Federal Register Vol. 80, No.99,

Background

The EAR currently requires exporters to include a destination control statement, specified in § 758.6 (Destination control statement and other information furnished to consignees) of the EAR, on certain export control documents that accompany a shipment for most exports. The purpose of this statement is to alert other parties outside the United States that receive the item that the item is subject to the EAR, the item was exported in accordance with the EAR, and that diversion contrary to U.S. law is prohibited.

The ITAR, under § 123.9(b)(1), also includes the same type of destination control statement requirement, but specific to the ITAR context and with slightly different text than what is used under the EAR, although the purpose of the destination control statement requirements is the same under both sets of export control regulations. As a general principle under the Export Control Reform (ECR) implementation that is currently underway, wherever the ITAR and EAR have provisions that are intended to achieve the same purpose, the U.S. Government is making an effort to harmonize those provisions, except when circumstances exist that require that those provisions remain different. The destination control statement requirements under the ITAR and the EAR are an example of requirements that can and should be harmonized to reduce the burden on exporters, improve compliance, and ensure the regulations are achieving their intended purpose for use under the U.S. export control system, specifically under the transactions “subject to the ITAR” and “subject to the EAR.” The proposed harmonization changes to be made to the EAR are described below under the heading “Harmonization of destination control statement.”

This proposed rule would revise § 758.6 of the EAR to harmonize the destination control statement requirement text with § 123.9(b)(1) of the ITAR. This change would be made to facilitate implementation of the President's Export Control Reform Initiative, which has transferred thousands of formerly ITAR controlled defense article parts and components, along with other items, to the Commerce Control List in the EAR under the jurisdiction of the Department of Commerce.

This change in jurisdiction for many of the parts and components for military systems has increased incidence of exporters' shipping articles subject to both the ITAR and the EAR in the same shipment. Both regulations have a mandatory destination control statement that must be on the export control documents for shipments that include items subject to those regulations. This has caused confusion to exporters as to which statement to include on such mixed shipments, or whether to include both. Harmonizing these statements is intended to ease the regulatory burden on exporters.

This change is also being made to harmonize the two sets of regulations, the EAR and the ITAR, per the President's instructions. While the creation of a single export control list and licensing agency would require legislation, the President has directed BIS and the Directorate of Defense Trade Controls at the Department of State to undertake all available actions to prepare for consolidation as a single agency with a single set of regulations. Harmonization, to the extent possible, is one important step for preparing both regulators and the regulated public.

The harmonization of the destination control statement would include the following proposed changes to the EAR. The heading of § 758.6 of the EAR would remain the same. However, the provisions currently under paragraph (b) would be moved to a new paragraph (a)(2).

Further, regarding proposed new paragraph (a)(2), this paragraph would specify that the ECCN for each 9x515 or “600 series” item being exported must be included, which is the same requirement that is currently in paragraph (b), although it would be slightly shortened because the introductory text of paragraph (a) would specify some of the requirements that previously were included in paragraph (b), specifically the documents for which the 9x515 and “600 series” classification must be included on under this section. These documents are the same as those documents that the destination control statement would be included on, so this change would shorten and simplify this section by moving the text of paragraph (b) to paragraph (a)(2). This change would reduce the number of documents that this classification would need to be included on to conform with the destination control statement changes described below.

The proposed new introductory text paragraph (a) would specify that the exporter shall incorporate the information specified under paragraph (a)(1) (destination control statement) and (a)(2) (ECCN for each 9x515 or “600 series” item being exported) as an integral part of the commercial invoice and contractual documentation, when such contractual documentation exists. This proposed change would mean this section of the EAR would no longer include a requirement to include the destination control statement on the air waybill, bill of lading or other export control documents, and would instead focus the requirement on the two documents—the commercial invoice and contractual documentation. This rule proposes requiring the destination control statement on the commercial invoice and contractual documentation because these two documents are the most likely to travel with the item from its time of export from the United States to its ultimate destination and ultimate consignee. The intent of the destination control statement requirement is to ensure that the statement reaches the ultimate destination and ultimate consignee of the item, so requiring the destination control statement to be included on such documentation, when it exists, would be more likely to achieve the intended purpose of this provision. At the same time, the requirement would have the added benefit of reducing the number of documents on which exporters would be responsible for entering the destination statement. Consistent with the current destination control statement provisions, this rule would not require an EAR destination control statement for exports of EAR99 items or items exported under License Exception BAG or GFT. Any other export from the United States of any item on the CCL would require the destination statement as specified in paragraph (a)(1) and any export of a 9x515 or “600 series” ECCN would also need to be specified on those two documents as specified in paragraph (a)(2), when they exist.

The text of the harmonized destination control statement would be specified under revised paragraph (a)(1) of § 758.6 of the EAR. The new destination control statement would not include EAR-specific language, but rather would adopt language that would be equally applicable under the ITAR as well as the EAR. The first sentence of the statement would specify that “these items are controlled and authorized by the U.S. Government for export only to the specified country of ultimate destination for use by the end-user herein identified.” This first sentence is intended to alert the person outside the United States receiving the item that the item is subject to U.S. export laws and regulations and was authorized by the U.S. Government for export. In addition, the first sentence would specify that the U.S. Government only authorized the export to the specified country of ultimate destination and for use by the specified end-user. The new destination control statement would use the term authorized, but in the context of this EAR paragraph “authorized” would also include exports that were designated under No License Required (NLR).

The second sentence of the new harmonized destination control statement would focus on alerting the persons receiving the items that they may not be resold, transferred, or otherwise be disposed of, to any other country or to any person other than the authorized end-user or consignee(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations. Similar to the first sentence, this proposed second sentence adopts common language that can be used under the ITAR and the EAR. The application of this second sentence would be different under the ITAR and the EAR due to the different types of authorizations and other approvals in the respective regulations, as well as other differences, such as the de minimis requirements in the EAR, which is not provided for in the ITAR. But the advantage of the proposed text is that it would adopt a new harmonized destination control statement, while at the same time still being flexible enough to not impact other ITAR or EAR provisions that do warrant differentiation, such as the availability of de minimis provisions, which are available under the EAR, but because of statutory limitations in the Arms Export Control Act are not available under the ITAR.

Adoption of a new harmonized destination control statement would simplify export clearance requirements for exporters because they would not have to decide which destination control statement to include, especially for mixed shipments containing both ITAR and EAR items.

An exporter would still need to go through all of the steps to determine jurisdiction, classification, license requirements, and to obtain and use the proper authorization under the respective regulations, prior to moving on to the respective export clearance requirements under the ITAR or EAR. This is important to remember when evaluating these proposed changes because the regulations need to be reviewed and evaluated in the context in which they are intended to be applied, including the steps for determining the applicable export control requirements under the ITAR and the EAR. For those parties outside the United States that would be receiving items under this new destination control statement, although the new destination control statement is not ITAR or EAR specific, in the case of the USML the classification of the USML items would be required on the documentation. This classification would alert the parties that the items are subject to the ITAR. For military items under the EAR, because of the proposed requirement in paragraph (a)(2)(which is currently required under paragraph (b)) of § 758.6 of the EAR, anyone receiving a “600 series” military item or an ECCN 9x515 item would know that specific item was subject to the EAR because the classification information would also need to be included on the same documentation. For other EAR items, there would not be a requirement to include the classification information, although BIS does encourage the inclusion of that information as a good export compliance practice.

BIS proposes removing paragraph (c) of § 758.6 in this rule. Paragraph (c) was added recently (January 23, 2015, 80 FR 3463) and requires a special DCS for items controlled under ECCNs for crime control columns 1 and 3 or regional stability column 2 reasons when those items are destined to India. BIS proposes removing this requirement because the benefit for this requirement in paragraph (c) is outweighed by the added complexity to the EAR of including this country specific requirement. Therefore, consistent with the purpose of the retrospective regulatory review, BIS proposes removing paragraph (c).

As required by Executive Order (EO) 13563, BIS intends to review this rule's impact on the licensing burden on exporters. Commerce's full retrospective regulatory review plan is available at: http://open.commerce.gov/news/2011/08/23/plan-retrospective-analysis-existing-rules. Data are routinely collected on an ongoing basis, including through the comments to be submitted and through new information and results from Automated Export System data. These results and data have formed, and will continue to form, the basis for ongoing reviews of the rule and assessments of various aspects of the rule. As part of its plan for retrospective analysis under E.O. 13563, BIS intends to conduct periodic reviews of this rule and to modify, or repeal, aspects of this rule, as appropriate, and after public notice and comment. With regard to a number of aspects of this rule, assessments and refinements will be made on an ongoing basis. This is particularly the case with regard to possible modifications that will be considered based on public comments described above.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This regulation involves collections previously approved by the OMB under control numbers 0694-0122, “Licensing Responsibilities and Enforcement.” This rule does not alter any information collection requirements; therefore, total burden hours associated with the PRA and OMB control number 0694-0122 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration that this proposed rule, if promulgated, will not have a significant impact on a substantial number of small entities.

BIS does not collect data on the size of entities that apply for and are issued export licenses. Although BIS is unable to estimate the exact number of small entities that would be affected by this rule, it acknowledges that this rule would affect some unknown number.

This proposed rule is part of the Administration's Export Control Reform (ECR) Initiative. The destination control statement is an existing regulatory requirement under the EAR that exporters must use for export clearance purposes for most export transactions that are subject to the EAR.

The improvements to the export control system being implemented under ECR have resulted in reduced burdens on exporters, including small businesses, because the military items moved to the CCL now have the availability of more flexible EAR authorizations and availability of de minimis provisions among other advantages for exporters of items that have moved from the USML to the CCL. However, the existing destination control statement requirements impose an unnecessary burden on exporters of mixed shipments (shipments that include items subject to the EAR and ITAR). The current provisions create ambiguity for exporters on which destination control statement to use for such mixed shipments, which imposes unnecessary administrative costs and burdens on such exporters. The proposed changes in this rule would relieve this burden by adopting a harmonized destination control statement under the EAR. The corresponding Department of State proposed rule would adopt a harmonized destination control statement under the ITAR. This proposed harmonized destination control statement would result in time savings for exporters when they determine their export clearance requirements. These proposed changes would also reduce the economic impact on exporters, including small businesses, because it would make it easier for exporters to comply with this export clearance requirement under the EAR and the ITAR for specific transactions and would also simplify the export control clearance requirements associated with mixed transactions.

In practice, the greatest impact of this rule on small entities would likely be reduced administrative costs and reduced delay for exports of items. Therefore, this proposed rule would not cause any economic impact and would result in no additional compliance cost. On the contrary, this proposed rule would reduce compliance costs.

BIS is unable to determine the precise number of small entities that would be affected by this rule. Based on the facts and conclusions set forth above, BIS believes that any burdens imposed by this rule would be offset by the improvements made to harmonization of the destination control statement under the EAR and the ITAR. For these reasons, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted in final form, would not have a significant economic impact on a substantial number of small entities.

Accordingly, Part 758 of the Export Administration Regulations (15 CFR parts 730-774) is proposed to be amended as follows:

The Bureau of Industry and Security (BIS) in this advanced notice of proposed rulemaking (ANPR) requests comments for how the requirements under part 758 (Export clearance) of the Export Administration Regulations (EAR) (15 CFR parts 730-774) can be improved, including how the EAR export clearance provisions can be better harmonized with the export clearance requirements under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). This ANPR is part of Commerce's retrospective regulatory review and ongoing harmonization efforts being undertaken by Commerce and State as part of Export Control Reform (ECR) implementation. Commerce's full retrospective regulatory review plan is available at: http://open.commerce.gov/news/2011/08/23/commerce-plan-analysis-existing-rules.

The President's Export Control Reform (ECR) Initiative has transferred thousands of formerly ITAR controlled defense article parts and components, along with other items, to the Commerce Control List in the EAR under the jurisdiction of the Department of Commerce. The EAR includes part 758, which specifies requirements for export clearance under the EAR. As part of ECR implementation, BIS has made certain changes to part 758 to address the addition of the 9x515 and “600 series” ECCNs to the CCL (see the EAR final rules published on April 16, 2013 (78 FR 22660), May 13, 2014 (79 FR 27418) and November 12, 2014 (79 FR 67055)), along with other changes to the EAR to account for the 9x515 and “600 series” ECCNs being added to the EAR.

As a general principle, under the ECR implementation that is currently underway, wherever the ITAR and EAR have provisions that are intended to achieve the same purpose the U.S. Government is making an effort to harmonize those provisions, except when there is a reason why those provisions should remain different. The export clearance requirements under the ITAR and the EAR are an example of requirements that may for certain provisions be harmonized to reduce the burden on exporters, improve compliance with the export clearance requirements, and ensure the export clearance requirements are achieving their intended purpose for use under the U.S. export control system, specifically under the transactions “subject to the ITAR” and “subject to the EAR.”

BIS is considering further revisions to part 758 of the EAR as part of Commerce's retrospective regulatory review and ongoing harmonization efforts being undertaken by Commerce and State as part of ECR implementation. As part of this review effort for how part 758 can be improved to make these provisions more effective and to assist BIS in developing regulatory changes to improve these provisions of the EAR, BIS requests comments on these potential future changes described under paragraphs (A) through (E). Export control documents in paragraphs (A) through (C) include the commercial invoice and contractual documentation.

A. Require ECCNs on export control documents. The ECCN for all 9x515 and “600 series” items is currently required to be identified on the export control documents, along with the destination control statement. BIS is considering requiring that the ECCN be identified for all items on the Commerce Control List. This would not include items that are designated EAR99.

B. Require identification of country of ultimate destination on export control documents. BIS is considering requiring that the country of ultimate destination be identified on the export control documents. This requirement would mirror the requirement in the ITAR and BIS believes that this would only impact a small number of exports where additional actions would be needed by exporters, because in most cases, the export control documents already identify the country of ultimate destination.

C. Require license number or export authorization symbol on export control documents. BIS is also considering requiring that the license number or export authorization symbol be identified on export control documents. This proposed revision would require that the license number, license exception code, or no license required designation be entered on the export control documents. BIS specifically requests comments on the application of this requirement to mixed authorization and mixed jurisdiction shipments.

D. Require AES filing for exports to Canada for items controlled for NS, MT, NP and CB. BIS seeks comments on the potential impact and feasibility of changing section 758.1 under paragraph (b) to require EEI filing in the AES for all exports to Canada of items controlled for National Security (NS), Missile Technology (MT), Nuclear Nonproliferation (NP), and Chemical & Biological Weapons (CB) reasons, regardless of license requirements (meaning regardless of whether the export was authorized under a license, license exception, or designated as no license required). Because of the AES filing exemption for non-licensed items to Canada, BIS currently has little visibility into the movement of these items into Canada, except for exports to Canada that involve a licensed item (see paragraph (b)(2) of section 758.1), a 9x515 or “600 series” item (see paragraph (b)(3) of section 758.1) or are to be transhipped to a third country (see paragraph (b)(6) of section 758.1) which do require EEI filing in the AES. Therefore, BIS is seeking information that would help us determine:

E. Other suggestions for improving and harmonizing export clearance requirements. Any other suggestions for improving the EAR export clearance requirements, including suggestions where additional harmonization should be considered for the export clearance requirements under the EAR and ITAR to ease the regulatory burden on exporters and make the provisions more effective would be helpful to receive in response to this ANPR. These suggestions can apply to any export clearance provision under part 758 of the EAR or any other EAR provisions that relate to export clearance requirements.

Comments should be submitted to BIS as described in the ADDRESSES section of this ANPR by July 6, 2015. BIS will consider all comments submitted in response to this ANPR that are received before the close of the comment period. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. BIS will not accept public comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. BIS will return such comments and materials to the persons submitting the comments and will not consider them. All public comments in response to this ANPR must be in writing and will be a matter of public record, and will be available for public inspection and copying on the BIS Freedom of Information Act (FOIA) Reading Room at http://efoia.bis.doc.gov/index.php/electronic-foia/index-of-documents.

I. Background A. Safety Standard for Architectural Glazing Materials

On January 6, 1977 (42 FR 1427), as amended on June 20, 1977 (42 FR 31164), the Commission issued the Safety Standard for Architectural Glazing Materials under the Consumer Product Safety Act (“CPSA”) to reduce or eliminate risks of injuries associated with walking, running, or falling through or against glazing materials (“CPSC standard”). The standard applies to glazing materials used or intended for use in any of the following architectural products:

(1) Storm doors or combination doors;

(2) Doors (both exterior and interior);

(3) Bathtub doors and enclosures;

(4) Shower doors and enclosures; and

(5) Sliding glass doors (patio-type).

The standard applies to glazing materials and architectural products incorporating glazing materials that are produced or distributed for sale to or for the personal use, consumption or enjoyment of consumers in or around a permanent or temporary household or residence or in recreational, school, public, or other buildings or parts thereof. The standard was codified at 16 CFR part 1201.

The standard exempts the following products, materials, and uses:

(1) Wired glass used in doors or other assemblies to retard the passage of fire where required by federal, state, local, or municipal fire ordinance;

(2) Louvers of jalousie doors;

(3) Openings of doors which a 3 inch diameter sphere is unable to pass;

(4) Carved glass (as defined in section 1201.2(a)(36)), dalle glass (as defined in § 1201.2(a)(37)), or leaded glass (as defined in section 1201.2(a)(14)), which is used in doors and glazed panels (as defined in sections 1201.2(a)(7) and (a)(10)) if the glazing material meets all of the following criteria:

(i) The coloring, texturing, or other design qualities or components of the glazing material cannot be removed without destroying the material; and

(ii) The primary purpose of such glazing is decorative or artistic; and

(iii) The glazing material is conspicuously colored or textured so as to be plainly visible and plainly identifiable as aesthetic or decorative rather than functional (other than for the purpose of admitting or controlling admission of light components or heat and cold); and

(iv) The glazing material, or assembly into which it is incorporated, is divided into segments by conspicuous and plainly visible lines.

(5) Glazing materials used as curved glazed panels in revolving doors; and

(6) Commercial refrigerator cabinet glazed doors. 16 CFR 1201.1(c).

On September 27, 1978, (43 FR 43704), the Commission amended the standard to clarify the definitions, description of test apparatus, and test procedures in the standard. The Commission stated that under the CPSA, when an amendment to a consumer product safety rule involves a material change, the procedures in section 7 and 9 apply. 15 U.S.C. 2058(h). The Commission determined, however, that the amendments to the definitions, test apparatus, and test procedures did not involve a material change to the standard because they did not affect the basic purpose and provisions of the standard. (42 FR 53798, 53799 (Oct. 3, 1977); 43 FR 43704 (Sept. 27, 1978.) Accordingly, the Commission did not apply the provisions of sections 7 and 9 of the CPSA. However, the Commission provided notice and comment under the informal rulemaking procedures of the Administrative Procedure Act (“APA”), 5 U.S.C. 553, before issuing a final rule.

The Commission subsequently revoked portions of the standard that prescribed requirements for “glazed panels” (45 FR 67383, August 28, 1980); an accelerated environmental durability test for plastic glazing materials intended for outdoor exposure (45 66002, October 6, 1980); and a modulus of elasticity test, a harness test, and an indoor aging test applicable to plastic glazing materials (47 FR 27853, June 28, 1982). 16 CFR 1201.1(d) n.1. Tempered glass, wired glass, and annealed glass are also exempt from the accelerated environmental durability tests. 16 CFR 1201.4(a)(2).

The testing procedures currently set forth in 16 CFR 1201.4 require impact tests and accelerated environment durability tests for non-exempted materials, which are intended to determine if glazing materials used in these architectural products meet safety requirements designed to reduce or eliminate unreasonable risks of death or serious injury to consumers when glazing material is broken by human contact. The testing procedures further describe the testing equipment and apparatus required to be used, and the test result interpretation methodology to be employed in determining if the glazing materials being tested meet the safety requirements of the standard.

On June 26, 2012, the Commission received a petition from the Safety Glazing Certification Council (“SGCC” or “petitioner”), requesting that the Commission initiate rulemaking to replace the testing procedures for glazing materials in certain architectural products, as set forth in 16 CFR 1201.4, with the testing procedures contained in the voluntary standard, ANSI Z97.1-2009ε 2, American National Standard for Safety Glazing Materials Used in Buildings—Safety Performance Specifications and Methods of Test (the ANSI standard). SGCC stated that consumers and the glazing industry would be better served if the test procedures for glazing materials used in architectural products set forth in 16 CFR 1201.4 were replaced with the ANSI standard test procedures because the ANSI test procedures are more efficient and modern. The petitioner asserts that the testing procedures set forth in section 1201.4 were promulgated in 1977, and they have not been updated or clarified, as necessary. The petitioner stated that the ANSI standard for glazing materials has been updated periodically (in 1984, 1994, 2004, and 2009), unlike the CPSC standard, and that these updates include modifications in testing equipment and procedures. Petitioner asserted that the absence of updates to the CPSC standard during a period in which the ANSI standard was revised four times has resulted in different testing methods and qualifying procedures that have created confusion in the industry regarding which test methodology must be used in what circumstance. Petitioner claimed that the existence of overlapping but divergent CPSC and voluntary standards has resulted in manufacturers paying for duplicative testing.

On August 30, 2012, notice of the petition was published in the Federal Register (77 FR 52625). The Commission received five comments, all supporting the petitioner's request to amend the existing test procedures with the ANSI standard. The petition was referred to the Commission's staff for evaluation. On April 3, 2013, CPSC staff submitted a briefing package to the Commission evaluating the petition, including the feasibility of integrating the test procedures of the ANSI standard into the CPSC standard.1 On April 9, 2013, the Commission voted to grant the petition.

On May 6, 2015, CPSC staff submitted a briefing package to the Commission recommending that the Commission issue a proposed amendment to 16 CFR 1201.4 that would replace the testing procedures set forth in the CPSC mandatory standard for glazing materials in certain architectural products, with the testing procedures contained in the voluntary standard, ANSI Z97.1-2009ε 2. The staff's briefing package is available on the CPSC's Web site at: http://www.cpsc.gov/Global/Newsroom/FOIA/CommissionBriefingPackages/2015/Proposed-Rule-to-Amend-the-Safety-Standard-for-Architectural-Glazing-Material.pdf.

The proposed amendment to the CPSC standard would clarify certain test procedures specified in the mandatory standard. Under section 9 (h) of the CPSA, if an amendment of a consumer product safety rule “involves a material change,” 15 U.S.C. 2058(h), the Commission must make certain findings, including a finding that the amendment is “reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product”; the expected benefits of the amended rule “bear a reasonable relationship to its costs”; and the amended rule imposes “the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated.” Id. §§ 2056(a); 2058(a)-(g). If the amendment does not constitute “a material change” for purposes of section 9(h) of the CPSA, the Commission is not required to make the findings that are otherwise required for the amendment of a consumer product safety rule.

When the Commission previously amended the CPSC standard to clarify the definitions and the description of test apparatus and test procedures in the architectural glazing standard, the Commission determined that the amendments to the definitions, test apparatus, and test procedures did not involve a material change to the standard because the changes did not affect the basic purpose and provisions of the standard. (43 FR 43704, September 27, 1978). However, the Commission did not elaborate on what changes might affect the basic purpose of a standard.

To assess what types of changes may result in a material change for the proposed amendment, the Commission looked to other statutory language for guidance. The Consumer Product Safety Improvement Act (“CPSIA”) directed the Commission to establish protocols and standards to test children's products for testing and certification purposes “when there has been a material change in the product's design or manufacturing process.” 15 U.S.C. 2063(d)(2)(B). The Commission's regulation implementing this provision defines “material change” as: “any change in the product's design, manufacturing process or sourcing of component parts that . . . could affect a product's ability to comply with the applicable rules, bans, standards or regulations.” 16 CFR 1107.2. This definition contemplates that certain changes would not be considered “material” if changes are not significant enough to potentially impact the product's ability to comply with applicable standards and regulations.

The basis for the Commission's findings in promulgating the standard for architectural glazing was that unreasonable risks of injury are associated with architectural glazing materials used in certain architectural glazing products. In assessing the question of whether unreasonable risks of injury or injury potential are associated with architectural glazing materials, the Commission balanced the degree, nature, and frequency of injury against the potential effect of the standard on the ability of architectural glazing materials to meet the need of the public and the effect of the standard on the cost, utility, and availability of architectural glazing materials to meet that need. 16 CFR 1201.1(d)(5).

Consistent with this prior analysis, for the proposed amendment, the Commission has reviewed whether the proposed amendment would alter the original basic purpose of the rule addressing an unreasonable risk of injury associated with architectural glazing materials, including whether the proposed amendment would have an important or significant impact on the safety of consumers or on the burdens imposed on the regulated industry. In particular, to assess whether the basic purpose and provisions of the standard would be altered, the Commission compared the existing CPSC test procedures in the mandatory standard with the ANSI test procedures. The basic purpose of 16 CFR 1201.4 is to provide test procedures that will assess the safety of architectural glazing materials. The mandatory standard was promulgated to reduce or eliminate risks of injuries associated with walking, running, or falling through or against glazing materials in storm doors, doors (both exterior and interior), shower and bathtub doors and enclosures, and sliding or patio-type doors. The adoption of the ANSI test procedures will not alter that purpose. As discussed in section II below, the proposed amended testing procedures will clarify the existing test procedures and update references to current test methods.

In addition, the Commission reviewed whether there would be an important or significant impact on the safety of consumers. As discussed in section IV below, CSPC staff's review showed that almost all of the samples tested both to 16 CFR 1201.1 and the ANSI standard passed both standards; only a small number of samples tested (5 out of more than 3,500) failed the CPSC standard testing, but passed when tested to the voluntary standard. Thus, the proposed amendment is unlikely to have an important or significant impact on the safety of consumers because testing to either standard provided consistent and comparable test results.

The Commission also reviewed whether there would be any important or significant impact on the burdens imposed on the regulated industry. As discussed in section V below, CPSC staff's review showed existing widespread compliance with the ANSI standard. Therefore, the data did not show that adoption of the ANSI test procedures would impose any additional burdens on the regulated industry. In fact, a slight reduction in the burdens imposed on the regulated industry is likely because the proposed amendment would reduce confusion in the industry regarding applicable test procedures. Moreover, adoption of the ANSI test procedures likely will make testing of the architectural glazing materials more efficient, less costly, and reduce redundant testing for manufacturers who currently comply with the ANSI standard, as well as the CPSC mandatory standard.

Accordingly, as provided under section 9(h) of the CPSA, the Commission believes that the proposed amendment replacing the test procedures specified in the CPSC mandatory standard with the test procedures in the ANSI standard would not involve a material change requiring the procedures under sections 7 and 9 of the CPSA. However, because the proposed amendment would make revisions to an existing standard, the Commission is providing notice and comment under the informal rulemaking procedures of the APA, 5 U.S.C. 553, before issuing a final rule.

The proposed amendment would replace the test procedures in the CPSC standard at 16 CFR 1201.4 with the ANSI test procedures. The ANSI standard covers certain products, materials, and uses that are exempt from the CPSC standard. The proposed amendment would not change the scope of products, materials, or uses covered by the CPSC standard.

The CPSC standard currently exempts: Wired glass used in doors or other assemblies to retard the passage of fire where required by federal, state, local, or municipal fire ordinance; louvers of jalousie doors; openings of doors which a 3 inch diameter sphere is unable to pass; carved glass, dalle glass, or leaded glass; glazing materials used as curved glazed panels in revolving doors; and commercial refrigerator cabinet glazed doors. 16 CFR 1201.1(c). In addition, the test procedures at 16 CFR 1201.4(a)(2) do not provide for accelerated environmental durability testing of plastic glazing materials because those tests were removed from 16 CFR part 1201 by the Commission in the early 1980s. (45 FR 66002, October 6, 1980). Moreover, tempered glass, wired glass, and annealed glass are not required to be subjected to the accelerated environmental durability tests. Id. at § 1201.4(a)(2).

In contrast, the ANSI standard does not exempt any specific glazing materials. The ANSI testing procedures include testing for materials and products that are not covered by the CPSC standard: Plastic glazing and fire-resistant wire-glass. Accordingly, the ANSI standard includes tests for certain items, such as fire-resistant wired glass and accelerated environmental durability testing for plastic glazing, which are otherwise exempt from the CPSC standard. Although the ANSI standard does not specifically exempt tempered glass, wired glass, and annealed glass from the accelerated environmental durability tests, the ANSI standard only requires plastic glazing and organic coated glass to be subjected to the accelerated environmental durability test. Tests in the ANSI standard that apply to materials, products, or uses that are exempt from the CPSC standard would not be included in the proposed amendment.

In the proposed amendment, the Commission does not propose to alter the scope or exemptions provided in the CPSC standard; materials that are exempt from 16 CFR part 1201 would continue to be exempt, and those exempt materials would not be subject to the ANSI test procedures. The proposed amendment, however, would adopt the ANSI standard for the remaining test procedures in the CPSC standard.

The proposed amendment replacing the CPSC test procedures in 16 CFR 1201.4 with the ANSI test procedures will clarify the existing test procedures and update references to current test methods.

Currently, 16 CFR 1201.4(b)(3)(ii) refers to obsolete ASTM standard practices and equipment, which have been replaced in the ANSI standard (5.4.1.1, 5.4.1.2). For example, the simulated weathering test in the CPSC standard references two outdated ASTM standards:

• ASTM G26-70—Practice for Operating Light Exposure Apparatus (Xenon-Arc Type) With and Without Water for Exposure of Nonmetallic Materials, was withdrawn by ASTM in 2000, and replaced with ASTM G155—Practice for Operating Xenon Arc Light Apparatus for Exposure of Non-Metallic Materials.

• The obsolete 1970 edition of ASTM D2565-70—Practice for Xenon-Arc Exposure of Plastics Intended for Outdoor Applications, has been revised over the years; its current edition is ASTM D2565-99 (2008).

For manufacturers who test to both the 16 CFR 1201.4 and the ANSI standard, using these withdrawn and obsolete versions of current standards can result in increased costs and duplication of testing if manufacturers are required to test to the earlier versions of these editions to meet the regulation and also test to the current versions of these standard practice test procedures to meet the voluntary standard. Furthermore, the old standards referenced in 16 CFR 1201.4(b)(3)(ii) require obsolete test equipment that is currently not manufactured. By replacing the CPSC testing procedures with the updated references in the ANSI standard, the proposed amendment would allow the use of currently manufactured test equipment rather than the obsolete and outdated equipment referenced in section 1201.4(b)(3)(ii). The updated references would not involve a material change to the standard because changing these references to reflect current test methods would not alter the basic purpose of the CPSC standard.

Although ANSI Z97.1-2009ε 2 has been modified several times since the CPSC standard was published, the impact tests of 16 CFR 1201.4(b) and ANSI Z97.1-2009ε 2 (5) are similar. The CPSC standard shows drawings of a Glass Impact Test Structure (Figures 1-5) that is similar to the drawing of the Impact Test Frame drawing in ANSI Z97.1-2009ε 2 (Figures 1-7), except for differences in the descriptive terms used for naming the parts of the test apparatus, i.e., Main Frame and Sub-Frame in ANSI Z97.1-2009,ε 2 versus 16 CFR 1201.4's Impact Test Structure and Test Specimen Mounting Frame. ANSI Z97.1-2009ε 2 provides enlarged drawings of the Impact Test Frame. Overall, the Glass Impact Test Structure of 16 CFR 1201.4 appears to be of similar construction to the ANSI Z97.1-2009ε 2 Impact Test Frame, except that ANSI Z97.1-2009ε 2 provides clearer assembly drawings.

The ANSI drawings are larger and clearer to use, which would benefit manufacturers. In addition, if the ANSI impact test procedures were adopted, manufacturers who currently test to both the CPSC standard and ANSI standard could avoid duplicative testing because the manufacturers would not need to conduct impact tests for both the CPSC standard and the ANSI standard. The proposed amendment adopting the ANSI test procedures would not involve a material change to the standard because the ANSI impact tests are comparable to the CPSC impact tests, but clearer construction drawings are provided in the ANSI standard.

The CPSC standard provides two impact categories, 150 foot-pound impact test (Category I) and 400 foot-pound impact test (Category II). 16 CFR 1201.4(d). The ANSI standard provides three impact categories (5.1.2.1): A 400 foot-pound impact test (Class A); a 150 foot-pound impact test (Class B); and a 100 foot-pound impact test (Class C) for fire-resistant wired glass. The proposed amendment would not result in a material change because the impact categories in the CPSC standard would remain the same and still include the 150 foot-pound impact test and 400 foot-pound impact test. The 100 foot-pound test in the ANSI standard only applies to fire-resistant wired glass, a product that is exempt from the CPSC standard. The Commission is not proposing to change the scope of the materials covered by the CPSC standard. Thus, manufacturers would not be required to follow the ANSI standard 100 foot-pound impact test (Class C) for fire-resistant wired glass because these materials remain exempt under the proposed amendment.

Both 16 CFR 1201.4(e)(1) and ANSI Z97.1-2009ε 2 (5.1.4 (1)) permit using a 3-inch diameter steel sphere for evaluating any hole remaining in an impact tested specimen after the impact test for flat specimens. However, the standards differ because the CPSC standard requires that the specimen be evaluated in a horizontal position after the vertical test is completed. ANSI Z97.1-2009ε 2 requires that the impacted specimen remain in the vertical, upright as-impact tested position while being evaluated with the 3-inch diameter steel sphere. Adopting the ANSI test procedure does not constitute a material change in the test method because the basic purpose of the requirement is not altered; rather, the test procedure is clarified. Leaving the specimen in the vertical position makes it less likely that gravity or human error will contribute to the potential failure of a product.

In addition, the requirements for size classification of impact specimens at 16 CFR 1201.4(c)(2) does not specify the number of specimens to be impact tested; rather, the standard requires only that the largest size and each thickness offered by the manufacturer are to be tested. However, ANSI Z97.1-2009ε 2 (4.4) requires that four specimens of each size and thickness are to be impact tested. Specifying the number of specimens to be tested would not involve a material change to the standard because the proposed amendment would not alter the basic purpose of the requirement; rather, the ANSI test method would clarify the number of specimens to be tested, which would help reduce confusion on the number of specimens to be tested and provide a clearer test for manufacturers.

ANSI Z97.1-2009ε 2 (5.2) has more specific procedures for evaluating tempered glass specimens than 16 CFR 1201.4(d). The ANSI standard specifies a procedure to evaluate tempered glass specimens that did not fracture as a result of the 400 foot-pound Class A impact test. In the CPSC standard, fragmented pieces of glass were evaluated, by size and weight, only if the specimen failed the impact test. The ANSI standard requires that all samples that have been impacted be subjected to a “Center Punch Fragmentation Test,” which requires purposely fracturing the unbroken impact-tested tempered glass specimen with a center punch and hammer. In both cases, the fractured pieces of the tempered glass specimen are evaluated by weighing the 10 largest fragments. A tempered glass specimen is considered to conform to both the CPSC standard and ANSI Z97.1-2009ε 2 as acceptable for use as safety glazing, if the 10 largest fragments weigh no more than the equivalent of 10 in2 of the original unbroken specimen; however, ANSI Z97.1-2009ε 2 requires that the pieces selected be no longer than 4 inches in length. Adopting the ANSI test procedures for evaluating tempered glass would not alter the basic purpose of the CPSC standard; rather, the ANSI Center Punch Fragmentation Test provides a more accurate and efficient way of measuring potential failures, which would further clarify the impact test for tempered glass for manufacturers.

There are other testing procedures in the CPSC standard and the ANSI standard that are similar. Both standards have a boil test for laminated glass and similar requirements for testing for failure (1201.4(c)(3)(i); ANSI Z97.1-2009ε 2 (5.3)). Both standards provide for accelerated environmental durability testing for organic coated glass (1201.4(d)(2)(B); ANSI Z97.1-2009ε 2 (5.4)); adhesion tests for organic coated glass (1201.4(e)(ii)(B)(1); ANSI Z97.1-2009ε 2 (5.4.2.2.1)); tensile strength tests for organic coated glass (1201.4(e)(ii)(B)(2); ANSI Z97.1-2009ε 2 (5.4.2.2.2)); and impact testing of organic coated glazing materials for indoor service (1201.4(c)(3)(iii); ANSI Z97.1-2009ε 2 (5.4.3)). The similarities in the testing procedures between the two standards further support the adoption of the proposed ANSI testing procedures. The proposed amendment would not result in a material change because the tests are comparable; however, manufacturers who currently test to both the CPSC standard and ANSI standard could reduce confusion regarding which standard to follow, and avoid duplicative testing, if the Commission specified the use of the ANSI test procedures.

CPSC Staff reviewed the Injury and Potential Injury Incident (IPII), In-Depth Investigation IDI), and Death Certificate databases for injuries reported to the Commission and identified 430 incidents for the period from 1978 to 2014. Since 1978, 98 architectural glazing-related fatalities were reported to the CPSC. Shower doors and enclosures accounted for 64 percent of the injuries and deaths. Glass or partial glass storm doors accounted for 15 percent of the reported injuries and deaths, and “sliding glass” doors or doors only specified as “glass doors” accounted for 8 percent each of the reported injuries and deaths. At least two of the incidents involved wired glass, which is exempt from the CPSC standard.

In addition to reviewing the CPSC databases, CSPC staff also identified 9,942 cases that occurred during the period from 1991 through 2013, which involved injuries from architectural glazing products treated in the emergency departments of CPSC's National Electronic Injury Surveillance System (“NEISS”) member hospitals. Staff determined that due to design changes within NEISS, estimates made before 1991 are not comparable. Based on these cases, staff computed a national estimate of 420,000 emergency department-treated injuries, with a coefficient of variance of 0.0648 percent. The 95 percent confidence interval for this estimate is 366,000 to 473,000. Ninety-six percent of the cases during the 1992 to 2013 period, which were reviewed by staff, involved lacerations. During this 20-year time period, the estimated number of emergency department-treated architectural glazing breakage incidents has declined.

Injury severity ranged from minor lacerations, abrasions, and contusions, to more severe laceration, puncture, and penetration injuries. The body part most often involved in these incidents was the arm (46.8%), followed by hand (30.1%), and head (8.6%). The incidents captured in NEISS suggest that the most severe injuries (i.e., injuries that necessitated transfer to another hospital or admission to the hospital where emergency room treatment was provided) represented approximately 5 percent of the total. Lacerations are the most common hazard associated with glazing failures, and can range from superficial to extreme in their severity. Severe injuries often require surgery and rehabilitation, which may result in the loss of motion, loss of sensation, or permanent disfigurement.

Although many incident reports lacked detailed information about the injury, a review of the incidents from the CPSC databases suggests that many of the injuries and deaths resulted from products that did not meet the CPSC standard; the deep laceration injuries and puncture and penetration wounds reported in these incidents, some of which were fatal, most likely resulted from large glass fragments from broken pieces of non-safety glass.

To assess the potential effect of the proposed amendment on consumer safety, in January 2014, CPSC staff collected information on sample data from 16 SGCC-approved testing laboratories to assess the relative compliance of architectural glazing companies with 16 CFR 1201.4 and the ANSI standard. The 16 laboratories represented approximately 70 percent of the third party testing laboratories responsible for testing architectural glazing products. Specifically, the companies were asked if specimens that pass 16 CFR 1201.4 were ever noncompliant with ANSI standard, and if so, the frequency of such occurrence. Ninety percent of all responses stated that there had never been an instance in which a specimen that complied with the ANSI standard did not also comply with the requirements of 16 CFR 1201.4.

These data indicate that replacing the CPSC standard testing procedures with the testing procedures in the ANSI standard would not have an important or significant impact on consumer safety because only a small number of samples tested (5 out of more than 3,500) failed the CPSC standard testing, but passed when tested to the voluntary standard. Accordingly, the data show that testing to either standard provides consistent testing results, and adopting the ANSI standard would not significantly affect the testing results.

As discussed in section II, replacing the test procedures in 16 CFR 1201.4 with the ANSI standard test procedures will make product testing more efficient and avoid potentially redundant tests for manufacturers who currently comply with the voluntary and the CPSC standard. Moreover, there is already substantial compliance with the ANSI standard.

CPSC staff's review showed that there are about 250 manufacturers of architectural glazing materials and roughly 2,500 glazing material products certified annually. SGCC manages the certification testing for about 70 percent of the market. The remaining manufacturers conduct in-house testing or they contract testing through labs outside of SGCC. All but a small proportion of these manufacturers currently test to both the CPSC mandatory standard and the ANSI voluntary standard.

Most manufacturers in the architectural glazing industry certify their products to ANSI Z97.1-2009ε 2 and 16 CFR part 1201. Of the products certified through SGCC, 99 percent or 1,855 products were certified to both ANSI Z97.1-2009ε 2 and 16 CFR part 1201. Only 12 products (0.6%) were certified solely to ANSI Z97.1-2009ε 2; seven products (0.4%) were certified solely to 16 CFR part 1201. CPSC staff's review of manufacturers from the Glass Association of North America (“GANA”), which consists of members that both do and do not participate in the SGCC program, indicated that of the 35 manufacturers that test their products outside of SGCC and provided certification information, 32 manufacturers certified to both standards, and only three manufacturers listed certification to just 16 CFR part 1201.

Based on CPSC staff's review, if the ANSI standard test procedures were adopted, the proposed amendment would not have an important or significant impact on the burdens imposed on the regulated industry. Almost all of the manufacturers already certify to the ANSI standard. Manufacturers currently testing to both the ANSI standard and the CPSC standard will probably experience a decrease in testing and certification costs because they would only need to follow one testing protocol to be certified to both standards. This reduces the number of samples that a manufacturer needs to fabricate for testing, which will directly reduce certification costs. In addition, for manufacturers who contract out their testing, shipping costs will be reduced, due to the smaller number of samples shipped. SGCC estimates that its customers each would save an average of $1,284 per product tested annually. Thus, the proposed amendment likely would lessen the impact on the burdens imposed on industry to meet the requirements of the CPSC standard.

The Regulatory Flexibility Act (“RFA”) requires that proposed rules be reviewed for the potential economic impact on small entities, including small businesses. 5 U.S.C. 601-612. Section 603 of the RFA requires agencies to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (“IRFA”), describing the impact of the proposed rule on small entities and identifying impact-reducing alternatives. The requirement to prepare an IRFA does not apply if the agency certifies that the rulemaking will not have a significant economic impact on a substantial number of small entities. Id. 605. Because the Commission expects that the economic effect on all entities will be minimal, the Commission certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.

The U.S. Small Business Administration (“SBA”) guidelines categorize manufacturers of flat glass as “small” if they have fewer than 1,000 employees; and they categorize manufacturers of products made with purchased glass as “small” if they have fewer than 500 employees. In cases where firms fall under both categories, the size standard for flat glass manufacturers is applied to classify the firm. Based upon these criteria, the number of small manufacturers and importers identified in the architectural glazing market is 104, including 10 firms of undetermined size. Of the 104 small manufacturers known to produce architectural glass, 84 certify their products through the SGCC and 20 certify their products through other in-house testing, or they contract the testing.

The expected impact of the proposed rule is to reduce the costs of certification for most manufacturers. The 102 of 104 small manufacturers currently testing to both the ANSI standard and the CPSC standard also will probably experience a decrease in testing and certification costs because they would only need to follow one testing protocol to be certified to both standards. This reduces the number of samples a manufacturer needs to fabricate for testing, thus directly reducing certification costs. In addition, for manufacturers who contract out their testing, shipping costs will be reduced, due to the smaller number of samples shipped.

SGCC estimates that its customers would each save an average of $1,284 per product tested annually. Two manufacturers outside SGCC's membership who currently test to both standards will also likely see cost savings. However, if these two manufacturers currently conduct their testing in-house, they do not incur the costs of shipping samples to SGCC; thus, the cost savings will be limited to the savings from fabricating fewer testing samples.

One of the two small domestic manufacturers that does not certify to both standards is listed under SGCC's certified products directory and tests products only to 16 CFR part 1201. SGCC's fees are structured so that testing to ANSI Z97.1-2009ε 2 and 16 CFR part 1201 currently cost the manufacturer the same. Thus, this manufacturer should not experience an increase in testing fees from aligning 16 CFR 1201.4's testing protocol with ANSI Z97.1-2009 2. However, there will probably be an increase in cost associated with the shipping and fabrication of the higher number of CPSC samples required to be tested under ANSI Z97.1-2009ε 2.

Of those small manufacturers identified outside of SGCC, only one was found to have products tested only to 16 CFR 1201.4, according to certification information readily available. This small manufacturer contracts out to a lab for certification and the lab tests to both standards. Therefore, this small manufacturer should not incur any significant increase due to testing fees. However, this manufacturer could experience some increase in shipping and fabricating costs, as identified above.

In summary, 102 of 104 small architectural glazing producers (or about 98 percent of the small producers) would experience some slight cost savings, or no impact, due to the proposed amendment. Consequently, the Commission certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the RFA.

Generally, the Commission's regulations are considered to have little or no potential for affecting the human environment, and environmental assessments and impact statements are not usually required. See 16 CFR 1021.5(a). The proposed rule is not expected to have an adverse impact on the environment and is considered to fall within the “categorical exclusion” for the purposes of the National Environmental Policy Act. 16 CFR 1021.5(c). However, the proposed rule will decrease the number of samples that most manufacturers are required to test, and will likely lead to a small, beneficial effect on the environment because waste produced by the manufacture of excess samples, and the transport of those samples, will be reduced.

Currently, there is no paperwork collection burden associated with 16 CFR part 1201, and the proposed amendment to the regulation does not create any new paperwork collection burdens. Thus, no paperwork burden is associated with the proposed rule, and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) does not apply.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no state or political subdivision of a state may either establish or continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product, which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the federal standard. Section 9(h) of the CPSA provides that the Commission may by rule amend any consumer product safety rule. Therefore, the preemption provision of section 26(a) of the CPSA would apply to any rule issued under section 9(h).

The APA generally requires that the effective date of a rule be at least 30 days after publication of a final rule. 5 U.S.C. 553(d). Accordingly, if a final rule is issued, the amendment will go into effect 30 days after publication of a final rule.

The Commission proposes to incorporate by reference ANSI Z97.1-2009ε 2. The Office of the Federal Register (“OFR”) has regulations concerning incorporation by reference. 1 CFR part 51. The OFR recently revised these regulations to require that, for a proposed rule, agencies must discuss in the preamble to the NPR, ways that the materials that the agency proposes to incorporate by reference are reasonably available to interested persons, or how the agency worked to make the materials reasonably available. In addition, the preamble to the proposed rule must summarize the material. 1 CFR 51.5(a).

In accordance with the OFR's requirements, section II of this preamble summarizes the ANSI Z97.1-2009ε 2 standard that the Commission proposes to incorporate by reference into 16 CFR part 1201. Interested persons may purchase a copy of ANSI Z97.1-2009ε 2 from the following address. Attn: ANSI Customer Service Department, 25 W 43rd Street, 4th Floor, New York, NY 10036. The standard is also available for purchase from ANSI's Web site: http://webstore.ansi.org/RecordDetail.aspx?sku=ANSI+Z97.1-2009. A copy of the standard can also be inspected at CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-7923.

The Commission invites interested persons to submit their comments to the Commission on any aspect of the proposed amendment. Comments should be submitted as provided in the instructions in the ADDRESSES section at the beginning of this notice.

For the reasons stated in the preamble, the Consumer Product Safety Commission proposes to amend 16 CFR part 1201 as follows:

(a) Except as provided in § 1201.1(c) and (d), architectural glazing products shall be tested in accordance with all of the applicable test provisions of ANSI Z97.1-2009ε 2 “American National Standard for Safety Glazing Materials Used in Building—Safety Performance Specifications and Methods of Test.” The Director of the Federal Register approves the incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from ANSI Customer Service Department, 25 W 43rd Street, 4th Floor, New York NY, 10036. You may inspect a copy at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or 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.

(b) [Reserved]

The Department proposes to make the following revisions in this rule:

Items subject to the EAR: This proposed rule adds clarifying language to various provisions of the ITAR pertaining to the export of items subject to the EAR pursuant to a Department of State authorization, when such exports are made in conjunction with items subject to the ITAR. These revisions include guidance on the use of licensing exemptions for export of such items, as well as clarification that items subject to the EAR are not considered defense articles, even when exported under a license or other approval (to include exemptions, see § 120.20) issued by the Department of State.

Items exported to or on behalf of an agency of the U.S. government: This proposed rule revises the licensing exemption language in ITAR § 126.4 to clarify when exports may be made to or on behalf of an agency of the U.S. government without a license. Additionally, the scope of this exemption is expanded in that it will allow for permanent exports, rather than only temporary exports. The Department seeks comments from the public on whether the proposed revision adequately eliminates ambiguity as to when the exemption may be applied, and whether it creates any unintended compliance burden.

Revision to the Destination Control Statement: This proposed rule revises the destination control statement in ITAR § 123.9 to harmonize its language with the EAR. This change is being made to facilitate the President's Export Control Reform initiative, which has transferred thousands of formerly ITAR-controlled defense article parts and components, along with other items, to the Commerce Control List in the EAR under the jurisdiction of the Department of Commerce.

This change in jurisdiction for many parts and components, along with other items, for military systems has increased the incidence of exporters shipping articles subject to both the ITAR and the EAR in the same shipment. Both regulations have a mandatory destination control statement that must be on the export control documents for shipments that include items subject to both sets of regulations. This has caused confusion to exporters as to which statement to include on mixed shipments, or whether to include both. Harmonizing these statements will ease the regulatory burden on exporters.

Procedures for Obtaining State Department Authorization to Export Items Subject to the EAR: This proposed rule revises the ITAR in a number of places to clarify how parties may obtain authorization from the Department to export or retransfer items subject to the EAR. Section 120.5 is revised to clarify that items subject to the EAR may be authorized pursuant to an exemption with certain conditions. A new paragraph (d) is added to ITAR § 123.9 to clarify the requirements for retransferring items subject to the EAR pursuant to a letter of General Correspondence. Section 124.16 is revised to clarify that the special retransfer authorization of this section may be used for items subject to the EAR with certain conditions.

Other changes in this rule: The Department proposes to make a number of minor edits to the ITAR that will address erroneous or outdated reporting requirements. This rule would remove the requirement to provide seven paper copies for various export license requests in §§ 124.7, 124.12, 124.14, 125.2, 125.7 and 126.9, which has not been necessary for many years due to the use of electronic license submissions, change the identification of the agency responsible for permanent import authorizations in § 123.4 from the Department of the Treasury to Department of Justice, and impose the Code of Federal Regulations paragraph structure on § 124.8. Additionally, the Department proposes removing the pilot filing requirement found in § 123.13, given that it does not take into account the practices of modern airport operations and is no longer necessary.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States government and that rules implementing this function are exempt from §§ 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

Since the Department of State is of the opinion that this proposed rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This proposed rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department does not believe this rulemaking is a major rule as defined in 5 U.S.C. 804.

This proposed rulemaking will not 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. Therefore, in accordance with Executive Order 13132, it is determined that this proposed rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess 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, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. These rules have been designated “significant regulatory actions,” although not economically significant, under Executive Order 12866. Accordingly, this proposed rule has been reviewed by the Office of Management and Budget (OMB).

The Department of State has reviewed this proposed rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this proposed rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the provisions of Executive Order 13175 do not apply to this proposed rulemaking.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. This rule removes provisions that previously required the applicant to provide seven additional copies for various export license requests. The Department believes that there will be little or no practical burden reduction since the use of electronic methods of filing has made the requirement for “seven copies” obsolete.

The following information collections are affected by this rulemaking:

1. Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, OMB Control No. 1405-0003;

2. Application/License for Temporary Import of Unclassified Defense Articles, OMB Control No. 1405-0013;

3. Application/License for the Permanent/Temporary Export or Temporary Import of Classified Defense Articles and Classified Technical Data, OMB Control No. 1405-0022;

4. Application/License for Temporary Export of Unclassified Defense Articles, OMB Control No. 1405-0023;

5. Application for Amendment to License for Export or Import of Classified or Unclassified Defense Articles and Related Technical Data OMB Control No. 1405-0092;

6. Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, OMB Control No. 1405-0093;

7. Request to Change End User, End Use and/or Destination of Hardware, OMB Control No. 1405-00173; and

8. Request for Advisory Opinion, OMB Control No. 1405-0174.

The Department is requesting public comment on its estimate that there will be little or no change in the burdens associated with these information collections as a result of this rulemaking.

Date: Comments will be accepted until July 21, 2015.

Addresses: Interested parties may submit comments within 60 days of the date of publication by one of the following methods:

• Email: [email protected], with the subject line “AC88 PRA Burden Reduction”;

• Internet: At www.regulations.gov; please search for this proposed rule by using this proposed rule's RIN (1400-AC88) and indicate that you are commenting on the paperwork burden change in any (or all) of the eight information collections identified above.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120, 123, 124, 125, and 126 are proposed to be amended as follows:

The Court Services and Offender Supervision Agency for the District of Columbia (CSOSA) is proposing to amend its regulations concerning the conditions of release requirements for offenders under CSOSA supervision. Specifically, these regulations pertain to the conditions of release that are imposed on an offender when under CSOSA supervision; specifically, the requirement to maintain a certain frequency of face-to-face contact with one's community supervision officer, and the conditions of release that are articulated in the accountability contract that the offender signs with CSOSA. These regulations also detail the consequences that an offender may face for violating the conditions of his or her supervision.

With this amendment, CSOSA will revise the language to reflect that the regulations apply to probationers as well as parolees, and to offenders who are under supervised release. In addition, CSOSA will expand the language of the regulation to detail and provide notice of when CSOSA Community Supervision Officers will use electronic monitoring as a tool to assist in supervision. Currently, the regulations only reference electronic monitoring as an administrative sanction for an offender who has violated the general or specific conditions of release or who has engaged in criminal activity. The amended language will specify the circumstances under which electronic monitoring is used as a supervision tool, including but not limited to: instances when CSOSA's Community Supervision Services (CSS) Division issues directives to place offenders who fit a certain criminal behavioral pattern on electronic monitoring; and instances when CSS makes an individualized determination to place an offender on electronic monitoring based on an offender's noncompliance with the conditions of his supervised release or for other extenuating circumstances.

CSOSA is publishing the proposed rule for notice and comment as required by 5 U.S.C. 553(b)(3)(B).

CSOSA has determined that the proposed rule is not a significant rule within the meaning of Executive Order 12866.

The proposed rule will not 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. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

The proposed rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

The proposed rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

The proposed rule is not a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E—Congressional Review Act), now codified at 5 U.S.C. 804(2). The rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, this is a rule of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

For the reasons set forth in the preamble, CSOSA proposes to revise 28 CFR part 810 to read as follows:

The Department of Defense is determined to assist victims and witnesses of violent crimes committed in violation of the Uniform Code of Military Justice (UCMJ).

a. This rule establishes policy, assigns responsibilities, and prescribes procedures to assist victims and witnesses of crimes committed in violation the Uniform Code of Military Justice (UCMJ), and updates established policy, assigns responsibilities, and prescribes procedures for the rights of crime victims under the UCMJ and required mechanisms for enforcement. The rule also provides timely notification of information and assistance available to victims and witnesses of crime from initial contact through investigation, prosecution, confinement, and release, annual reporting requirements on assistance provided across the DoD to victims and witnesses of crime, and legal assistance for crime victims entitled to such services. The Military Services are required to provide legal counsel, known as Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC), to assist victims of alleged sex-related offenses under Articles 120, 120a, 120b, 120c, and 125 of the UCMJ, who are eligible for legal assistance. The Military Services are also required to establish a special victim capability comprised of specially trained criminal investigators, judge advocates, paralegals, and victim/witness assistance personnel to support victims of covered special victim offenses. To de-conflict with “Special Victims' Counsel” programs, this distinct group of recognizable professionals will be referred to, at the DoD level, as the “Special Victim Investigation and Prosecution (SVIP)” capability.

b. Authority: 10 U.S.C. chapter 47, the UCMJ; 10 U.S.C. 113, 1034, 1044, 1044e 1058, 1059, and 1408; 18 U.S.C. 1512 through 1514; sections 1701 and 1716 of Public Law 113-66, which strengthened the rights of victims of crimes committed under the UCMJ, and designated SVC/VLC for victims of covered offenses; section 573 of Public Law 112-239, which required the Military Services to establish a special victim capability comprised of specially trained investigators, judge advocates, paralegals, and victim witness assistance personnel to support victims of covered offenses; and section 533 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, which extended eligibility for SVC/VLC services to members of a reserve component of the armed forces.

This rule describes the responsibilities that the USD(P&R), Inspector General of the Department of Defense, and DoD component heads have when dealing with the procedures described in the regulatory text. The rule also discusses procedures involving local responsible officials, comprehensive information and services to be provided to victims and witnesses, special victim investigation and prosecution (SVIP) capability, legal assistance for crime victims, and special victims' counsel programs.

The combined cost of annual reporting requirements to the DoD and Military Services related to DoD victim and witness assistance programs (VWAP) is approximately $12,317. DoD VWAP programs are administered directly by the DoD Components, including the Military Services, at local installations and regional commands worldwide.

(1) A complete victim and witness assistance policy, to ensure the consistent and effective management of DoD victim and witness assistance programs operated by DoD Components. The proposed rule updates and replaces DoD Directive 1030.01, “Victim and Witness Assistance” (April 13, 2004) (available at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf), and DoD Instruction 1030.2 “Victim and Witness Procedures” (June 4, 2004) (available at http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf), to implement statutory requirements for the DoD victim assistance programs under the a single DoD instruction., which revises the rights for crime victims of offenses committed under the UCMJ, requires the Military Services to create enforcement mechanisms, provides for legal assistance for crime victims entitled to legal services, requires that Military Services to provide SVC/VLC to assist victims of covered offenses, and further implements the SVIP capability, which provides enhanced support to victims of sexual assault, serious domestic violence, and child abuse offenses. requiring each Military Service to establish a special victim capability comprised of specially trained criminal investigators, judge advocates, paralegals, and victim witness personnel to enhance support to victims of sexual assault, serious domestic violence, and child abuse offenses.

VWAP provides guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, confinement, and release, until the victim specifies to the local responsible official that he or she no longer requires or desires services. Particular attention is paid to victims of serious and violent crime, including child abuse, domestic violence, and sexual assault.

(2) Strengthens the rights of crime victims in the military justice system and requires the establishment mechanisms for enforcement of these rights in each Military Department, in accordance with section 1701 of Public Law 113-66. These provisions ensure victims have a right to be reasonably heard at public hearings concerning the continuation of confinement before the trial of the accused, preliminary hearings under section 832 (Article 32) of the UCMJ, and court-martial proceedings relating to the Military Rules of Evidence (M.R.E.) 412, 513, and 514 of the Manual for Courts-Martial (MCM) (available at http://www.apd.army.mil/pdffiles/mcm.pdf) and that all victims are treated with fairness and respect for their dignity and privacy.

(3) Orients victims and witnesses to the military justice system, about the military criminal justice process, on the role of the victim or witness in the process, and how the victim or witness can obtain additional information concerning the process and the case.

(4) Provides timely notification of information and assistance available to victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.

(5) Enables victims to confer with the attorney for the U.S. Government in the case before preliminary and trial proceedings, and to express their views to the commander or convening authority as to disposition of the case.

(6) Assists victims with prompt return of personal property held as evidence during a military criminal investigation and court-martial.

(7) Provides eligible victims and military families with access to transitional compensation in accordance with Federal law and DoD Instruction 1342.24, “Transitional Compensation for Abused Dependents,” May 23, 1995 (available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf).

(8) Ensures victims are aware of procedures to receive restitution as provided in accordance with State, local, and federal crime victims' funds, and the procedures for applying for such funds. Restitution may also be available from, or offered by, an accused as a condition in the terms of a pretrial agreement, during the sentencing process, as a part of post-trial mitigation under Rule of Court-Martial 1105, of the MCM. Under Article 139, UCMJ, victims may also be provided with relief if the property loss or damage resulted from wrongful taking or willful damage by a member of the Armed Forces due to riotous, violent, or disorderly conduct.

(9) Mandates compliance with DoD standards for victim assistance services in the military community established in DoD Instruction 6400.07 “Standards for Victim Assistance Services in the Military Community,” November 25, 2013 (available at http://www.dtic.mil/whs/directives/corres/pdf/640007p.pdf).

(10) Provides that crime victims who are entitled to military legal assistance under sections 1044 and 1044e of title 10, U.S.C., and as further prescribed by the Military Departments and National Guard Bureau policies, may consult with a military legal assistance attorney.

(11) Provides legal counsel, known as Special Victims' Counsel or Victims' Legal Counsel (SVC/VLC), to assist victims of alleged sex-related offenses in accordance with Articles 120, 120a, 120b, 120c, and 125 of the UCMJ, and attempts to commit any of these offenses under Article 80 of the UCMJ, regardless of whether the report of the offense is restricted or unrestricted. Individuals entitled to SVC/VLC representation include any of the following:

(a) Individuals eligible for military legal assistance under sections 1044 and 1044e of title 10, U.S.C., and as further prescribed by the Military Departments' and National Guard Bureau policies.

(b) Members of a reserve component of the armed forces, in accordance with section 533 of the National Defense Authorization Act for Fiscal Year 2015, and as further prescribed by the Military Departments and National Guard Bureau policies.

(12) Establishes a Special Victim Investigation and Prosecution (SVIP) capability in each Military Service comprised of specially trained criminal investigators, judge advocates, paralegals, and victim and witness assistance personnel to work with specially trained military criminal investigators to support victims of adult sexual assault, domestic violence, and child abuse. To de-conflict with the names of SVC/VCL programs, this distinct group of recognizable professionals will be referred to as SVIP at the DoD level. Ensures SVIP training programs meet established DoD and Military Service standards for special prosecutors, paralegal, VWAP coordinators and providers, and legal support personnel.

(13) Establishes local Victim and Witness Assistance Councils, when practicable, at each military installation, to ensure victim and witness service providers follow an interdisciplinary approach. This will ensure effective coordination between VWAP coordinators and DoD personnel providing related services, including sexual assault prevention and response coordinators, family advocacy personnel, military treatment facility health care providers and emergency room personnel, family service center personnel, chaplains, military equal opportunity personnel, judge advocates, SVC/VLCs, unit commanding officers, corrections personnel, and other persons designated by the Secretaries of the Military Departments.

(14) Maintains annual reporting requirements on assistance provided across the DoD to victims and witnesses of crime, which will be provided to the Department of Justice Office of Victims of Crime and the Bureau of Justice Statistics.

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

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This document will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

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

This proposed rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This proposed rule will not have a substantial effect on State and local governments.

Accordingly, 32 CFR part 114 is proposed to be added to read as follows:

Table of Contents for Preamble I. Public Participation and Request for Comments II. Abbreviations III. Background IV. Discussion of Proposed Rule V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

We encourage you to submit comments (or related material) on this rulemaking. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2011-0576 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online (see the Federal Register Privacy Act notice regarding our public dockets, 73 FR 3316, Jan. 17, 2008).

Mailed or hand-delivered comments should be in an unbound 81/2 × 11 inch format suitable for reproduction. The Docket Management Facility will acknowledge receipt of mailed comments if you enclose a stamped, self-addressed postcard or envelope with your submission.

Documents mentioned in this notice of proposed rulemaking and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following the Web site's instructions. You can also view the docket at the Docket Management Facility (see the mailing address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

We are not planning to hold a public meeting but will consider doing so if public comments indicate a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

The legal basis of this proposed rule is 33 U.S.C. 1231 and 1321(j), which require the Secretary of the department in which the Coast Guard is operating to issue regulations necessary for implementing the Ports and Waterways Safety Act, and to require the President to issue regulations requiring response plans and other measures to protect against oil and hazardous substance spills. The President's authority under 33 U.S.C. 1321(j) is delegated to the Secretary by Executive Order (E.O.) 12777, and the Secretary's authority is delegated to the Coast Guard by DHS Delegation No. 0170.1(II)(70), (73), and (80).

The purpose of this proposed rule is to implement section 710 of the Coast Guard Authorization Act of 2010 (“the Act”),1 which requires the Coast Guard to initiate by October 15, 2011, a rulemaking to modify the 33 CFR 155.1020 definition of the State of Washington's higher volume port area (the Washington HVPA) by replacing a reference to Port Angeles, WA, with a reference to Cape Flattery, WA, and by reviewing any modifications to vessel response plans (VRPs), made in response to the definitional change, not later than October 15, 2015. The Coast Guard initiated this project by the October 15, 2011 deadline.

Oil or hazardous material pollution prevention regulations for a U.S. vessel, and for a foreign vessel operating in U.S. waters, appear in Coast Guard regulations at 33 CFR part 155. Many of those regulations require a vessel response plan (VRP) describing measures that the vessel owner or operator has taken or will take to mitigate or respond to an oil spill from the vessel. The VRP must demonstrate the vessel's ability, following a spill, to secure response resources within given time periods. These measures typically include the services of nearby response resources under a contract between the vessel's owner or operator and an oil spill removal organization (OSRO) that owns the response resources. The regulations provide for three different timeframes within which a combination of required response resources must arrive on the scene, which are described as Tiers 1, 2, and 3.

In 33 CFR part 155, subparts D (petroleum oil as cargo), F (animal fat or vegetable oil as cargo), G (non-petroleum oil as cargo), and J (petroleum oil as fuel or secondary cargo) all share the same definition of “Higher volume port areas.” Required response times are significantly reduced in HVPAs. For example, Tier 1 response times for an oil tanker within an HVPA are half that required of the same vessel operating in open ocean. As defined in 33 CFR 155.1020, the Strait of Juan de Fuca and Puget Sound, Washington constitute one of 14 HVPAs designated around the country.

Since 1996, 33 CFR 155.1020 has defined the seaward boundary of the Washington HVPA as an arc 50 nautical miles seaward of the entrance to Port Angeles, Washington. Port Angeles is approximately 62 miles inland from the Pacific Ocean entrance to the Strait of Juan de Fuca, at Cape Flattery, WA, and therefore, the Washington HVPA does not currently include any Pacific Ocean waters. Section 710 of the Act requires the Coast Guard to initiate a rulemaking to relocate the HVPA's arc so that it extends seaward from Cape Flattery, not Port Angeles. This would add 50 nautical miles of Pacific Ocean water and an additional 12 nautical miles in the western portion of the Strait of Juan de Fuca. Waters affected by sec. 710 and by this rulemaking are shown on National Oceanic and Atmospheric Administration charts.2

Section 710 requires us to initiate a rulemaking not later than October 15, 2011, to modify the definition of the Washington HVPA to relocate the arc. Section 710 also requires us to approve VRPs that require modification as a result of the rulemaking not later than October 15, 2015. We have determined that, with respect to existing VRPs, no modifications or new Coast Guard VRP approvals will be needed.

To maximize the affected public's ability to plan for the change in the Washington HVPA's boundaries, we published a 2011 Federal Register notice of our intent to comply with sec. 710.3 This advised the public that regulatory implementation of sec. 710 was forthcoming. The notice did not request public comments and no public comments were received.

The current definition of the Washington HVPA's boundaries 4 reads: “Higher volume port area means the following areas, including any water area within 50 nautical miles seaward of the entrance(s) to the specified port: . . . (13) Strait of Juan De Fuca at Port Angeles, WA to and including Puget Sound, WA.” In strict compliance with the express wording of sec. 710(a), we propose amending that definition by striking “Port Angeles, WA” and inserting “Cape Flattery, WA” in its place. As amended, the definition would then read: “Higher volume port area means the following areas, including any water area within 50 nautical miles seaward of the entrance(s) to the specified port: . . . (13) Strait of Juan de Fuca at Cape Flattery, WA to and including Puget Sound, WA.”

Port Angeles lies about 62 miles east of the entrance to the Strait of Juan de Fuca. By moving the arc so that it centers on Cape Flattery, which lies at the entrance to the Strait, the proposed redefined Washington HVPA would cover an additional 50 nautical miles of Pacific Ocean water, while continuing to cover all the waters now included within the current HVPA. The larger Washington HVPA may affect the time and resources needed to respond to an oil spill from a vessel, because it is harder and more time-consuming to transit rough Pacific Ocean waters than it is to transit the sheltered waters of the Strait and the Sound. (We discuss these possibilities in more detail in the Regulatory Analysis section that follows.)

We developed this proposed rule after considering numerous statutes and E.O.s related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 (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, of reducing costs, of harmonizing rules, and of promoting flexibility.

This proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866 as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866. The Office of Management and Budget (OMB) has not reviewed it under E.O. 12866. We developed an analysis of the costs and benefits of the proposed rule to ascertain its probable impacts on industry. A draft preliminary Regulatory Assessment follows.

This proposed rule would expand the existing Washington HVPA for Puget Sound and the Strait of Juan de Fuca. Currently, the Washington HVPA boundary is measured from Port Angeles in a 50-mile seaward arc westward to the Pacific Ocean. As mandated by sec. 710 of the Act, this proposed rule would amend the definition of the term “Higher volume port area” and relocate the point at which the seaward arc is measured from Port Angeles to Cape Flattery, WA, an approximately 62-mile westward shift. As a result, the Washington HVPA would cover an additional 50 miles of open ocean and an additional 12 nautical miles in the western portion of the Strait of Juan de Fuca. A VRP must list the OSRO provider that the vessel owner or operator has contracted with and stipulate the vessel's ability to secure response resources within specific regulatory timeframes (Tiers 1, 2, and 3) in the event of an oil spill. This proposed rule would codify the changes delineated in the Act and it would not require changes to VRPs.

Part 155 in 33 CFR directly applies to and regulates vessel owners and operators. Specified vessels prepare vessel response plans that must list the OSRO provider that the vessel owner or operator has contracted with and stipulate the vessel's ability to secure response resources within specific regulatory timeframes (Tiers 1, 2, and 3) in the event of an oil spill. The proposed rule has the potential to impact vessel response planholders covering vessels that transit the Washington HVPA and OSROs that provide response resources in the event of an oil spill. Based on Coast Guard review of vessel response plans, 2 OSROs may be impacted by the proposed rule. One OSRO has about 500 response resource contracts and the other OSRO has about 650 contracts with planholders that own vessels that call on the Cape Flattery higher volume port area. For the OSRO that has 500 contracts, about 3 percent or 15 are with U.S. planholders; the OSRO that has 650 contracts, about 2 percent or 13 are with U.S. planholders.

Vessel owners and operators would not need to revise or modify a current VRP to take into account expansion of the HVPA. Current VRPs already specify one or both of the OSROs that provide response resources to vessel owners and operators in the affected waters. Vessel owners and operators must only list the OSRO by name and include the contact information for each OSRO in the VRP; no other information or details are required in the VRP that are dependent upon the geographic location of response equipment.

In addition to identifying the OSRO in the vessel response plan, vessel owners and operators must ensure the availability of response resources from the OSRO through a contract or other approved means. Depending on how the contract language is formulated, a contract may need to be modified to reflect the change in the HVPA geographical definition. One OSRO provided information which stated that contracts would need to be modified slightly to incorporate the geographic change of the expanded higher volume port while the other OSRO provided information which stated that no changes or modifications to existing contracts would be necessary on the part of either the OSROs or the planholders. For the purpose of this analysis, we estimate costs to modify a contract for the planholders of the OSRO that stated that changes would be necessary. This OSRO has about 500 planholders with written contractual agreements to secure response resource services in the event of an oil spill; of this amount, only about 3 percent or 15, are with U.S. planholders. Based on information we obtained from industry in formulating the Nontank Vessel Response Final Rule [78 FR 60100], it would take a General and Operations Manager approximately 2 hours of planholder time to amend the contract and send the contract to the OSRO for approval. If a plan preparer amends the contract on behalf of the planholder, we estimate it would take the same amount of time. We found that 36 percent of planholders perform this work internally and 64 percent hire a plan preparer to perform this work on their behalf. The amendment of a contract is a one-time cost; we estimate little or no submission cost for planholders because nearly 100 percent of contracts are submitted by email to the responsible OSRO.

For planholders who perform the work internally and using the Bureau of Labor Statistics (BLS) May 2013 National Industry-Specific Occupational Employment and Wage Estimates for General and Operations Manager (Occupation Code 11-1021), we obtain a mean hourly wage rate of $62.68. We then use BLS' 2014 Employer Cost for Employee Compensation databases to calculate and apply a load factor of 1.52 to obtain a loaded hourly labor rate of about $95.30 for this occupation.5 For plan preparers, we obtained publicly available fully loaded billing rates for Senior Regulatory and Environmental Consultants and Environmental Program Managers from three environmental service companies using the General Services Administration's (GSA) Federal Acquisition eLibrary for service contracts.6 We took the average of these three rates to obtain a fully loaded hourly wage rate of $151.00 (rounded). Of about 500 planholders who have contracts with this OSRO, only about 15 are U.S. planholders. Of the 15 U.S. planholders, about 36 percent would amend the contract internally. We estimate the one-time cost to these planholders to be about $1,030 ($95.30 × 2 hours × 500 planholders × 0.03 × 0.36, rounded). For the remaining 64 percent of U.S. planholders who have a plan preparer amend the contracts on their behalf, we estimate the one-time cost to be about $2,899 ($151.00 × 2 hours × 500 planholders × .03 × 0.64, rounded); combined the total estimated one-time cost to U.S. planholders to amend the contracts would be about $3,930, rounded and undiscounted. We estimate the average one-time or initial cost for each U.S. planholder to amend a contract to be about $262 ($3,930/15 U.S. planholders). We estimate the 10-year discounted cost to be about $3,673 using a 7 percent discount rate and the annualized cost to be about $523. Taking into consideration the uncertainty of this analysis, we request public comment on the cost impacts of this rule on OSROs and VRP planholders.

The remaining 485 planholders are foreign. For 36 percent of them who would amend the contracts internally, we estimate the one-time cost to be about $33,300 ($95.30 × 2 hours × 485 planholders × 0.36, rounded). For the remaining 64 percent of foreign planholders who have a plan preparer amend the contracts on their behalf, we estimate the one-time cost to be about $93,740 ($151.00 × 2 hours × 485 planholders × 0.64, rounded); combined the total estimated one-time cost to foreign planholders to amend the contracts would be about $127,040, rounded, or about $262 per planholder ($127,040/485 foreign planholders).

The final category of potential costs relates to the OSRO's ability to meet the specified response times in the new geographic area of the HVPA. Based on information provided to Coast Guard, one OSRO stated that additional response equipment would not be required and capital expenditures would not be necessary as result of the expanded higher volume port area under current Coast Guard OSRO classification guidelines. Based on data from the other OSRO, we estimate that total initial capital costs could be as high as $5.5 million for temporary storage equipment and warehousing with annual capital recurring costs of approximately $250,000 for equipment maintenance, and up to $1 million for barge recertification (included in the $5.5 million estimate), warehousing, and other necessary resource equipment. However, we lack independent methods to verify these estimates. Moreover, the actual costs the OSRO may incur depend considerably on how they choose to comply with our regulations, which give OSROs substantial flexibility with respect to pre-positioning response resources.

To the extent one OSRO would incur additional costs due to this proposed rule (such as increased capitalization costs), we expect that these costs would be generally passed onto their VRP planholders equally although the OSRO who provided this information conceded that this was speculative at this point due to the uncertainty of expenditures that may be needed as described below. Using the highest value of capital costs provided to us of $5.5 million, we use the capital recovery cost factor to determine the amount needed annually to recovery this payout since we assume the OSRO would finance the expenditures and attempt to recapture them equally over the life of the equipment. The capital recovery factor or ratio as it is often referred to, is the ratio of a constant annuity to the present value of the annuity over a given period of time using an acceptable discount rate, as in this case, 7 percent. The ratio also includes the general life expectancy of the investment and can be simply described as the “share of the net cost that must be recovered each year to `repay the cost of the fixed input at the end of its useful life.' ” If we use a standard life expectancy of 20 years, we calculate the net amount that must be recovered by the OSRO annually to be about $519,161, undiscounted.7 If we assume this cost is distributed equally over the 650 planholders (U.S. and foreign planholders who own vessels that transit the higher volume port area) under contract with this OSRO, the amount needed to be recovered by the OSRO to recapture this initial investment is estimated to be about $800 (rounded) from each planholder annually, most likely in the form of higher retainer fees. However, only about 2 percent, or 13 of the 650 planholders are U.S. planholders. Therefore, for the 13 U.S. planholders, we estimate the total capital cost of this proposed rule to be about $10,400 (650 planholders × 0.02 × $800) annually, undiscounted, in addition to annual maintenance costs of about $385 per planholder ($250,000/650 planholders), undiscounted, in years 2 through 10 of the analysis period. We estimate the total 10-year discounted cost to the 13 U.S. planholders to be about $75,400 using a 7 percent discount rate (the 10-year discounted cost is estimated to be about $91,600 using a 3 percent discount rate) and the annualized cost to be about $10,734. See Table 1.

It follows that the remaining 637 planholders are foreign. Again, if we assume this OSRO passes along its capital cost in the form of higher retainer fees to foreign planholders, we estimate the total capital cost of this proposed rule to foreign planholders to be about $509,600 (637 × $800) annually, undiscounted, in addition to annual maintenance costs of about $245,000 (637 × $385), undiscounted, in years 2 through 10 of the analysis period. We estimate the total 10-year discounted cost to foreign planholders to be about $3.6 million using a 7 percent discount rate (the 10-year discounted cost is estimated to be about $4.3 million using a 3 percent discount rate). As stated earlier, we neither have knowledge of the OSROs billing structure nor how costs would be distributed among planholders, although in our discussion with one OSRO, we learned that the composition of a planholder's vessel fleet affects the amount of the retainer fee since vessels such as nontank ships requires different response resources as opposed to towing vessels, for example.

Table 1 summarizes the total estimated cost of the proposed rule to 28 U.S. planholders over a 10-year period of analysis.

As Table 1 shows, for 15 U.S. planholders who may need to revise their contracts, we estimate the 10-year discounted cost of the proposed rule to be about $3,673 at a 7 percent discount rate (using a 3 percent discount rate, we estimate the 10-year discounted cost to be about $3,816). We estimate the annualized cost to be about $523 for these 15 planholders.

For the OSRO who may incur capital costs as a result of this proposed rule and pass these costs along to its 13 U.S. planholders, we estimate the 10-year discounted cost to be about $75,400 at a 7 percent discount rate (using a 3 percent discount rate, we estimate the 10-year discounted cost to be about $91,624). We estimate the annualized cost to be about $10,734 at a 7 percent discount rate for these 13 planholders.

We estimate the total present discounted cost of the proposed rule to all 28 U.S. planholders to be about $79,062 at a 7 percent discount rate (using a 3 percent discount rate, we estimate the total 10-year discounted cost to be about $95,440). We estimate the annualized cost to be about $11,257 at a 7 percent discount rate.

We do not anticipate that this proposed rule would impose new costs on the Coast Guard or require the Coast Guard to expend additional resources because we do not expect any changes would be required to their VRPs.

Due to the specific nature of sec. 710(a), we are limited in the alternative approaches we can use to comply with Congress' intent. We considered three alternatives (including the preferred alternative) in the development of the proposed rule: (1) Revise 33 CFR 155.1020 by striking “Port Angeles, WA” in the definition of “Higher volume port area” of that section and inserting “Cape Flattery, WA”; (2) Revise 33 CFR 155.1020 by striking “50 nautical miles” in the definition of “Higher volume port area” and inserting “110 nautical miles”; and (3) Take no action. The Regulatory Analysis section further discusses the analysis of the preferred alternative (i.e., express adoption of the wording from sec. 710(a)) in comparison with other regulatory approaches considered.

We considered three alternatives (including the preferred alternative) in the development of this proposed rule. The key factors that we evaluated in considering each alternative included: (1) The degree to which the alternative comported with the congressional mandate in sec. 710 of the Act; (2) What benefits, if any, would be derived, such as enhancement of personal and environmental safety and security; and (3) Cost effectiveness. The alternatives considered are as follows:

Alternative 1: Revise 33 CFR 155.1020 by striking “Port Angeles, WA” in the definition of “Higher volume port area” of that section and inserting “Cape Flattery, WA.” Since 1996, 33 CFR 155.1020 has defined the seaward boundary of the Washington HVPA as an arc 50 nautical miles seaward of the entrance to Port Angeles, WA. The proposed change would relocate the arc's center to Cape Flattery, covering approximately 50 additional nautical miles of open ocean.

Alternative 2: Revise 33 CFR 155.1020 by striking “50 nautical miles” in the definition of “Higher volume port area” and inserting “110 nautical miles.” This change would affect the other 13 HVPAs throughout the United States because of the level of response resources required with the significantly reduced response times that would be associated with a 110-mile outward shift of the existing HVPAs from their entrances. A shift of this distance would require the purchasing and positioning of heavier and more expensive equipment such as oceangoing tugs and barges. In addition, OSROs would incur considerable costs of potentially retrofitting existing HVPAs with shoreside docks. Since this would include all HVPAs, the economic impact on the response resource industry, as a whole, would be greater as opposed to a single HVPA. Furthermore, this option goes beyond the requirements of sec. 710 of the Act, which specifically requires the Coast Guard to initiate a rulemaking proceeding to modify the definition of the term “Higher volume port area” by striking “Port Angeles, WA” and inserting “Cape Flattery, WA.”

Alternative 3: Take no action. This option was not selected as it would not implement the intent of sec. 710 of the Act, which specifically requires the Coast Guard to initiate a rulemaking to modify the definition of the term “Higher volume port area” by striking “Port Angeles, WA” and inserting “Cape Flattery, WA.” It also precludes the protection intended by Congress for the waters at the entrance to and in the Strait of Juan de Fuca.

We chose Alternative 1, which codifies the regulation directly and specifically implements sec. 710 of the Act as described earlier. We rejected Alternative 2, because it went beyond the direction provided by Congress in sec. 710 and adds burden, both in the Puget Sound region and in the other HVPAs throughout the United States. We rejected Alternative 3, the “no action” alternative, because it would not implement sec. 710.

We do not identify any historic cases that could support the development of quantifiable benefits associated with this proposed rule. Using the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database with casualty cases transferred from MISLE's predecessor, the Marine Safety Management System database, we examined 283 spill cases from 1995 to 2013, beginning with the first spills that appeared in our database for this geographic region. Based on information from Coast Guard personnel who have experience in casualty case investigations and analysis, we found no cases or spills that would have benefitted from the expanded HVPA.

Qualitatively, oil spills are likely to result in a negative impact to the ecosystem and the economy of the surrounding area. These represent social welfare effects that are not accounted for solely by the amount of oil spilled into the water. In many cases, the scope of the impact is contingent on the vulnerability and resiliency of the affected area. A barrel of spilled oil may not have the same impact in one area as it would in another. Some locations are more sensitive or vulnerable than others. Depending on the ecosystem, VRPs could mitigate impacts to habitats that house multiple species. An area with an ecosystem that is damaged as a result of previous environmental incidents or damaged due to the cumulative effects of environmental injuries over time can be expected to have higher benefits from oil spill mitigation.

The primary benefit of this proposed rule is to ensure that in the event of a spill, adequate response resources are available and can be mobilized within the expanded HVPA. This will ensure a timely response by vessel owners and operators and the OSROs in an effort to reduce the likelihood, and mitigate the impact of an oil spill on the marine environment that might occur in the expanded HVPA.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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.

Regarding vessel owners and operators, as previously discussed, this proposed rule would codify the requirements in the Act of an expanded HVPA, and it would not require vessel owners and operators to make changes to VRPs. Therefore, owners and operators of vessels that transit the HVPA would not incur additional VRP modification costs as a result of this proposed rule. However, as assumed earlier for the purpose of this analysis, if contracts would need to be modified, as stated by one OSRO on the part of the planholders, U.S. planholders would bear some costs of this proposed rule as shown earlier in this preamble. We estimate that each of the 15 U.S. planholders would incur an average one-time cost of about $262 to amend its contract with the OSRO.

Also, regarding capital costs, it is unclear whether or how these costs impact vessel owners and operators without knowledge of the OSROs' billing structures. Additionally, proprietary information is not available that would allow us to determine the distribution of costs among many vessel owners and operators contracting with each OSRO. Nevertheless, in our earlier analysis, if we assume capital costs are incurred by one of the OSROs and we assume this cost would be passed along equally to U.S. planholders in the form of higher retainer fees, we estimate each of the 13 U.S. planholders would incur an annual cost of about $800 from one particular OSRO in addition to $385 in maintenance costs in years 2 through 10 of the analysis period for a total planholder cost of about $1,185 in years 2 through 10 of the analysis period.

We assume for the purpose of this analysis that the two OSROs that provide response resource capabilities to the HVPA in Puget Sound may incur costs from this proposed rule and may likely pass along these costs to planholders in the form of higher retainer fees or planholders may incur one-time costs to amend their contracts with one of the OSROs. Using the North American Industry Classification System (NAICS) codes for businesses and the Small Business Administration's (SBA) size standards for small businesses, we determined the size of each OSRO. One OSRO has a primary NAICS code of 541618 with an SBA size standard of $15 million, which is under the subsector group 541 of the NAICS code with the description of “Professional, Scientific, and Technical Services.” The other OSRO has a primary NAICS code of 562998 with an SBA size standard of $7.5 million, which is under the subsector group 562 of the NAICS code with the description of “Waste Management and Remediation Services.” Based on the information above and annual revenue data from publicly available and proprietary sources, Manta and ReferenceUSA, neither OSRO is considered to be small.

There are about 1,400 U.S. planholders that have either tank vessel, nontank vessel, or combined vessel response plans. Based on the affected population of this proposed rule relative to the size of the industry as a whole, in this case U.S. vessel response plan owners (planholders), this proposed rule would potentially affect 28 or about 2 percent of the total population of U.S. planholders in the United States. As described earlier and dependent upon the OSRO considered, we estimate a U.S. planholder may incur an annual cost between $262 and $1,185 in years 2 through 10 of the analysis period (and between $262 and $800 in the initial year since we assume maintenance costs are not incurred in the initial year of the analysis period) as a result of this proposed rule. Given the cost analysis and pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Coast Guard certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.

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 to the Docket Management Facility at the address under ADDRESSES. In your comment, explain 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 1996,8 we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult LCDR John G. Peterson (see FOR FURTHER INFORMATION CONTACT). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995.9

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2015-0084), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number [USCG-2015-0084] in the “Search” box and click “Search.” Click the “Comment” box on the line associated with this supplemental notice of proposed rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number USCG-2015-0084 in the “SEARCH” box and click “Search.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. You may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

There is no recent regulatory history related to 33 CFR 165.901. The Coast Guard made a substantive amendment to the rule on August 4, 1983 (48 FR 35402) to adjust the position of the second RNA on Lake Huron under § 165.901(a)(2).

The legal basis for this rule is the Coast Guard's authority to establish RNAs and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

33 CFR 165.901 lists three Great Lakes RNAs—(1) the waters of Lake Huron known as South Channel; (2) the waters of Lake Huron between Mackinac Island and St. Ignace, Michigan; and (3) the waters of Lake Michigan known as Gray's Reefs passage. Although termed RNAs, these three areas are actually closure zones. Title 33 CFR 165.901(c) of the rule authorizes the Captain of the Port (COTP) Sault Sainte Marie to close and open the RNAs as ice conditions dictate. Normally, closures take place once in the winter with openings occurring in the spring. When closed, vessels are prohibited from navigating the RNAs without COTP authorization.

The Coast Guard has identified the need for two additional closure areas on the Great Lakes, specifically, (1) designated waters of Lake Huron on Saginaw Bay, Michigan; and (2) U.S. waters of Lake Erie in the vicinity of the South Passage and the Erie Islands, Ohio. The specific coordinates for these closures areas are set forth in the proposed regulatory text under § 165.901(a)(1)-(2). These areas attract recreational ice users during winter months. Vessel traffic would disrupt ice integrity in these areas and pose risks to these recreational waterway users, which may include people and vehicles falling through the ice. To mitigate these risks, the Coast Guard proposes to establish safety zones to close these areas to vessel traffic during the winter.

The Coast Guard also identified the need for three vessel traffic management areas or RNAs on the Great Lakes. These areas generally include (1) the waters of Lake Erie known as the Maumee Bay Entrance Channel; (2) the waters connecting Lake Huron to Lake Michigan known as the Straits of Mackinac; and (3) the waters of Lake Michigan known as Green Bay. Specific coordinates for these RNAs are set forth in the proposed regulatory text under § 165.901(c)(1)-(3). Vessel traffic ply the waters in these areas during winter months; however, seasonal ice conditions, which can worsen on short notice, pose risks to vessel traffic in these areas. To manage these risks, the Coast Guard proposes to establish RNAs in these areas to regulate vessel movement and safeguard vessel traffic. During periods of ice-cover, the Coast Guard anticipates issuing temporary vessel operating requirements, as provided for under 33 CFR 165.11, to promote the safe passage of vessels through the RNAs. Bases for these temporary traffic rules include winter navigation, channel obstructions, unusual weather conditions, or unusual water levels. Such temporary operating requirements may include transiting the RNA with an assist tug or standing fast until conditions permit safe passage.

In light of the foregoing discussion, the Coast Guard proposes to amend 33 CFR 165.901 to add two safety zones to protect recreational ice users and three RNAs to safeguard vessel traffic. In addition, the three closure areas in the rule, presently termed RNAs, will be redefined as safety zones. This redefinition will not affect the position or seasonal implementation of these closure areas. These proposed amendments will provide regulatory authority for the Coast Guard (1) to close designated waters on the Great Lakes to vessel traffic to protect recreational ice users during the winter season; (2) to manage vessel traffic in designated areas to protect vessels and mariners from dangers of ice conditions; and (3) to redefine the existing RNAs in the rule to safety zones. Since the existing closure areas do not involve vessel traffic management, they are more appropriately defined as safety zones, which generally provide for the closure of a waterway in the interest of safety.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The proposed amendments involve closure areas and vessel management areas, designed to be implemented only during winter months, as ice conditions dictate. As to the impact of the closure area on Lake Erie near the South Channel and the Erie Islands, OH, the Coast notes that industry vessels have taken alternative routes bypassing the Erie Islands when recreational ice users are present. The Coast Guard anticipates the same practice when this area is closed. Further, regarding the closure area on the waters of Lake Huron in Saginaw Bay, Michigan, the Coast Guard anticipates closing the bay after giving due consideration to industry's need to traverse the area. Moreover, under certain circumstances, the Coast Guard may permit vessel traffic to transit the closure areas. Regarding the three proposed vessel management areas, they are designed to regulate the conditions of vessel transit for safety. Overall, we expect the economic impact of this proposed rule to be minimal and that a full Regulatory Evaluation is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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. This proposed rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit the proposed safety zones and RNAs during the winter months.

These proposed amendments will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section.

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 so that they can better evaluate its effects on them and participate in the rulemaking. 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, above. 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.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

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.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule 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.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 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.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 (NEPA) (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. Because this proposed rule involves amendments to navigation regulations and establishment of a safety zones, it is categorically excluded under paragraph 34(g) of the Commandant Instruction. A Categorical Exclusion Determination (CED) and an environmental analysis checklist are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Table of Contents I. Background II. What elements are required under sections 110(a)(1) and (2)? III. What is EPA's approach to the review of infrastructure SIP submissions? IV. What is EPA's analysis of how Florida addressed the elements of sections 110(a)(1) and (2) “infrastructure” provisions? V. Proposed Action VI. Statutory and Executive Order Reviews I. Background

On October 5, 1978, EPA promulgated primary and secondary NAAQS for Lead under section 109 of the Act. See 43 FR 46246. Both primary and secondary standards were set at a level of 1.5 micrograms per cubic meter (µg/m 3), measured as Lead in total suspended particulate matter (Pb-TSP), not to be exceeded by the maximum arithmetic mean concentration averaged over a calendar quarter. This standard was based on the 1977 Air Quality Criteria for Lead (USEPA, August 7, 1977). On November 12, 2008 (75 FR 81126), EPA issued a final rule to revise the primary and secondary Lead NAAQS. The primary and secondary Lead NAAQS were revised to 0.15 µg/m 3. By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs to EPA no later than October 15, 2011, for the 2008 Lead NAAQS.1

Today's action is proposing to approve Florida's infrastructure SIP submission for the applicable requirements of the 2008 Lead NAAQS, with the exception of the preconstruction PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J). With respect to Florida's infrastructure SIP submission related to the provisions pertaining to the PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of D(i), and (J), EPA's approval of these elements was published on March 18, 2015 (80 FR 14019). For the aspects of Florida's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Florida's already approved SIP meets certain CAA requirements.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2008 Lead NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with the 1978 Lead NAAQS.

Section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below 2 and in EPA's October 14, 2011, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Lead Infrastructure SIP Guidance).

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement, prevention of significant deterioration (PSD) and new source review (NSR).3

• 110(a)(2)(D): Interstate and international transport provisions.

• 110(a)(2)(E): Adequate personnel, funding, and authority.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency Powers.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Nonattainment area plan or plan revision under part D.4

• 110(a)(2)(J): Consultation with government officials, public notification, and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

EPA is acting upon the SIP submission from Florida that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Lead NAAQS. Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.

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

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.11 EPA issued the 2011 Lead Infrastructure SIP Guidance 12 to provide states with up-to-date guidance for Lead infrastructure SIPs. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.13

LSC is extending the public comment period stated in the Federal Register notice for this rulemaking. 80 FR 21692, Apr. 20, 2015 [FR Doc. No. 2015-8951]. In that notice, LSC proposed amendments to its regulations governing transfers of LSC funds (45 CFR part 1610), subgrants to third parties (45 CFR part 1627), and cost standards and procedures (45 CFR part 1630). LSC has received requests for an extension of the comment period to allow interested parties and stakeholders additional time to develop their comments on the proposed rulemaking, including obtaining data about the potential effects of proposed changes. LSC is therefore extending the comment period for 21 days, from May 20, 2015, to June 10, 2015.