishery. Vessels rely on multiple species for profitability because each CPS stock is highly associated with different ocean conditions and different time periods, and so are harvested at various times throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore as abundance levels and markets fluctuate, the CPS fishery as a whole relies on a group of species for annual revenues. Accordingly, even if the revenue derived from the specific e fisheries addressed in this proposed rule decline, such a decline will have only a small impact, if at all, on the profits of CPS fishery vessels.

    Pursuant to the Regulatory Flexibility Act and the SBA's June 20, 2013 and June 12, 2014 final rules (78 FR 37398 and 79 FR 33647, respectively), this certification was developed for this action using the SBA's revised size standards. All entities subject to this action are small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner. Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have adverse or disproportional economic impact on these small business entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

    There are no reporting, recordkeeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 17, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-29684 Filed 11-19-15; 8:45 am] BILLING CODE 3510-22-P
    80 224 Friday, November 20, 2015 Notices ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Notice of Public Meeting of the Assembly of the Administrative Conference of the United States AGENCY:

    Administrative Conference of the United States.

    ACTION:

    Notice.

    SUMMARY:

    Pursuant to the Federal Advisory Committee Act (5 U.S.C. App.), the Assembly of the Administrative Conference of the United States will hold a meeting to consider three proposed recommendations and to conduct other business. This meeting will be open to the public.

    DATES:

    The meeting will take place on Friday, December 4, 2015, 9:00 a.m. to 2:00 p.m. The meeting may adjourn early if all business is finished.

    ADDRESSES:

    The meeting will be held at the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 (Main Conference Room).

    FOR FURTHER INFORMATION CONTACT:

    Shawne McGibbon, General Counsel (Designated Federal Officer), Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2088; email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Administrative Conference of the United States makes recommendations to federal agencies, the President, Congress, and the Judicial Conference of the United States regarding the improvement of administrative procedures (5 U.S.C. 594). The membership of the Conference, when meeting in plenary session, constitutes the Assembly of the Conference (5 U.S.C. 595).

    Agenda: The Assembly will consider three proposed recommendations as described below:

    Technical Assistance by Federal Agencies in the Legislative Process. This recommendation offers best practices for agencies when providing Congress with technical drafting assistance. It is intended to apply to situations in which Congress originates the draft legislation and asks an agency to review and provide expert technical feedback on the draft without necessarily taking an official substantive position. The recommendation urges agencies and Congress to engage proactively in mutually beneficial outreach and education. It highlights the practice of providing congressional requesters with redline drafts showing how proposed bills would affect existing law; suggests that agencies consider ways to involve appropriate agency experts in the process; and urges agencies to maintain a strong working relationship between legislative affairs and legislative counsel offices.

    Declaratory Orders. This recommendation identifies contexts in which agencies should consider the use of declaratory orders in administrative adjudications. It also highlights best practices relating to the use of declaratory orders, including explaining the agency's procedures for issuing declaratory orders, ensuring adequate opportunities for public participation in the proceedings, responding to petitions for declaratory orders in a timely manner, and making declaratory orders and other dispositions of petitions readily available to the public.

    Designing Federal Permitting Programs. This recommendation describes different types of permitting systems and provides factors for agencies to consider when designing or reviewing permitting programs. The recommendation discusses both “general” permits (which are granted so long as certain requirements are met) and “specific” permits (which involve fact-intensive, case-by-case determinations), as well as intermediate or hybrid permitting programs. It encourages agencies that adopt permitting systems to design them so as to minimize burdens on the agency and regulated entities while maintaining required regulatory protections.

    Additional information about the proposed recommendations and the order of the agenda, as well as other materials related to the meeting, can be found at the 64th Plenary Session page on the Conference's Web site: (http://www.acus.gov/meetings-and-events/plenary-meeting/64th-plenary-session).

    Public Participation: The Conference welcomes the attendance of the public at the meeting, subject to space limitations, and will make every effort to accommodate persons with disabilities or special needs. Members of the public who wish to attend in person are asked to RSVP online at the 64th Plenary Session Web page listed above, no later than two days before the meeting, in order to facilitate entry. Members of the public who attend the meeting may be permitted to speak only with the consent of the Chairman and the unanimous approval of the members of the Assembly. If you need special accommodations due to disability, please inform the Designated Federal Officer noted above at least 7 days in advance of the meeting. The public may also view the meeting through a live webcast, which will be available at: http://new.livestream.com/ACUS/64thPlenarySession.

    Written Comments: Persons who wish to comment on any of the proposed recommendations may do so by submitting a written statement either online by clicking “Submit a Comment” on the 64th Plenary Session Web page listed above or by mail addressed to: December 2015 Plenary Session Comments, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036. Written submissions must be received no later than 10:00 a.m. (EST), Monday, November 30, to assure consideration by the Assembly.

    Dated: November 17, 2015. Shawne McGibbon, General Counsel.
    [FR Doc. 2015-29674 Filed 11-19-15; 8:45 am] BILLING CODE 6110-01-P
    AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of December 1, 2015 President's Global Development Council Meeting AGENCY:

    United States Agency for International Development.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The President's Council on Global Development will meet on December 1, 2015 in Washington, DC at 12:15 p.m. Eastern Time. The meeting will be open to the public via live webcast. Details for the webcast can be found at http://www.whitehouse.gov/administration/advisory-boards/global-development-council. The purpose of this meeting is to solicit public input on key global development issues. The President's Global Development Council will focus the discussion on issues of financial inclusion.

    DATES:

    Date: Tuesday, December 1, 2015.

    Time: 12:15 p.m. Eastern Time.

    ADDRESSES:

    The President's Global Development Council will convene its meeting in Washington, DC. The public is invited to submit written statements to the President's Global Development Council by any of the following methods:

    Electronic Statements

    • Send written statements to the President's Global Development Council's electronic mailbox at [email protected] with the subject line “GDC Statement”; or

    Paper Statements

    • Send paper statements in triplicate to Jayne Thomisee, Executive Director and Designated Federal Officer, President's Global Development Council, Office of the Administrator, Room 6.8.21, U.S. Agency for International Development, 1300 Pennsylvania Avenue NW., Washington, DC 20004.

    In general, all statements will be posted on the President's Global Development Council Web page (http://www.usaid.gov/gdc) without change, including any business or personal information provided such as names, addresses, email addresses, or telephone numbers. All statements received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    Jayne Thomisee, 202-712-5506.

    SUPPLEMENTARY INFORMATION:

    In accordance with the Federal Advisory Committee Act, notice is hearby given of a meeting of the President's Global Development Council on December 1, 2015 in Washington, DC at 12:15 p.m. Eastern Time. The meeting will be broadcast on the internet via live webcast. Details for the webcast are available at http://www.whitehouse.gov/administration/advisory-boards/global-development-council. The purpose of this meeting is to solicit public input on key global development issues. The President's Global Development Council will focus the discussion on issues of financial inclusion.

    Dated: November 13, 2015. Jayne Thomisee, Executive Director & Policy Advisor.
    [FR Doc. 2015-29703 Filed 11-19-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Economic Research Service Submission for OMB Review; Comment Request November 16, 2015.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Economic Research Service

    Title: Generic Clearance for Survey Research Studies.

    OMB Control Number: 0536—NEW.

    Summary of Collection: The Economic Research Service (ERS) of the U.S. Department of Agriculture is requesting approval for a generic clearance that will allow them to conduct research to improve the quality of data collection by developing, testing, and evaluating its survey instruments, methodologies, technology, interview processes, and respondent recruitment protocols. The primary objective of ERS is providing timely research and analysis to public and private decision makers on topics related to agriculture, food, the environment, and rural America. Data collection for this collection is authorized by the 7 U.S.C. 2204(a).

    Need and use of the Information: The information collected will be used by staff from the ERS and sponsoring agencies to evaluate and improve the quality of the data in the surveys and censuses that are ultimately conducted. Specifically, the information will be used to reduce respondent burden while simultaneously improving the quality of the data collected in these surveys.

    Description of Respondents: Individuals or households; Business or other for-profit; Not-for-profit institutions; Farms; State, Local or Tribal Government.

    Number of Respondents: 10,500.

    Frequency of Responses: Reporting: Annually.

    Total Burden Hours: 16,800.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2015-29666 Filed 11-19-15; 8:45 am] BILLING CODE 3410-18-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Generic Clearance for the Special Nutrition Programs Quick Response Surveys (SNP QRS) AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a new collection to conduct short quick turnaround surveys of State and local agencies providing food, education and other services in the Child Nutrition and Supplemental Nutrition and Safety Programs administered at the federal level by the Food and Nutrition Service (FNS). These programs include the Special Supplemental Nutrition Program for Women, Infants, and Children, National School Lunch Program, School Breakfast Program, Special Milk Program, Fresh Fruit and Vegetable Program, Summer Food Service Program, the Child and Adult Care Food Program, and the Food Distribution Programs.

    DATES:

    Written comments must be received on or before January 19, 2016.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Written comments may be sent to Janis Johnston, Ph.D., Senior Technical Advisor, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Janis Johnston at 703-305-2576 or via email to [email protected] Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov and follow the online instructions for submitting comments electronically.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on the proposed project, contact Janis Johnston, Ph.D., Senior Technical Advisor, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.

    SUPPLEMENTARY INFORMATION:

    Title: Generic Clearance for the Special Nutrition Programs Quick Response Surveys (SNP QRS).

    Form Number: N/A.

    OMB Number: 0584-NEW.

    Expiration Date: Not Yet Determined.

    Type of Request: New Generic Collection.

    Abstract: The Food and Nutrition Service (FNS) intends to request approval from the Office of Management and Budget (OMB) for a generic clearance that will allow FNS to conduct short quick turnaround surveys of State, Local and Tribal agencies that receive food, funds and nutrition information through the Child Nutrition and Supplemental Nutrition and Safety Programs.

    These programs include the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), National School Lunch Program (NSLP), School Breakfast Program (SBP), Special Milk Program (SMP), Fresh Fruit and Vegetable Program (FFVP), Summer Food Service Program (SFSP), the Child and Adult Care Food Program (CACFP), and the Food Distribution Programs. WIC provides Federal grants to States for supplemental foods, health care referrals, and nutrition education for low-income pregnant, breastfeeding, and non-breastfeeding postpartum women, and to infants and children up to age five who are found to be at nutritional risk. NSLP is a federally assisted meal program operating in approximately 100,000 public and non‐profit private schools and residential childcare institutions. School districts that participate in NSLP receive cash subsidies and donated commodities from USDA for each meal they serve. SBP is also a federally assisted meal program operating in over 89,000 public and nonprofit private schools and residential childcare institutions. FFVP provides free fresh fruits and vegetables to students in participating elementary schools during the school day. The fresh fruits and vegetables are provided separately from the lunch or breakfast meal, in one or more areas of the school. When school is not in session, the SFSP provides meals to all children under 19 years of age at approved SFSP sites in areas with significant concentrations of low-income children. CACFP subsidizes nutritious meals and snacks served to children and adults in participating day care facilities. Meals also are provided to children in emergency shelters and eligible after school programs. The Food Distribution Programs include the Commodity Supplemental Food Program (CSFP), the Food Distribution Program on Indian Reservations (FDPIR), and The Emergency Food Assistance Program (TEFAP). CSFP provides nutritious USDA commodity foods and administrative funds to supplement the diets of low-income seniors at least 60 years of age.1 FDPIR provides USDA commodity foods to low-income households, including the elderly living on Indian reservations, and to Native American families residing in designated areas near reservations. TEFAP provides USDA commodity foods and administrative funds to States, which then provide the food to local agencies that they have selected, usually food banks, which then distribute the food to soup kitchens and food pantries that directly serve the public.

    1 CSFP originally included supplemental foods for pregnant, breastfeeding, and postpartum women, infants, and children, but changes in the program turned the focus towards low-income adults age 60 and older. Women, infants and children who were certified as of February 6, 2014, may continue receiving CSFP benefits until they are no longer eligible under the program rules that existed in 2014.

    The Healthy Hunger-Free Kids Act of 2010 (Pub. L. 111-296, Sec. 305) mandates programs under its authorization to cooperate with USDA program research and evaluation activities. Traditionally, FNS conducts program-specific large studies to collect information on numerous features of each program. Such studies often take several years to complete. The Quick Response Surveys provide a system for rapidly collecting current information on a specific feature or issue, and, therefore, enable FNS to administer the programs more effectively.

    Following standard OMB requirements, FNS will submit a change request to OMB for each data collection activity undertaken under this generic clearance. The respondents will be identified at the time that each change request is submitted to OMB. FNS will provide OMB with the instruments and supporting materials describing the research project and specific pre-testing activities.

    Affected Public: Respondent categories of affected public and the corresponding study participants will include: State, local and Tribal agencies. Respondents will include: (1) State Program Directors including WIC State agency directors, WIC State nutrition education and breastfeeding coordinators, directors of the Child Nutrition programs (NSLP/SBP, FFVP), directors of SFSP and CACFP, directors of State Distributing agencies (CSFP, TEFAP) and Indian Tribal Organization contacts for FDPIR; (2) Local-level program administrators including School Food Authorities, Local Education Agencies, Schools, Local WIC Agencies and Sites, SFSP Sponsors and Sites, TEFAP Eligible Recipient Agencies (ERAs), TEFAP Emergency Food Organizations (EFOs), and CACFP Sponsors and Providers.

    Number of Respondents: 21,023 annually.

    Frequency of Responses: 1.98 times per year.

    Average Burden Hours per Response: 0.28 hours.

    Total Annual Burden Hours: 11,597 hours. See the table below for estimated total annual burden for each type of respondent.

    Program Data collection activity Respondent Number of respondents (annual) Frequency of responses (annual) Annual responses Average
  • burden (hours per
  • response)
  • Annual burden hours Number of non-respondents (annual) Frequency of responses (annual) Annual responses (non-response) Average burden (hours per non-response) Annual burden hours (non-response) Total annual burden
    WIC Contact Info Request WIC State Agency 100 1 100 1 100 0 1 0 0.017 0 100 WIC Survey WIC State Agency 100 2 200 0.33 67 0 2 0 0.017 0 67 WIC Survey Local WIC Agency 1275 2 2550 0.33 850 310 2 620 0.017 11 861 WIC Survey Local WIC Site 2000 2 4000 0.33 1333 500 2 1000 0.017 17 1350 NSLP/SBP/FFVP Contact Info Request Child Nutrition State Agency 54 1 54 1 54 0 1 0 0.017 0 54 NSLP/SBP/FFVP Survey Child Nutrition State Agency 54 2 108 0.33 36 0 2 0 0.017 0 36 NSLP/SBP/FFVP Survey SFA 1400 2 2800 0.33 933 350 2 700 0.017 12 945 NSLP/SBP/FFVP Survey School 1500 1 1500 0.33 500 375 1 375 0.017 6 506 SFSP Contact Info Request State Agency 54 1 54 1 54 0 1 0 0.017 0 54 SFSP Survey State Agency 54 2 108 0.33 36 0 2 0 0.017 0 36 SFSP Survey Sponsors 1500 2 3000 0.33 1000 375 2 750 0.017 13 1013 SFSP Survey Sites 2100 2 4200 0.33 1400 525 2 1050 0.017 18 1418 CACFP Contact Info Request State Agency 54 1 54 1.00 54 0 1 0 0.017 0 54 CACFP Survey State Agency 54 2 108 0.33 36 0 2 0 0.017 0 36 CACFP Survey Sponsors 1750 3 5250 0.33 1750 438 3 1314 0.017 22 1772 CACFP Survey Sites 1950 2 3900 0.33 1300 488 2 976 0.017 16 1316 TEFAP Contact Info Request State Agency 54 1 54 1.00 54 0 1 0 0.017 0 54 TEFAP Survey State Agency 54 2 108 0.33 36 0 2 0 0.017 0 36 TEFAP Survey ERAs 300 2 600 0.33 200 75 2 150 0.017 3 203 TEFAP Survey EFOs 2100 2 4200 0.33 1400 525 2 1050 0.017 18 1418 FDPIR Contact Info Request State Agencies/ITOs 105 1 105 1 105 0 1 0 0.017 0 105 FDPIR Survey State Agencies/ITOs 105 2 210 0.33 70 0 2 0 0.017 0 70 FDPIR Survey Tribes 276 1 276 0.33 92 69 1 69 0.017 1.15 93 Total 16,993 1.97 33,539 0.51 11,460 4,030 2.00 8,054 0.017 137.15 11,597 Assumptions: 1. Each State agency will be asked to provide contact information for their respective local agencies. This request will be annual and take 1 hour per response 2. Two QRS for each State Agency per year for each program; 20 minutes per QRS (maximum). 3. Two QRS for each “primary” local agency (SFA, Sponsor, etc.) per year for each program; 20 minutes per QRS (maximum). 4. One QRS for each “secondary” local agency (sites, schools, etc.) per year for each program; 20 minutes per QRS (maximum).
    Dated: November 3, 2015. Yvette S. Jackson, Acting Administrator, Food and Nutrition Service.
    [FR Doc. 2015-29479 Filed 11-19-15; 8:45 am] BILLING CODE 3410-30-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Hawai'i State Advisory Committee for the Purpose To Discuss Its Reporting on Micronesian Immigration to Hawai'i AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Hawai'i State Advisory Committee (Committee) to the Commission will be held on Wednesday, December 9, 2015, for the purpose to discuss its reporting on Micronesian immigration to Hawai'i.

    This meeting is available to the public through the following toll-free call-in number: 888-329-8862, conference ID: 4866305. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments. The comments must be received in the Western Regional Office of the Commission by January 8, 2016. The address is Western Regional Office, U.S. Commission on Civil Rights, 300 N. Los Angeles Street, Suite 2010, Los Angeles, CA 90012. Persons wishing to email their comments may do so by sending them to Peter Minarik, Regional Director, Western Regional Office, at [email protected] Persons who desire additional information should contact the Western Regional Office, at (213) 894-3437, (or for hearing impaired TDD 913-551-1414), or by email to [email protected] Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at http://facadatabase.gov/committee/meetings.aspx?cid=263 and clicking on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Western Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Western Regional Office at the above email or street address.

    Agenda:

    2:00 p.m.—Committee discussion on Micronesian immigration to Hawai`i 3:00 p.m.—Public comment Adjournment
    DATES: