Federal Register Vol. 81, No.10,

Federal Register Volume 81, Issue 10 (January 15, 2016)

Page Range2067-2723
FR Document

81_FR_10
Current View
Page and SubjectPDF
81 FR 2261 - Sunshine Act Meeting NoticePDF
81 FR 2204 - Secretary of Energy Advisory BoardPDF
81 FR 2237 - Government in the Sunshine Act Meeting NoticePDF
81 FR 2237 - Manufacturer of Controlled Substances Registration: Cambridge Isotope LabPDF
81 FR 2223 - Meeting Notice for the President's Advisory Council on Faith-Based and Neighborhood PartnershipsPDF
81 FR 2295 - Sentencing Guidelines for United States CourtsPDF
81 FR 2218 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Semi-Annual and Final Reporting Requirements for the Older Americans Act Title IV Discretionary Grants ProgramPDF
81 FR 2161 - Order Renewing Order Temporarily Denying Export PrivilegesPDF
81 FR 2240 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection Application for Registration Under Domestic Chemical Diversion Control Act of 1993, Renewal Application for Registration Under Domestic Chemical Diversion Control Act of 1993 DEA Forms 510, 510APDF
81 FR 2217 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 2168 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From Brazil: Preliminary Affirmative Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
81 FR 2172 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Preliminary Negative Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
81 FR 2166 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Turkey: Preliminary Negative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
81 FR 2197 - Notice of Intent To Prepare an Environmental Impact Statement for Hatchery Programs Along the Oregon CoastPDF
81 FR 2189 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 2238 - Notice of Filing of Proposed Stipulation and Settlement Agreement Under The Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 2215 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Standardized Permit for RCRA Hazardous Waste Management Facilities (Renewal)PDF
81 FR 2213 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Foreign Purchaser Acknowledgement Statement of Unregistered PesticidesPDF
81 FR 2211 - Agency Information Collection Activities OMB ResponsesPDF
81 FR 2238 - Notice of Filing of Proposed Stipulation and Settlement Agreement Under the Resource Conservation and Recovery ActPDF
81 FR 2171 - Certain Iron Mechanical Transfer Drive Components From the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty InvestigationPDF
81 FR 2212 - Imidacloprid Registration Review; Draft Pollinator Ecological Risk Assessment; Notice of AvailabilityPDF
81 FR 2110 - International Fisheries; Pacific Tuna Fisheries; 2016 Commercial Pacific Bluefin Tuna Catch Limit in the Eastern Pacific OceanPDF
81 FR 2291 - CSX Transportation, Inc.-Discontinuance of Service Exemption-in Harnett County, NCPDF
81 FR 2086 - Extension of Import Restrictions Imposed on Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman PeriodsPDF
81 FR 2196 - Endangered and Threatened Species; Status Update on Preparation of Record of Decision, Mitchell Act Hatcheries Environmental Impact StatementPDF
81 FR 2291 - East Penn Railroad, LLC-Lease Exemption Containing Interchange Commitment-Norfolk Southern Railway CompanyPDF
81 FR 2214 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 2129 - Economic Development Investments for Certified Development CompaniesPDF
81 FR 2241 - Meeting of the Department of Justice's (DOJ's) National Motor Vehicle Title Information System (NMVTIS) Federal Advisory CommitteePDF
81 FR 2217 - Notice to All Interested Parties of the Termination of the Receivership of 10328, CommunitySouth Bank and Trust Easley, SCPDF
81 FR 2312 - Funding Availability Under Supportive Services for Veteran Families ProgramPDF
81 FR 2203 - Submission for OMB Review; Comment RequestPDF
81 FR 2088 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying BenefitsPDF
81 FR 2196 - Endangered Species; File No. 17225PDF
81 FR 2239 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Application for Registration of Firearms Acquired by Certain Government EntitiesPDF
81 FR 2241 - 2015 Statutory Pay-As-You-Go Act Annual ReportPDF
81 FR 2247 - In the Matter of Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 1, 2, and 3, and James A. Fitzpatrick Nuclear Power Plant; Exelon Generation Company, LLC, Nine Mile Point Nuclear Station, Units 1 and 2, and R.E. Ginna Nuclear Power Plant; Pacific Gas and Electric Company, Diablo Canyon Power Plant, Units 1 and 2; and Southern California Edison Company, San Onofre Nuclear Generating Station, Units 2 and 3, including Independent Spent Fuel Storage Installations for All FacilitiesPDF
81 FR 2198 - Procurement List; Proposed DeletionsPDF
81 FR 2160 - Proposed Information Collection; RequestPDF
81 FR 2204 - Basic Energy Sciences Advisory CommitteePDF
81 FR 2234 - Proposed Information Collection; National Park Service Common Learning PortalPDF
81 FR 2293 - Agency Information Collection Activity Under OMB ReviewPDF
81 FR 2233 - Proposed Information Collection; Case Incident Report RequestPDF
81 FR 2232 - Proposed Information Collection; National Underground Railroad Network to Freedom ProgramPDF
81 FR 2202 - Proposed Information Collection; Comment RequestPDF
81 FR 2205 - Hawks Nest Hydro, LLC; Notice of Application Tendered for Filing With the Commission and Establishing Procedural Schedule for Licensing and Deadline for Submission of Final AmendmentsPDF
81 FR 2210 - Black Bear Hydro Partners LLC; Notice of Application Tendered for Filing With the Commission and Establishing Procedural Schedule for Licensing and Deadline for Submission of Final AmendmentsPDF
81 FR 2209 - Combined Notice of Filings #1PDF
81 FR 2208 - Algonquin Power (Beaver Falls), LLC; Notice of Application Tendered for Filing With the Commission and Soliciting Additional Study Requests and Establishing Procedural Schedule for Relicensing and a Deadline for Submission of Final AmendmentsPDF
81 FR 2207 - Hawks Nest Hydro, LLC; Notice of Application Tendered for Filing With the Commission and Establishing Procedural Schedule for Licensing and Deadline for Submission of Final AmendmentsPDF
81 FR 2209 - Notice of Staff Attendance at the Midcontinent Independent System Operator, Inc. (MISO) Meetings of the Miso Competitive Retail Solution Task Team (CSRTT)PDF
81 FR 2205 - Notice Setting Deadlines To File BriefsPDF
81 FR 2206 - Cameron LNG, LLC; Notice of Schedule for Environmental Review of the Cameron LNG Terminal Expansion ProjectPDF
81 FR 2206 - Combined Notice of Filings #2PDF
81 FR 2088 - Minimum Value of Eligible Employer-Sponsored Plans and Other Rules Regarding the Health Insurance Premium Tax Credit; CorrectionPDF
81 FR 2226 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 2227 - Agency Information Collection Activities: Comment Request; Extension of an Information CollectionPDF
81 FR 2219 - Navigating the Center for Drug Evaluation and Research: What You Should Know for Effective Engagement; Public WorkshopPDF
81 FR 2243 - Notice of Public Meetings in AlaskaPDF
81 FR 2220 - Agency Information Collection Activities; Proposed Collection; Comment Request; Information To Accompany Humanitarian Device Exemption Applications and Annual Distribution Number Reporting RequirementsPDF
81 FR 2222 - How Should Liver Injury and Dysfunction Caused by Drugs Be Measured, Evaluated, and Acted Upon in Clinical Trials?PDF
81 FR 2244 - Privacy Act of 1974; Privacy Act System of RecordsPDF
81 FR 2160 - Notice of Public Meeting of the Indiana Advisory Committee To Begin Planning a Series of Public Hearings To Study Civil Rights and the School to Prison Pipeline in IndianaPDF
81 FR 2203 - National Petroleum CouncilPDF
81 FR 2203 - Environmental Management Site-Specific Advisory Board, HanfordPDF
81 FR 2215 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 2216 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 2067 - National Organic Program: Notice of Final Guidance on Substances Used in Post-Harvest Handling of Organic ProductsPDF
81 FR 2202 - Intent To Grant an Exclusive License of U.S. Government-Owned PatentsPDF
81 FR 2235 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 2219 - Advisory Committee: Vaccines and Related Biological Products Advisory Committee, RenewalPDF
81 FR 2228 - Agency Information Collection Activities: USCIS Case Status Online; Extension of an Existing Information Collection; Comment RequestPDF
81 FR 2273 - Investment Managers Series Trust, et al.; Notice of ApplicationPDF
81 FR 2261 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the Market Vectors Dynamic Put Write ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 2174 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Marine Geophysical Survey in the South Atlantic Ocean, January to March 2016PDF
81 FR 2089 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
81 FR 2226 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 2225 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
81 FR 2223 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 2224 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 2225 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 2226 - National Institute of Neurological Disorders and Stroke Notice of Closed MeetingPDF
81 FR 2270 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the DTC Custody Service Guide To Codify Its Current Procedures for Assigning a Value to Custody Service Securities for Shipping Insurance Valuation PurposesPDF
81 FR 2276 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change, and Notice of Filing and Order Granting Accelerated Approval of Amendment Nos. 1 and 3 Thereto, Relating to Auctions for Pillar, the Exchange's New Trading Technology PlatformPDF
81 FR 2268 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7015PDF
81 FR 2271 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Chapter VIII of the Pricing SchedulePDF
81 FR 2264 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a Trading License Fee for Calendar Year 2016, Effective January 4, 2016PDF
81 FR 2266 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rules 27.1, Definitions, and 27.4, Temporary Rule Governing Phase-Out of P and P/A OrdersPDF
81 FR 2275 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc.PDF
81 FR 2282 - Self-Regulatory Organizations; BATS Exchange, Inc., Notice of Filing of Proposed Rule Change To List and Trade Shares of the SPDR DoubleLine Emerging Markets Fixed Income ETF of the SSgA Active TrustPDF
81 FR 2085 - United States-Australia Free Trade AgreementPDF
81 FR 2293 - Pipeline Safety: Information Collection ActivitiesPDF
81 FR 2171 - Polyethylene Retail Carrier Bags From Thailand: Rescission of Antidumping Duty Administrative Review in Part; 2014-2015PDF
81 FR 2236 - Certain New Pneumatic Off-the-Road-Tires From China, India, and Sri Lanka; Institution of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase InvestigationsPDF
81 FR 2229 - Draft Methodology for Prioritizing Status Reviews and Accompanying 12-Month Findings on Petitions for Listing Under the Endangered Species ActPDF
81 FR 2092 - Temporary Assistance for Needy Families (TANF) Program, State Reporting On Policies and Practices To Prevent Use of TANF Funds in Electronic Benefit Transfer Transactions in Specified LocationsPDF
81 FR 2136 - Revisions to the California State Implementation Plan, Sacramento Metropolitan Air Quality Management DistrictPDF
81 FR 2200 - Consumer Advisory Board and Councils Solicitation of Applications for MembershipPDF
81 FR 2199 - Academic Research Council Solicitation of Applications for MembershipPDF
81 FR 2291 - Notice of Availability of a Draft Environmental Assessment for the City of El Paso, Texas, Commercial Zone ExpansionPDF
81 FR 2295 - Departmental Offices; Debt Management Advisory Committee MeetingPDF
81 FR 2228 - Federal Property Suitable as Facilities To Assist the HomelessPDF
81 FR 2068 - Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 ImmigrantsPDF
81 FR 2131 - Airworthiness Directives; B/E Aerospace Protective Breathing Equipment Part Number 119003-11PDF
81 FR 2218 - Notice of Availability of the Final Supplemental Draft Environmental Impact Statement for the Federal Bureau of Investigation Central Records Complex in Winchester County, VirginiaPDF
81 FR 2134 - Airworthiness Directives; SOCATA AirplanesPDF
81 FR 2084 - Amendment of Class D Airspace; Denver, COPDF
81 FR 2106 - Amendment of the Commission's Rules To Facilitate the Use of Vehicular Repeater UnitsPDF
81 FR 2658 - Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a FirearmPDF
81 FR 2090 - Approval of Missouri's Air Quality Implementation Plans; Reporting Emission Data, Emission Fees and Process InformationPDF
81 FR 2159 - Approval of Missouri's Air Quality Implementation Plans; Reporting Emission Data, Emission Fees and Process InformationPDF
81 FR 2140 - Clean Air Plans; 1-Hour and 1997 8-Hour Ozone Nonattainment Area Requirements; San Joaquin Valley, CaliforniaPDF
81 FR 2628 - Energy Conservation Program for Consumer Products: Test Procedures for Residential Furnaces and BoilersPDF
81 FR 2320 - Energy Conservation Program: Energy Conservation Standards for Residential BoilersPDF
81 FR 2111 - Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air FurnacesPDF
81 FR 2420 - Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air FurnacesPDF
81 FR 2536 - 2015 Revisions and Confidentiality Determinations for Data Elements Under the Greenhouse Gas Reporting RulePDF

Issue

81 10 Friday, January 15, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES National Organic Program: Final Guidance on Substances Used in Post-Harvest Handling of Organic Products, 2067-2068 2016-00678 Agriculture Agriculture Department See

Agricultural Marketing Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau RULES Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity with Respect to Making or Transferring a Firearm, 2658-2723 2016-00192 Army Army Department NOTICES Exclusive Licenses of U.S. Government-Owned Patents; Proposed Approvals, 2202-2203 2016-00677 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Requests for Nominations: Academic Research Council, 2199-2200 2016-00546 Consumer Advisory Board and Councils, 2200-2201 2016-00548 Children Children and Families Administration RULES Temporary Assistance for Needy Families Program: State Reporting on Policies and Practices to Prevent Use of Temporary Assistance for Needy Families Funds in Electronic Benefit Transfer Transactions in Specified Locations, 2092-2106 2016-00608 Civil Rights Civil Rights Commission NOTICES Meetings: Indiana Advisory Committee, 2160 2016-00688 Coast Guard Coast Guard RULES Drawbridge Operations: Lake Washington Ship Canal, Seattle, WA, 2089-2090 2016-00654 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 2198-2199 2016-00719 Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Semi-Annual and Final Reporting Requirements for the Older Americans Act Discretionary Grants Program, 2218-2219 2016-00762 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2202 2016-00712 Defense Department Defense Department See

Army Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2203 2016-00726
Drug Drug Enforcement Administration NOTICES Manufacturers of Controlled Substances; Registrations: Cambridge Isotope Lab, 2237-2238 2016-00782 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air Furnaces, 2420-2533 2015-33067 Energy Conservation Program for Consumer Products: Test Procedures for Residential Furnaces and Boilers, 2628-2656 2016-00040 Energy Conservation Program: Standards for Residential Boilers, 2320-2417 2016-00025 PROPOSED RULES Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air Furnaces, 2111-2129 2015-33069 NOTICES Charter Renewals: National Petroleum Council, 2203 2016-00684 Meetings: Basic Energy Sciences Advisory Committee, 2204 2016-00717 Environmental Management Site-Specific Advisory Board, Hanford, 2203-2204 2016-00682 Secretary of Energy Advisory Board, 2204-2205 2016-00854
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Missouri; Reporting Emission Data, Emission Fees and Process Information, 2090-2092 2016-00191 PROPOSED RULES 2015 Revisions and Confidentiality Determinations for Data Elements under the Greenhouse Gas Reporting Rule, 2536-2625 2015-32753 Air Quality State Implementation Plans; Approvals and Promulgations: 1-Hour and 1997 8-Hour Ozone Nonattainment Area Requirements; San Joaquin Valley, CA, 2140-2159 2016-00089 Missouri; Reporting Emission Data, Emission Fees and Process Information, 2159 2016-00190 Sacramento Metropolitan Air Quality Management District, 2136-2140 2016-00571 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2211 2016-00743 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Foreign Purchaser Acknowledgement Statement of Unregistered Pesticides, 2213-2214 2016-00744 Standardized Permit for RCRA Hazardous Waste Management Facilities, 2215 2016-00745 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 2214 2016-00732 Pollinator Ecological Risk Assessments: Imidacloprid Registration Review, 2212-2213 2016-00740 Federal Aviation Federal Aviation Administration RULES Amendment of Class D Airspace: Denver, CO, 2084-2085 2016-00305 PROPOSED RULES Airworthiness Directives: B/E Aerospace Protective Breathing Equipment Part Number 119003-11, 2131-2134 2016-00374 SOCATA Airplanes, 2134-2136 2016-00320 Federal Communications Federal Communications Commission RULES Commission's Rules to Facilitate the Use of Vehicular Repeater Units; Amendments, 2106-2110 2016-00220 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2215-2217 2016-00679 2016-00680 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: CommunitySouth Bank and Trust, Easley, SC, 2217 2016-00728 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Algonquin Power (Beaver Falls), LLC, 2208-2209 2016-00707 Black Bear Hydro Partners, LLC, 2210-2211 2016-00709 Hawks Nest Hydro, LLC, 2205-2208 2016-00706 2016-00710 Combined Filings, 2206-2207, 2209 2016-00702 2016-00708 Environmental Assessments; Availability, etc.: Cameron LNG Terminal Expansion Project; Cameron LNG, LLC, 2206 2016-00703 Staff Attendances, 2209-2210 2016-00705 Submission Deadlines: Association of Businesses Advocating Tariff Equity, et al. v. Midcontinent Independent System Operator, Inc., et al., 2205 2016-00704 Federal Motor Federal Motor Carrier Safety Administration NOTICES Environmental Assessments; Availability, etc.: El Paso, TX, Commercial Zone Expansion, 2291-2293 2016-00532 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 2217-2218 2016-00752 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2293 2016-00715 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Species: Draft Methodology for Prioritizing Status Reviews and Accompanying 12-Month Findings on Petitions, 2229-2232 2016-00616 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Information to Accompany Humanitarian Device Exemption Applications and Annual Distribution Number Reporting Requirements, 2220-2222 2016-00691 Charter Renewals: Vaccines and Related Biological Products Advisory Committee, 2219-2220 2016-00675 Meetings: How Should Liver Injury and Dysfunction Caused by Drugs Be Measured, Evaluated, and Acted Upon in Clinical Trials?, 2222-2223 2016-00690 Navigating the Center for Drug Evaluation and Research—What You Should Know for Effective Engagement; Public Workshop, 2219 2016-00694 General Services General Services Administration NOTICES Environmental Impact Statements; Availability, etc.: Federal Bureau of Investigation Central Records Complex in Winchester County, VA, 2218 2016-00330 Health and Human Health and Human Services Department See

Children and Families Administration

See

Community Living Administration

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Meetings: President's Advisory Council on Faith-based and Neighborhood Partnerships, 2223 2016-00767
Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

See

U.S. Immigration and Customs Enforcement

RULES Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, 2068-2084 2016-00478
Housing Housing and Urban Development Department NOTICES Federal Properties Suitable as Facilities to Assist the Homeless, 2228-2229 2016-00486 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2160-2161 2016-00718 Renewal of Temporary Denial of Export Privileges: Mahan Airways, Pejman Mahmood Kosarayanifard, et al., 2161-2166 2016-00760 Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

Internal Revenue Internal Revenue Service RULES Minimum Value of Eligible Employer-Sponsored Plans and Other Rules Regarding the Health Insurance Premium Tax Credit; Correction, 2088 2016-00701 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Hot-Rolled Steel Flat Products from Brazil, 2168-2170 2016-00751 Certain Hot-Rolled Steel Flat Products from the Republic of Korea, 2172-2174 2016-00750 Certain Hot-Rolled Steel Flat Products from the Republic of Turkey, 2166-2168 2016-00749 Certain Iron Mechanical Transfer Drive Components from the People's Republic of China, 2171 2016-00741 Polyethylene Retail Carrier Bags from Thailand, 2171-2172 2016-00619 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain New Pneumatic Off-the-Road-Tires from China, India, and Sri Lanka, 2236-2237 2016-00618 Meetings; Sunshine Act, 2237 2016-00831 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Drug Enforcement Administration

See

Justice Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Registration of Firearms Acquired by Certain Government Entities, 2239-2240 2016-00722 Application for Registration under Domestic Chemical Diversion Control Act, Renewal Application for Registration under Domestic Chemical Diversion Control Act, 2240 2016-00759 Proposed Stipulation and Settlement Agreement under CERCLA, 2238-2239 2016-00746 Proposed Stipulation and Settlement Agreement under the Resource Conservation and Recovery Act, 2238 2016-00742
Justice Programs Justice Programs Office NOTICES Meetings: National Motor Vehicle Title Information System Federal Advisory Committee, 2241 2016-00730 Management Management and Budget Office NOTICES 2015 Statutory Pay-As-You-Go Act Annual Report, 2241-2243 2016-00721 Marine Marine Mammal Commission NOTICES Meetings: Alaska, 2243-2244 2016-00692 NASA National Aeronautics and Space Administration NOTICES Privacy Act; Systems of Records, 2244-2247 2016-00689 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 2223-2226 2016-00648 2016-00649 2016-00650 National Institute of Neurological Disorders, 2226 2016-00647 National Institute on Aging, 2226 2016-00652 National Institute on Alcohol Abuse and Alcoholism, 2225 2016-00651 National Oceanic National Oceanic and Atmospheric Administration RULES International Fisheries; Pacific Tuna Fisheries: 2016 Commercial Pacific Bluefin Tuna Catch Limit in the Eastern Pacific Ocean, 2110 2016-00738 NOTICES Endangered and Threatened Species: Take of Anadromous Fish, 2189-2196 2016-00747 Environmental Impact Statements; Availability, etc.: Hatchery Programs along the Oregon Coast, 2197-2198 2016-00748 Mitchell Act Hatcheries, Columbia River, 2196 2016-00734 Permit Applications: Endangered Species, File No. 17225, 2196-2197 2016-00724 Takes of Marine Mammals Incidental to Specified Activities: Marine Geophysical Survey in the South Atlantic Ocean, 2174-2189 2016-00660 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Case Incident Report Request, 2233-2234 2016-00714 Common Learning Portal, 2234-2235 2016-00716 National Underground Railroad Network to Freedom Program, 2232-2233 2016-00713 National Register of Historic Places: Pending Nominations and Related Actions, 2235-2236 2016-00676 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Confirmatory Orders: Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 1, 2, and 3, and James A. Fitzpatrick Nuclear Power Plant, etc., 2247-2261 2016-00720 Meetings; Sunshine Act, 2261 2016-00868 Pension Benefit Pension Benefit Guaranty Corporation RULES Benefits Payable in Terminated Single-Employer Plans: Interest Assumptions for Paying Benefits, 2088-2089 2016-00725 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2293-2295 2016-00626 Securities Securities and Exchange Commission NOTICES Applications: Investment Managers Series Trust, et al., 2273-2275 2016-00662 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 2266-2268, 2275-2276, 2282-2291 2016-00640 2016-00641 2016-00639 NASDAQ OMX BX, Inc., 2268-2269 2016-00644 NASDAQ OMX PHLX LLC, 2271-2273 2016-00643 New York Stock Exchange LLC, 2264-2266 2016-00642 NYSE Arca, Inc., 2261-2264, 2276-2282 2016-00645 2016-00661 The Depository Trust Co., 2270-2271 2016-00646 Small Business Small Business Administration PROPOSED RULES Economic Development Investments for Certified Development Companies, 2129-2131 2016-00731 Surface Transportation Surface Transportation Board NOTICES Discontinuance of Service Exemptions: CSX Transportation, Inc., Harnett County, NC, 2291 2016-00737 Lease Exemptions Containing Interchange Commitments: East Penn Railroad, LLC from Norfolk Southern Railway Co., 2291 2016-00733 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Internal Revenue Service

RULES Import Restrictions: Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods; Extension, 2086-2088 2016-00735 United States-Australia Free Trade Agreement, 2085-2086 2016-00628 NOTICES Meetings: Debt Management Advisory Committee, 2295 2016-00527
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: USCIS Case Status Online, 2228 2016-00673 Customs U.S. Customs and Border Protection RULES Import Restrictions: Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods; Extension, 2086-2088 2016-00735 United States-Australia Free Trade Agreement, 2085-2086 2016-00628 NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: Camin Cargo Control, Inc., 2226-2227 2016-00696 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2227-2228 2016-00695 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing Guidelines for United States Courts, 2295-2312 2016-00766 Veteran Affairs Veterans Affairs Department NOTICES Funding Availability: Supportive Services for Veteran Families Program, 2312-2318 2016-00727 Separate Parts In This Issue Part II Energy Department, 2320-2417 2016-00025 Part III Energy Department, 2420-2533 2015-33067 Part IV Environmental Protection Agency, 2536-2625 2015-32753 Part V Energy Department, 2628-2656 2016-00040 Part VI Justice Department, Alcohol, Tobacco, Firearms, and Explosives Bureau, 2658-2723 2016-00192 Reader Aids

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

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

81 10 Friday, January 15, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Document Number AMS-NOP-14-0012; NOP-14-03] National Organic Program: Notice of Final Guidance on Substances Used in Post-Harvest Handling of Organic Products AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Notice of availability of final guidance.

SUMMARY:

The National Organic Program (NOP) is announcing the availability of a final guidance document intended for use by accredited certifying agents, and certified and exempt organic operations. The guidance document is entitled: Substances Used in Post-Harvest Handling of Organic Products (NOP 5023). This guidance document is intended to inform the public of NOP's current thinking on this topic.

DATES:

The final guidance document announced by this document is effective on January 19, 2016.

FOR FURTHER INFORMATION CONTACT:

Paul Lewis, Ph.D., Standards Division, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-S., Ag Stop 0268, Washington, DC 20250-0268. Telephone: (202) 720-3252, Email: [email protected]; Telephone: (202) 260-9294.

SUPPLEMENTARY INFORMATION: I. Background

On April 25, 2014, the National Organic Program (NOP) published in the Federal Register a notice of availability with request for public comment on a draft guidance document addressing the permitted substances that may be used in post-harvest handling of organic products (79 FR 22886). The NOP selected the topic for the guidance document announced through this notice in response to questions raised by certifiers and organic operations. These stakeholders requested that the NOP clarify the requirements and limitations regarding the substances permitted in post-harvest handling. The NOP also discussed and received feedback on this topic at a training session for certifiers in Portland, Oregon, in February 2011. The draft NOP guidance can be viewed on the NOP Web site at http://www.ams.usda.gov/rules-regulations/organic. The 60-day comment period closed on June 24, 2014.

NOP received 10 comments on the draft guidance document. Based upon the comments received, the NOP revised and is publishing a final guidance document on Substances Used in Post-Harvest Handling of Organic Products (NOP 5023). The guidance document includes an appendix (NOP 5023-1) where the NOP provides a complete discussion of the comments received and the rationale behind any changes made to the guidance documents.

This final guidance clarifies the USDA organic regulations regarding substances used in post-harvest handling activities such as washing, packing and storage of organic products. There is no discrete section of the National List of Allowed and Prohibited Substances (National List) (7 CFRs 205.600 through 205.607) designated for substances used in these post-harvest handling activities. Instead, the substances allowed for use in post-harvest handling appear in different sections of the National List (e.g., section 205.601 for crop production, section 205.605 for processing), or are nonsynthetic substances, and are therefore not included on the National List for crop production. This has led to confusion about the point at which crop production for unprocessed commodities ends, when processing starts, and which substances may be used for post-harvest activities that may occur on farm or in a processing facility.

This final guidance provides information to all USDA-accredited certifying agents (certifiers) and certified and exempt organic operations about substances that may be used in post-harvest handling of organic products. More specifically, this final guidance clarifies: (1) What substances may be used for post-harvest handling; (2) the difference between “post-harvest handling of raw agricultural commodities” and “further processing”; and (3) the regulatory requirements for facility pest management. This guidance also defines post-harvest substances and post-harvest handling.

This final guidance is available from the NOP through “The Program Handbook: Guidance and Instructions for Accredited Certifying Agents (ACAs) and Certified Operations”. This Handbook provides those who own, manage, or certify organic operations with guidance and instructions that can assist them in complying with the USDA organic regulations. The current edition of the Program Handbook is available online at http://www.ams.usda.gov/rules-regulations/organic/handbook.

II. Significance of Guidance

This final guidance document is being issued in accordance with the Office of Management and Budget (OMB) Bulletin on Agency Good Guidance Practices (GGPs) (January 25, 2007, 72 FR 3432-3440).

The purpose of GGPs is to ensure that program guidance documents are developed with adequate public participation, are readily available to the public, and are not applied as binding requirements. This final guidance represents NOP's current thinking on the topic. It does not create or confer any rights for, or on, any person and does not operate to bind the NOP or the public. Guidance documents are intended to provide a uniform method for operations to comply that can reduce the burden of developing their own methods and simplify audits and inspections. Alternative approaches that can demonstrate compliance with the Organic Foods Production Act (OFPA), as amended (7 U.S.C. 6501-6522), and its implementing regulations are also acceptable. As with any alternative compliance approach, NOP strongly encourages industry to discuss alternative approaches with NOP before implementing them to avoid unnecessary or wasteful expenditures of resources and to ensure the proposed alternative approach complies with the Act and its implementing regulations.

III. Electronic Access

Persons with access to Internet may obtain the final guidance at the USDA Agricultural Marketing Service Web site at http://www.ams.usda.gov/rules-regulations/organic. Requests for hard copies of the draft guidance documents can be obtained by submitting a written request to the person listed in the ADDRESSES section of this Notice.

Authority:

7 U.S.C. 6501-6522.

Dated: January 11, 2016. Erin Morris, Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2016-00678 Filed 1-14-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 204, 214, 248, and 274a [CIS No. 2515-11; DHS Docket No. USCIS-2012-0005] RIN 1615-AC00 Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Department of Homeland Security (DHS) is revising its regulations affecting: highly skilled workers in the nonimmigrant classifications for specialty occupation from Chile, Singapore (H-1B1), and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification. DHS anticipates that these changes to the regulations will benefit these highly skilled workers and CW-1 nonimmigrant workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

DATES:

This final rule is effective February 16, 2016.

FOR FURTHER INFORMATION CONTACT:

Paola Rodriguez Hale, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2141. Contact telephone number is (202) 272-8377.

SUPPLEMENTARY INFORMATION:

DHS is revising its regulations affecting: (1) Highly skilled workers in the nonimmigrant classifications for specialty occupation from Chile, Singapore (H-1B1), and Australia (E-3); (2) the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and (3) nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, in this final rule, DHS is amending its regulations to include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer, and to clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.

DHS is also amending the regulations to provide H-1B1 and principal E-3 nonimmigrants with authorization for continued employment with the same employer if the employer has timely filed for an extension of the nonimmigrant's stay. DHS is providing this same authorization for continued employment for CW-1 nonimmigrants if a petitioner has timely filed a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, or successor form requesting an extension of stay.

In addition, DHS is updating the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes will harmonize and align the regulations for principal E-3, H-1B1, and CW-1 nonimmigrant classifications with the existing regulations for other, similarly situated nonimmigrant classifications.

Finally, DHS is expanding the current list of initial evidence for EB-1 outstanding professors and researchers to allow petitioners to submit evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i). This will harmonize the regulations for EB-1 outstanding professors and researchers with certain employment-based immigrant categories that already allow for submission of comparable evidence.

Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Legal Authorities C. Summary of the Major Provisions of the Regulatory Action D. Cost and Benefits II. Background A. Current Framework B. Proposed Rule C. Final Rule III. Public Comments on the Proposed Rule A. Summary of Public Comments B. General Comments 1. Support 2. Oppose C. Employment Authorization for E-3 and H-1B1 Nonimmigrants 1. Employment authorization incident to status with a specific employer 2. Continued employment authorization while a timely extension of stay request is pending D. Employment Authorization for CW-1 Nonimmigrants While a Timely Filed Extension of Stay Request is Pending E. Application Requirement for E-3 and H-1B1 Nonimmigrants Requesting Changes of Status or Extensions of Stay F. Comparable Evidence for EB-1 Outstanding Professors and Researchers 1. Support 2. Oppose 3. Suggestion for other evidence G. Miscellaneous Comments IV. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563 1. E-3 and H-1B1 nonimmigrant workers 2. CW-1 nonimmigrant workers 3. EB-1 outstanding professors and researchers B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Small Business Regulatory Enforcement Fairness Act of 1996 E. Executive Order 13132 F. Executive Order 12988 G. Paperwork Reduction Act I. Executive Summary A. Purpose of the Regulatory Action

DHS is amending its regulations in several ways to improve the programs serving the principal E-3, H-1B1, and CW-1 nonimmigrant classifications and the EB-1 immigrant classification for outstanding professors and researchers. These changes will harmonize the regulations governing these classifications with regulations governing similar visa classifications and remove unnecessary hurdles that have placed principal E-3, H-1B1, CW-1 and certain EB-1 workers at a disadvantage when compared to similarly situated workers in other visa classifications. DHS believes this rule also best achieves our goal of addressing unwarranted disparities involving continued employment authorization among and within particular nonimmigrant classifications.

B. Legal Authorities

Sections 103(a) and 214(a)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a) and 8 U.S.C. 1184(a)(1), authorize the Secretary of Homeland Security (Secretary) to administer and enforce the immigration and nationality laws and to establish by regulation the time and conditions of admission of nonimmigrants. See also section 451 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, (6 U.S.C. 271) (describing responsibilities with respect to immigration services and adjudications). Further, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary's authority to extend employment authorization to individuals who are not citizens or nationals of the United States. Finally, title VII of the Consolidated Natural Resources Act of 2008 (CNRA) extends U.S. immigration laws to the CNMI and authorized the CW nonimmigrant classification. Public Law 110-229, 122 Stat. 754, 853 (2008) (revising 48 U.S.C. 1806).

C. Summary of the Major Provisions of the Regulatory Action

On May 12, 2014, DHS published a proposed rule to amend regulations governing filing procedures and work authorization for principal E-3 and H-1B1 nonimmigrants (8 CFR 214.1(c)(1) and 8 CFR 248.3(a) with respect to filing procedures and 8 CFR 274a.12(b)(9) and 8 CFR 274a.12(b)(25) with respect to work authorization), continued work authorization for principal E-3, H-1B1, and CW nonimmigrants (8 CFR 274a.12(b)(20)), and evidentiary requirements for EB-1 outstanding professors and researchers (8 CFR 204.5(i)(3)(ii)). By proposing this rule, DHS intended to remove current regulatory obstacles that may cause unnecessary disruptions to petitioning employers' productivity. DHS also intended to remove obstacles for these workers to remain in or enter the United States and to treat them in the same way as others under similar classifications are treated. See Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, 79 FR 26870 (May 12, 2014). After careful consideration of public comments, DHS is adopting the proposed regulatory amendments without change.

D. Cost and Benefits

This final rule will not impose any additional costs on employers, workers, or any governmental entity. Changing the employment authorization regulations for H-1B1 and principal E-3 nonimmigrants will make those regulations consistent with the regulations of other similarly situated nonimmigrant worker classifications, which will provide qualitative benefits. In this final rule, DHS also amends its regulations to authorize continued employment for up to 240 days for H-1B1, principal E-3, and CW-1 nonimmigrant workers whose status has expired, provided that the petitioner timely filed the requests for extensions of stay with U.S. Citizenship and Immigration Services (USCIS). Such amendment will minimize the potential for employment disruptions for U.S. employers of H-1B1, principal E-3, and CW-1 nonimmigrant workers. Finally, this final rule may assist U.S. employers that recruit EB-1 outstanding professors and researchers by expanding the range of evidence that they may provide to support their petitions. A summary of the costs and benefits of the changes made by this rule is presented in Table 1.

Table 1—Summary of Costs and Benefits Costs Change Benefits and avoided costs E-3, H-1B1, and CW-1 Nonimmigrants None Continued employment up to 240 days for an H-1B1, principal E-3 or CW-1 nonimmigrant workers while a timely filed request to extend stay is pending Avoided cost of lost productivity for U.S. employers of principal E-3, H-1B1, and CW-1 nonimmigrant workers and avoided lost wages by the nonimmigrant workers. Not quantified. Will provide equity for principal E-3 and H-1B1 nonimmigrants relative to other employment-based nonimmigrants listed in 8 CFR 274a.12 (b)(20), and provide equity for CW-1 nonimmigrants whose extension request is filed by the same employer relative to other CW-1 nonimmigrants who change employers. Qualitative benefit. Clarify that principal E-3 and H-1B1 nonimmigrants are work authorized incident to status, and specify current filing procedures for requesting change of status or extension of stay. Ensures the regulations are consistent with statutory authority, and codifies current practice. Qualitative benefit. EB-1 Outstanding Professors and Researchers May help U.S. employers recruit EB-1 outstanding professors and researchers.
  • Not quantified.
  • Allow for the submission of comparable evidence to that listed in 8 CFR 204.5(i)(3)(i)(A)-(F) to establish that the EB-1 outstanding professor or researcher is recognized internationally as outstanding in his or her academic field Will provide equity for EB-1 outstanding professors and researchers relative to certain employment-based immigrants listed in 8 CFR 204.5.
  • Qualitative benefit.
  • II. Background A. Current Framework

    The Immigration Act of 1990 (IMMACT90), among other things, reorganized immigrant classifications and also created new employment-based immigrant classifications. See Public Law 101-649, 104 Stat. 4978. The new employment-based immigration provisions were intended to cultivate a more competitive economy by encouraging skilled individuals to immigrate to the United States to meet our economic needs.1 Those IMMACT90 provisions addressed the need of American businesses for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel could not be found. See Employment-Based Immigrants, 56 FR 30703 (July 5, 1991). Lawmakers estimated the need for highly skilled workers based on an increasing skills gap in the current and projected U.S. labor pools. Id.

    1See Statement by President upon Signing of the Immigration Act of 1990, 1990 U.S.C.C.A.N 6801-1 (Nov. 29, 1990), available at http://www.presidency.ucsb.edu/ws/index.php?pid=19117#ixzz1KvDlYZql; see also H.R. Rep. No. 101-723(I), at 6721 (1990) (“[I]mmigration can and should be incorporated into an overall strategy that promotes the creation of the type of workforce needed in an increasingly competitive global economy without adversely impacting on the wages and working conditions of American workers.”).

    American businesses continue to need highly skilled nonimmigrant and immigrant workers, and the U.S. legal immigration system can be improved by removing regulatory barriers to lawful employment of these workers through a system that reflects our diverse values and needs.2 Attracting and retaining highly skilled workers is critical to sustaining our Nation's global competitiveness. By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.3 Governments seeking to make the most of highly skilled nonimmigrants and immigrants face the challenge of identifying, attracting, and retaining those with the best prospects for success.4

    2See White House, Building a 21st Century Immigration System, May 2011, at 3 and 9, available at http://www.whitehouse.gov/sites/default/files/rss_viewer/immigration_blueprint.pdf.

    3See White House, Building a 21st Century Immigration System, May 2011, at 1, available at http://www.whitehouse.gov/sites/default/files/rss_viewer/immigration_blueprint.pdf.

    4See Demetrios G. Papademetriou and Madeleine Sumption, Attracting and Selecting from the Global Talent Pool, Policy Challenges, Migration Policy Inst., Sept. 2013, at 4, available at http://www.migrationpolicy.org/research/attracting-and-selecting-global-talent-pool-%E2%80%94-policy-challenges.

    B. Proposed Rule

    On May 12, 2014, DHS published a proposed rule in the Federal Register at 79 FR 26870, proposing to:

    • Clarify that principal E-3 and H-1B1 nonimmigrants are authorized to work for the specific employer listed in their petition without requiring separate approval for work authorization from USCIS (8 CFR 274a.12(b)(25) and 8 CFR 274a.12(b)(9));

    • Authorize continued employment authorization for CW-1, principal E-3, and H-1B1 nonimmigrants with pending, timely filed extension of stay requests (8 CFR 274a.12(b)(20));

    • Update the regulations describing the filing procedures for extension of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications (8 CFR 214.1(c)(1) and 8 CFR 248.1(a)); and

    • Allow a petitioner who wants to employ an EB-1 outstanding professor or researcher to submit evidence comparable to the evidence otherwise described in 8 CFR 204.5(i)(3)(i), which may demonstrate that the beneficiary is recognized internationally as an outstanding professor or researcher.

    C. Final Rule

    Consistent with the vision of attracting and retaining foreign workers, this final rule removes unnecessary obstacles for principal E-3 and H-1B1 highly skilled workers and CW-1 nonimmigrant workers to continue working in the United States, and for EB-1 outstanding professors and researchers to seek admission as immigrants. For example, under current regulations, H-1B1, CW-1, and principal E-3 nonimmigrants are not included in the regulations that authorize continued employment while a timely filed extension of stay request is pending. The regulations at 8 CFR 274a.12(b)(20) authorize foreign nationals in specific nonimmigrant classifications to continue employment with the same employer for a 240-day period beyond the authorized period specified on the Arrival-Departure Record, Form I-94, as long as a timely request for an extension of stay is filed. This means that these individuals can continue to work with the specific employer listed in their petition, even after their authorized stay expires, as long as their extension of stay request is still pending. Because Congress created the E-3, H-1B1, and CW-1 nonimmigrant classifications after 8 CFR 274a.12(b)(20) was effective, these nonimmigrant workers are not included in this provision and cannot continue to work with the same employer beyond the existing authorization while waiting for USCIS to adjudicate an extension of stay request. DHS is amending its regulations at 8 CFR 274a.12(b)(20) to give H-1B1, CW-1, and principal E-3 nonimmigrants the same treatment as other, similarly situated nonimmigrants, such as H-1B, E-1, and E-2 nonimmigrants.

    Moreover, E-3 and H-1B1 nonimmigrants are not listed in the regulations describing the filing procedures for extension of stay and change of status requests. Although the form instructions for H-1B1 and principal E-3 extension of stay and change of status requests (Instructions for Petition for a Nonimmigrant Worker, Form I-129) were updated to include H-1B1 and principal E-3 nonimmigrants when these categories were first established, the regulations were not. In this final rule, DHS is amending the regulations to add H-1B1 and principal E-3 nonimmigrants to the list of nonimmigrants that may extend their stay or change their status in the United States.

    In addition, current regulations do not designate H-1B1 nonimmigrants and principal E-3 as authorized to accept employment with a specific employer incident to status, although such nonimmigrants are so authorized by statute. See INA section 212(t)[1st], 8 U.S.C. 1182(t)[1st], (noting the statutory requirements an employer must fulfill to petition for an H-1B1 or E-3 nonimmigrant); see also INA sections 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii), 101(a)(15)(H)(1)(b)(1), 8 U.S.C. 1101(a)(15)(H)(1)(b)(1), and 214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C) (requiring “intending employers” of certain H-1B1 nonimmigrants to file an attestation with the Secretary of Labor). The E-3 and H-1B1 nonimmigrant classifications were established by statute in 2005 and 2003, respectively. See REAL ID Act of 2005, Public Law 109-13, section 501, 119 Stat. 231; United States-Singapore Free Trade Agreement Implementation Act, Public Law 108-78, section 402, 117 Stat. 948 (2003); United States-Chile Free Trade Agreement Implementation Act, Public Law 108-77, sections 402-404, 117 Stat. 909 (2003). Since that time, the DHS employment authorization regulations at 8 CFR 274a.12 have not been updated to include principal E-3 and H-1B1 nonimmigrants as foreign nationals authorized to accept employment with a specific employer, incident to status, in the United States as designated by statute.

    Finally, the language of the current EB-1 regulations for outstanding professors and researchers may not fully encompass other types of evidence that may be comparable, such as evidence that the professor or researcher has important patents or prestigious peer-reviewed funding grants. In this final rule, DHS is modifying the regulations describing permissible initial evidence for outstanding professors and researchers to allow a petitioner to submit evidence that is comparable to the currently accepted evidence listed in 8 CFR 204.5(i)(3)(i) to demonstrate that such beneficiaries are recognized internationally as outstanding in their academic areas. See INA section 203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B). A petitioner may submit such evidence instead of, or in addition to, the currently accepted evidence described under 8 CFR 204.5(i)(3)(i), as long as the petitioner establishes that the evidence is comparable to those listed under 8 CFR 204.5(i)(3)(i)(A)-(F) and the standards in 8 CFR 204.5(i)(3)(i) do not readily apply. This change provides greater flexibility for outstanding professors and researchers because the petitioner will no longer be limited to the list of initial evidence. Finally, these changes will further the goal of removing unnecessary obstacles for these workers to seek admission to the United States as an immigrant.

    In preparing this final rule, DHS considered all the public comments received and all other materials contained in the docket. This final rule adopts the regulatory amendments set forth in the proposed rule without substantive change. The rationale for the proposed rule and the reasoning provided in its background section remain valid with respect to these regulatory amendments. Section II.B above and this section each describe the changes that are the focus of this rulemaking. This final rule does not address a number of comments that DHS considered beyond the scope of this rulemaking because the comments requested changes to the regulations that DHS had not proposed and that commenters could not have reasonably anticipated that DHS would make. Such comments include suggestions for expanding premium processing services and for providing expedited processing for certain family-based petitions, travel while an application for an adjustment of status is pending, re-entry permits, translations, grace periods, specific comments in reference to another DHS rulemaking 5 , numerical per-country limits, obligations to hire U.S. citizens first, or questions on a variety of CNMI-specific topics (for example, changes to CW-1 validity periods, CW-1 reentry permits, the reduction of CW-1 nonimmigrant workers, changes to USCIS processing of petitions for CW-1 workers, and suggestions for waivers of occupational certifications). Although DHS has carefully reviewed each of these comments, DHS considers these comments to be out-of-scope for the reasons stated, and will not take further action on these comments in connection with this specific rulemaking proceeding. All comments and other docket material are available for viewing at the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number USCIS-2012-0005.

    5 These comments were forwarded to the appropriate docket and considered, as appropriate, in drafting the relevant regulation.

    III. Public Comments on the Proposed Rule A. Summary of Public Comments

    In response to the proposed rule, DHS received 38 comments during the 60-day public comment period. Commenters included individuals, employers, workers, attorneys, nonprofit organizations, and one business organization.

    While opinions on the proposed rule varied, a clear majority of the commenters supported the proposed changes in the rule. Specifically, supporters of the proposed rule welcomed the proposed employment authorization changes for principal E-3, H-1B1, and CW-1 nonimmigrants; the proposed update to the regulations clarifying the application requirements for E-3 and H-1B1 nonimmigrants requesting changes of status or extensions of stay; and the comparable evidence provision for EB-1 outstanding professors and researchers. Several commenters supported the comparable evidence provision and suggested additional evidence for DHS to consider when evaluating eligibility for EB-1 outstanding professors and researchers. Overall, the commenters supported DHS's efforts to harmonize the regulations to benefit highly skilled workers and CW-1 nonimmigrant workers and to remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers.

    Some commenters stated general opposition to the proposed rule, but did not offer any specific alternatives or suggestions relating to the proposals outlined in this rulemaking. Another commenter stated that the changes proposed with respect to EB-1 outstanding professors and researchers would be insufficient, and proposed a “point based system” instead.

    DHS has reviewed all of the public comments received in response to the proposed rule, and responds to the issues raised by the comments below. The DHS responses are organized by subject area.

    B. General Comments 1. Support

    Multiple commenters provided general support for all the proposed changes in rule. One supporter stated that the proposed regulatory amendments will benefit many nonimmigrants. Another supporter indicated that the proposed changes will add to the much-needed math, science, and technology pool of workers in the United States. One commenter noted the need for regulatory action in order to attract and retain workers, and supported the ongoing efforts to harmonize the rules that are applicable to similarly situated visa categories and bring them in line with actual agency practice. This same commenter added that the proposed changes will provide uniformity and predictability for U.S. employers and their employees and will enhance compliance at virtually no cost to DHS. Another commenter also underscored the importance of removing unnecessary regulatory barriers to improve the ability of U.S. higher education institutions to attract and retain talented and sought-after professionals. Some commenters supported the changes, but did not discuss perceived benefits. One commenter requested DHS to finalize the rule quickly.

    2. Oppose

    One commenter expressed general opposition to this rulemaking, but did not cite any specific provision or offer any specific alternatives or suggestions relating to the proposals outlined in this rulemaking. Another commenter opposed having temporary worker programs, in general, but did not offer any specific alternatives that would fall within the scope of this rule. DHS has not changed the final rule in response to these comments.

    C. Employment Authorization for E-3 and H-1B1 Nonimmigrants 1. Employment Authorization Incident to Status With a Specific Employer

    Three commenters supported the proposal to add the H-1B1 and principal E-3 classifications to the list of nonimmigrants authorized to work incident to status with a specific employer. They stated that the proposed change reflects the current practice, which allows work authorization based on approval of the [nonimmigrant] classification, but does not require a separate application for employment authorization. Therefore, the proposed change will produce consistency between current practice and regulatory language.

    One commenter recommended that DHS amend the regulations to list B-1 nonimmigrant household employees in 8 CFR 274a.12(b) as authorized for employment with a specific employer incident to status. The commenter also recommended that DHS amend 8 CFR 274a.12(a) to include spouses of L-1, E-1, and E-2 nonimmigrants in the categories of individuals who are authorized for employment incident to status. DHS has determined that expansion of employment authorization beyond the classifications identified in the proposed rule is not appropriate at this time, and it has therefore not included such an expansion in this final rule. DHS did not provide notice to the public or invite public comment on proposals to make changes to current employment authorization policies and procedures affecting these classes of nonimmigrants. For these reasons, DHS is not including the recommended expansion of 8 CFR 274a.12(a) or 8 CFR 274a.12(b) for these particular nonimmigrants in this final rule.

    DHS appreciates commenters' support for the proposal to add the H-1B1 and principal E-3 classifications to the list of nonimmigrants authorized to work incident to status with a specific employer. The INA describes the employment of E-3 and H-1B1 nonimmigrants with a specific, petitioning employer as the very basis for their presence in the United States. See INA section 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii); INA section 101(a)(15)(H)(i)(b1), 8 U.S.C. 1101(a)(15)(H)(i)(b1). Similarly situated nonimmigrants, such as H-1B nonimmigrants, are classified in the regulations as employment authorized incident to status with a specific employer. See, e.g., 8 CFR 274a.12(b)(9). However, after statutory enactment of the E-3 and H-1B1 nonimmigrant categories, the provisions in 8 CFR 274a.12(b) were not updated to include principal E-3 and H-1B1 nonimmigrants. Therefore, in this final rule, DHS will update its regulations and adopt, without change, the proposed provision adding principal E-3 and H-1B1 nonimmigrants to the list of nonimmigrants authorized to work for the specific employer listed in their petition. Specifically, DHS is adding a new provision at 8 CFR 274a.12(b)(25) to include principal E-3 nonimmigrants in the list of foreign nationals who are employment authorized incident to status with a specific employer. DHS is also amending 8 CFR 274a.12(b)(9) to include the H-1B1 nonimmigrant classification as employment authorized incident to status with a specific employer.

    2. Continued Employment Authorization While a Timely Extension of Stay Request Is Pending

    DHS received multiple comments regarding the provision authorizing the continued employment of principal E-3 and H-1B1 nonimmigrants. Most of these comments supported the provision to authorize the continued employment for E-3 and H-1B1 nonimmigrants with timely filed, pending extension of stay requests. One commenter explained that while employers file extension requests several months prior to the expiration of the workers' nonimmigrant status, unexpected processing delays can prevent the extension requests from being approved before such status expires. In turn, the nonimmigrant employees must stop working, causing serious disruptions to both the employers and their nonimmigrant workers. The commenters further stated that the current lack of continued work authorization results in lost wages to employees and loss in productivity to employers. The commenters noted that the continued employment authorization period, which may last up to 240 days, will protect against such interruptions by ensuring that U.S. employers who employ individuals in the E-3 and H-1B1 nonimmigrant classifications experience as little disruption as possible in the employment of their workers. These commenters therefore welcomed the proposed continued employment authorization because it will minimize disruption to employers and thereby promote economic growth. These commenters also supported the continued employment authorization proposal because it would harmonize the regulations applicable to E-3 and H-1B1 nonimmigrants with regulations applicable to similarly situated nonimmigrants. For example, one of these commenters noted that this change would allow colleges and universities to treat their similarly situated employees in a fair and consistent manner. One of these commenters also stated that the proposed change would substantially aid in attracting and retaining these workers.

    Additionally, one commenter supported the proposed E-3 continued work authorization because comparable eligibility for continued work authorization for H-1B nonimmigrants has been extremely helpful in allowing the commenter's current tenure-track H-1B faculty, researchers, and staff to continue employment while USCIS is processing H-1B extension requests, and would permit similarly situated E-3 employees the same benefit. DHS appreciates the support from the public for this proposed provision. The potential gap in work authorization from unanticipated processing delays can burden both employers and employees alike. DHS also believes it is important to provide employers of H-1B1 and E-3 nonimmigrants the benefits that accrue from the predictability that currently is available to employers of nonimmigrants in similar employment-based nonimmigrant classifications, who file timely requests for extensions of stay with the same employers. Therefore, DHS has determined that it will adopt this provision without change, thereby automatically extending employment authorization to principal E-3 and H-1B1 nonimmigrants with timely filed, pending extension of stay requests.

    One commenter recommended expanding the 240-day rule to cover Q-1 nonimmigrants. The commenter stated that, as with other nonimmigrant classifications, government error can delay approval, leading to serious business disruptions to the employer and adverse consequences to the workers through no fault of their own.

    DHS has determined that expansion of continued employment authorization beyond the classifications identified in the proposed rule is not appropriate at this time, and it has therefore not included such an expansion in this final rule. This suggestion is outside the scope of this rulemaking, which did not make any proposals or invite public comment with respect to Q-1 nonimmigrants. Therefore, in this final rule, DHS will update its regulations at 8 CFR 274a.12(b)(20) and adopt, without change, the proposed provision to authorize continued employment authorization for principal E-3 and H-1B1 nonimmigrants with pending, timely filed extension of stay requests.

    D. Employment Authorization for CW-1 Nonimmigrants While a Timely Filed Extension of Stay Request Is Pending

    Six commenters supported the provision for automatic employment authorization for CW-1 nonimmigrant workers with timely filed, pending extension of stay requests. One commenter explained that while employers file extension requests several months prior to the expiration of the workers' nonimmigrant status, unexpected processing delays can prevent the extension requests from being timely approved and cause serious disruptions to employers and nonimmigrants. Another commenter remarked that current adjudication delays for CW-1 nonimmigrant workers are burdensome on the beneficiaries and on the local economy, and therefore urged DHS to adopt the proposed continued work authorization provision for CW-1 nonimmigrant workers. Commenters commonly stated that the potential lack of work authorization due to a processing delay results in serious disruption to both an employer's business and to the employee's life. The commenters noted that the 240-day continued employment authorization would protect against such interruptions by ensuring that U.S. employers of CW-1 nonimmigrants experience minimal disruption in the continued employment of their workers. One commenter stated that this proposed change would alleviate fear among employers and workers of interruptions in employment resulting from a lack of continued work authorization. Finally, one commenter stated that the proposed change would provide equity for CW-1 nonimmigrants by ensuring that they are afforded the same treatment as other similarly situated individuals.

    DHS appreciates the support from the public for this proposed provision. The disruption of employment can create a burden for both employers and employees. As a matter of equity, it is also important to ensure that CW-1 nonimmigrants who are waiting for USCIS to adjudicate their extension of stay requests with the same employer also benefit from the continued employment authorization available to other CW-1 nonimmigrants who change employers or an employee under the previous CNMI immigration system. Current regulations for the continued employment of CW-1 nonimmigrant workers are also inconsistent. Specifically, the regulations currently only provide continued work authorization for CW-1 nonimmigrant workers seeking to change to a new employer, including a change in employer resulting from early termination, and not to CW-1 nonimmigrants seeking an extension of stay with the same employer. 8 CFR 214.2(w)(7). This disparity may serve as an incentive for CW-1 nonimmigrant workers to change employers just to maintain continued employment authorization, which will inconvenience the CW-1 nonimmigrant worker's current employer who might lose the worker to another employer.

    One commenter strongly supported this proposed change and noted that various employers previously sought to have a continuing work authorization provision included in the initial CW regulations without success. The commenter stated that the DHS response to this request then was that such provision was not authorized by the CNRA.6

    6See Public Law 110-229, 122 Stat. 754, 853 (2008). Title VII of the CNRA (codified, in relevant part, at 48 U.S.C. 1806(d)) extends U.S. immigration laws to the CNMI.

    DHS notes that the interim rule amending 8 CFR 214.2(w) to create the CW classification published on October 27, 2009, and provided a 30-day comment period.7 On December 9, 2009, DHS published a notice in the Federal Register reopening and extending the public comment period for an additional 30 days.8 The commenter did not indicate whether the commenter submitted the suggestion for the continued employment authorization provision in response to either of those comment periods. However, DHS did receive post-publication correspondence requesting continued employment authorization for workers with pending extensions.9 DHS responded to these post publication correspondence by stating that CW-1 nonimmigrants do not have continuing employment authorization while an extension of stay petition is pending. In that correspondence, DHS noted that it was not in the position to provide such authorization without a change to the applicable regulations.10 Although DHS believes that its implementing CW regulations are consistent with congressional intent, it subsequently proposed improvements to the regulations to permit continued employment authorization during an extension of stay request through this notice and rulemaking, pursuant to its authority under the INA and the CNRA to implement such regulations.11

    7See Commonwealth of the Northern Mariana Islands Transitional Worker Classification, 74 FR 55094 (Oct. 27, 2009).

    8See Commonwealth of the Northern Mariana Islands Transitional Worker Classification; Reopening the Public Comment Period, 74 FR 64997 (Dec. 9, 2009).

    9See Joint Letter to Alejandro Mayorkas, USCIS Director, from the Saipan Chamber of Commerce, the Hotel Association of the Northern Mariana Islands and the Society for Human Resource Management CNMI (Dec. 20, 2012).

    10See Letter from Alejandro Mayorkas, USCIS Director, to the Saipan Chamber of Commerce (March 7, 2013).

    11See Section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and INA 103(a), 8 U.S.C. 1103(a) (authorizes the Secretary to administer and enforce the immigration and nationality laws); INA 214(a), 8 U.S.C. 1184(a) (authorizes the admission of nonimmigrants under such conditions as the Secretary may prescribe by regulation); INA 274A(h)(3)(B) (recognizes the Secretary's authority to extend employment to individuals who are not citizens or nationals of the United States); Public Law 110-229, 122 Stat. 754, 853 (2008) (extending U.S. immigration laws to the CNMI).

    One of the commenters also supported the proposed change because it will help both employers and employees in the CNMI by providing employers with more time to file extension requests and by allowing employees to remain in lawful work-authorized status while awaiting the adjudication of the extension requests filed on their behalf. DHS appreciates the support for the continued work authorization provision for CW-1 nonimmigrants. The regulatory changes aim to provide both the employer and employee with continued employment when an employer files a timely request for an extension of stay for the CW-1 nonimmigrant worker. However, this new provision does not change the filing requirements or allot more time for employers to file extension requests. Under 8 CFR 214.2 (w)(12)(ii), an employer may file up to 6 months before it actually needs the employee's services, and this rulemaking does not change this filing requirement. Instead, this rulemaking provides a mechanism that automatically extends employment authorization, for a period of up to 240 days, while the employer's timely filed, extension of stay request remains pending.

    One commenter proposed allowing an employee who transfers to another employer to continue to work pending the adjudication of the new petition with the prospective employer. DHS's proposed rule did not suggest continued work authorization for CW-1 nonimmigrant workers seeking a change of employment because DHS regulations already allow continued work authorization for changes of employment so long as certain requirements are met. As described above, under 8 CFR 214.2(w)(7), a CW-1 nonimmigrant worker may work for a prospective new employer after the prospective employer files a non-frivolous Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, for new employment. The employer must file the petition for new employment to classify the alien as a CW-1 nonimmigrant, before the CW-1 nonimmigrant worker's authorized period of stay expires. The CW-1 nonimmigrant worker must not have worked without authorization in the United States since being admitted. If the petitioner and CW-1 nonimmigrant worker meet these conditions, then employment authorization will continue until DHS adjudicates the new petition.

    One commenter proposed allowing a terminated employee to continue to work without interruption, subject to certain conditions. DHS's proposed rule did not suggest continued work authorization for terminated CW-1 nonimmigrant workers because USCIS regulations already allow for continued work authorization for terminated CW-1 nonimmigrant workers under certain circumstances. Under 8 CFR 214.2(w)(7)(v), a terminated CW-1 nonimmigrant worker who has not otherwise violated the terms and conditions of his or her status may work for a prospective new employer after the prospective employer files a non-frivolous Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, for new employment. However, the new employer must file the Petition for a Nonimmigrant Worker, Form I-129CW, within a 30-day period after the date of termination. Employment authorization then continues until DHS adjudicates the new petition.

    While the commenters supported the continued employment authorization for CW-1 nonimmigrant workers, they also offered specific suggestions regarding various aspects of the CW-1 transitional worker program. One commenter remarked that the continued work authorization provision merely provides a temporary solution to meet the needs of the local investors, and that a permanent immigration status is necessary. The commenter encouraged the immediate passage of U.S. Senate bill S. 744 as a permanent solution to this CNMI foreign worker situation. Another commenter suggested that foreign workers in the CNMI should be provided with a “better” immigration status. The rulemaking focused on continued employment authorization for certain CW-1s with timely filed extension of stay requests. The CW program as a whole was not a subject of this rulemaking. These comments are outside the scope of this rulemaking.

    DHS has determined that it will adopt this provision without change, thereby automatically extending employment authorization to CW-1 nonimmigrants who have timely filed, pending extension of stay requests for the same employer. Specifically, DHS will add the CW-1 nonimmigrant classification to the list of employment-authorized nonimmigrant classifications, at 8 CFR 274a.12(b)(20), that receive an automatic extension of employment authorization of up to 240 days while the employer's timely filed extension of stay requests remain pending. This will ensure that the CW nonimmigrants are permitted continued employment authorization based on both pending change of employers requests and pending extension of stay requests.

    E. Application Requirement for E-3 and H-1B1 Nonimmigrants Requesting Changes of Status or Extensions of Stay

    DHS only received one comment on the proposal to add principal E-3 and H-1B1 nonimmigrants to the list of nonimmigrant classifications that must file a petition with USCIS to request an extension of stay or change of status. The commenter stated that the proposed changes, if adopted, will go far to enable initial and uninterrupted continued employment of H-1B1 and E-3 nonimmigrants. The commenter added that the changes create equity for these nonimmigrant categories as compared to other similar nonimmigrant categories for specialty workers. For reasons previously stated, DHS will adopt this provision without change. Specifically, DHS will amend 8 CFR 214.1(c)(1) and 8 CFR 248.3(a) to add the E-3 and H-1B1 nonimmigrant classifications to the list of nonimmigrant classifications that must file a petition with USCIS to request an extension of stay or change of status. This updates the regulations so they conform to the filing procedures described in the form instructions.

    F. Comparable Evidence for EB-1 Outstanding Professors and Researchers

    DHS received a number of comments on the proposal to expand the current list of initial evidence for EB-1 outstanding professors and researchers to allow petitioners to submit evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i).

    1. Support

    Most of the commenters on the EB-1 comparable evidence provision supported it, for a variety of reasons. They cited the perceived positive effects on the United States, the need for harmonization of the regulations, and the need to submit evidence to allow beneficiaries to fully document their accomplishments. DHS notes that the same commenters remarked on more than one aspect of the comparable evidence provision.

    Specifically, commenters remarked that the change would positively affect the United States in a variety of ways. Two commenters noted that the comparable evidence provision would expand the number of individuals eligible for this classification and would benefit the United States as a whole. Some commenters noted that the comparable evidence provision will improve the ability of U.S. employers, especially higher education employers, to attract, recruit, and retain talented foreign professors, researchers, and scholars. One of these commenters added that this regulatory change will improve the capability to recruit and retain talented individuals which conduct the research that allows U.S. businesses to develop and sell products. This improved capability to recruit these individuals will help the U.S. economy's growth. Another commenter added that refining the EB-1 outstanding professors and researchers evidentiary list would benefit the United States by boosting research, innovation, and development.

    DHS appreciates the commenters' support for the comparable evidence provision based on the perceived positive effects on United States' competitiveness and the Nation's economy. DHS agrees with the commenters that the proposed comparable evidence provision may also help U.S. employers recruit EB-1 outstanding professors and researchers.

    A number of commenters supported expansion of the current list of evidentiary criteria for EB-1 outstanding professors and researchers to allow the submission of comparable evidence because it would harmonize the EB-1 outstanding professor and researcher regulations with those of other comparable employment-based immigrant classifications, eliminating unwarranted disparities with respect to these policies. Commenters emphasized that the proposed comparable evidence provision in turn would bring the criteria for proving eligibility for the outstanding professors and researchers classification in line with those that have long been permitted for other preference categories such as EB-1 aliens of extraordinary ability and EB-2 aliens of exceptional ability. These commenters stated that the proposed change is a logical extension of the existing regulatory provision listing the evidentiary criteria for EB-1 outstanding professors and researchers, especially since the similarly situated EB-1 extraordinary ability classification, which requires satisfaction of a higher evidentiary threshold, allows for consideration of comparable evidence.12

    12 The regulatory text stating when comparable evidence may be submitted uses the term “standards” when referring to the list of evidence that may be submitted to establish eligibility. See, e.g., 8 CFR 204.5(h)(4) and 8 CFR 204.5(k)(3)(iii). Commenters, however, commonly used the term “criteria” or “criterion” when referring to the “comparable evidence” provisions and when responding to DHS's proposal to allow petitioners to submit evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i).

    DHS appreciates commenters' support for the comparable evidence provision based on the harmonization of the comparable regulations. DHS agrees that by allowing for the submission of comparable evidence, DHS will bring the evidentiary standards of the EB-1 outstanding professor and researcher category in line with those currently available to individuals qualifying under both the EB-1 extraordinary ability and EB-2 exceptional ability categories. This change in turn will provide equity for EB-1 outstanding professors and researchers with other similarly situated individuals. This change better enables petitioners to hire outstanding professors and researchers by providing a set of standards that are flexible enough to comprehensively encompass all evidence that may demonstrate their satisfaction of the statutory standard. DHS notes that although it is expanding the types of evidence that a petitioner may submit to establish eligibility, this rulemaking does not change the petitioner's burden to establish eligibility under the preponderance of the evidence standard of proof.

    A number of commenters supported expanding the criteria for EB-1 outstanding professors and researchers because doing so would remove evidentiary limitations and allow employers to present full documentation of an employee's qualifications. One of these commenters added that the language in the proposed rule was well drafted and broad enough to include all evidence that may prove outstanding achievement. Under current regulation, petitioners need to fit evidence into specific evidentiary categories. For example, petitioners have submitted funding grants as documentation of major awards under 8 CFR 204.5(i)(3)(i)(A). In other instances, petitioners may have omitted relevant evidence that could have helped to demonstrate the beneficiary is recognized internationally as outstanding, such as high salary and affiliation with prestigious institutions, because they did not believe it would fit into any of the regulatory evidentiary category. Commenters noted that the proposed change adds necessary flexibility; for instance, this change will now potentially allow for the submission of important patents, grant funding and other such achievements that may not neatly fall into the previously existing evidentiary categories. Two of these commenters also commended DHS for recognizing that the types of evidence relevant to the determination of eligibility for this classification have changed greatly since these evidentiary criteria were first created, and will continue to evolve over time due to the changing needs of American businesses.

    One of the commenters that supported the comparable evidence provision also expressed concern regarding how USCIS considers comparable evidence. The commenter reported that recent decisions in other employment-based categories suggest that adjudicators allow comparable evidence only when none of the listed criteria apply. The commenter added that comparable evidence should be presumed acceptable, regardless of whether any of the otherwise enumerated criteria apply, as long as the evidence is relevant to the merits of the case. This commenter urged DHS to clarify this approach here, as well as with certain employment-based classifications where comparable evidence is currently in use.

    DHS appreciates the commenter's concern regarding adjudicative trends in how USCIS considers comparable evidence. DHS regulations provide that petitions in the EB-1 extraordinary ability and EB-2 exceptional ability classifications must establish that one or more permissible standards are not readily applicable to the beneficiary's occupation in order to rely on the comparable evidence provision respective to those standards. See 8 CFR 204.5(h)(4), (k)(3)(iii). Accordingly, if any single evidentiary standard is inapplicable to the beneficiary's occupation, the petitioner may submit alternative, but comparable, evidence even though other standards may be applicable to the beneficiary's occupation.

    For EB-1 outstanding professors and researchers, DHS confirms that a petitioner will be able to submit comparable evidence instead of, or in addition to, evidence targeted at the standards currently listed in 8 CFR 204.5(i)(3)(i) to demonstrate that the beneficiary is internationally recognized as outstanding if the currently listed standards do not readily apply. The intent of this provision is to allow petitioners, in cases where evidence of the beneficiary's achievements do not fit neatly into the enumerated list, to submit alternate, but qualitatively comparable, evidence. Under this provision, a petitioner may submit evidence falling within the standards listed under 8 CFR 204.5(i)(3)(i), and may also use the comparable evidence provision to submit additional types of comparable evidence that is not listed, or that may not be fully encompassed, in 8 CFR 204.5(i)(3)(i). DHS notes that a petitioner's characterization of existing standards as “not readily applying” to the submitted evidence will be considered in the totality of the circumstances, but USCIS ultimately will determine which standard is satisfied, if any, by any form of submitted evidence.

    As noted in the proposed rule, limiting submission of comparable evidence for outstanding professors and researchers only to instances in which the standards do not readily apply “to the alien's occupation” would not adequately serve the goal of this regulatory change because unlike the standards for EB-1 aliens of extraordinary ability and EB-2 aliens of exceptional ability, the standards for EB-1 outstanding professors and researchers are tailored to only these two occupations.13 Thus, a petitioner for an outstanding professor or researcher does not need to establish that a particular standard is not readily applicable “to the beneficiary's occupation” before they can rely on comparable evidence. A petitioner for an outstanding professor or researcher instead needs to establish that the evidentiary standards listed in 8 CFR 204.5(i)(3)(i) do not readily apply to the evidence that the petitioner proposes to submit before the petitioner can rely on the comparable evidence provision.

    13 In the proposed rule, DHS explained that the aliens of extraordinary ability and aliens of exceptional ability classifications encompass a broad range of occupations (sciences, arts, education, business, or athletics for extraordinary ability aliens; and the sciences, arts, or business for exceptional ability aliens). See 79 FR 26870, 26880 (citing INA section 203(b)(1)(A), (2)(A)). Employers filing petitions under such classifications may submit comparable evidence if they can establish that the standards listed in the regulation do not directly apply to the beneficiary's occupation. See 8 CFR. 204.5(h)(4), (k)(3)(iii). In contrast, the outstanding professor or researcher classification involves only two overarching types of occupations, and generally, the current evidentiary standards readily apply to both. Therefore, the variance between the regulatory text of comparable evidence provision for EB-1 outstanding professors and researchers and that provision for the other two categories is necessary.

    After establishing that the evidentiary standards listed in 8 CFR 204.5(i)(3)(i) does not readily apply to the evidence he or she is submitting, the petitioner may then submit alternative, but qualitatively comparable evidence for those standards. The existing evidentiary standards listed in 8 CFR 204.5(i)(3)(i) serve as a roadmap for determining, among other things, the quantity and types of evidence that should be submitted in order for such evidence to be considered “comparable.”

    Given the overwhelming support and strong justification for the comparable evidence provision as proposed, DHS will adopt it and amend 8 CFR 204.5(i)(3) to include a comparable evidence provision.

    2. Oppose

    Two commenters opposed the comparable evidence provision for outstanding professors and researchers. One commenter indicated that they opposed it because it will expand the number of eligible foreign nationals competing for high-tech jobs. The commenter stated that many engineers, computer professionals and scientists are unemployed or under-employed and asserted that the proposed change would lead to two negative effects on U.S. workers: (1) The change will depress the wages of U.S. citizens; and (2) it will increase a sense of job instability and in turn deter workers from speaking up for fear of retaliation.

    While the commenter did not submit data to support the wage and instability concerns, DHS takes these comments seriously. DHS appreciates this viewpoint and has carefully considered the potential for any negative effects on the labor market as a result of this rulemaking. Congress imposed a numerical limitation for the number of EB-1 visas available annually. The annual cap on EB-1 visas generally is set by statute at 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors) described in section 203(b)(4) and (5) of the INA, 8 U.S.C. 1153(b)(4) and (5). In FY 14, USCIS received 3,549 petitions for EB-1 outstanding professors and researchers. DHS notes that this provision does not expand the visa numerical limitation beyond that set forth by Congress. Rather, DHS is simply expanding the list of evidentiary standards so that those who may be meritorious of classification under INA 203(b)(1)(B) can more readily demonstrate their eligibility, consistent with similar classifications. This provision provides greater flexibility for petitioners on what evidence they may submit to show that the beneficiary is recognized internationally as outstanding in the academic field specified in the petition. It does not change any of the remaining petitioning requirements (such as the job offer) or expand the types of individuals who can qualify for the EB-1 classification beyond those individuals authorized under the statute. Instead, this change better enables petitioners to hire outstanding professors and researchers by providing a set of standards that are flexible enough to encompass any evidence that may demonstrate that they are recognized internationally as outstanding.

    Another commenter expressed concern regarding existing fraud and abuse in the H-1B and EB-1 programs, stating that the government should first focus on ways to prevent such abuse “before passing any law to ease the process” for these individuals. The commenter did not provide any data on the nature or extent of such fraud and abuse, and did not otherwise identify a connection between the proposed rule's provisions and past instances of fraud and abuse. DHS takes concerns regarding fraud and abuse very seriously and has measures in place to detect and combat fraud. Strict consequences are already in place for immigration-related fraud and criminal activities, including inadmissibility to the United States, mandatory detention, ineligibility for naturalization, and removability. See, e.g. , INA sections 101(f), 212(a)(2) & (a)(6), 236(c), 237(a)(1)(G) & (a)(2), 318; 8 U.S.C. 1101(f), 1182(a)(2) & (a)(6),1226(c), 1227(a)(1)(G) & (a)(2), 1429.

    Additionally, the USCIS Fraud Detection and National Security Directorate (FDNS) currently combats fraud and abuse, including in the H-1B and EB-1 programs, by developing and maintaining efficient and effective anti-fraud and screening programs, leading information sharing and collaboration activities, and supporting law enforcement and intelligence communities. FDNS's primary mission is to determine whether individuals or organizations filing for immigration benefits pose a threat to national security, public safety, or the integrity of the nation's legal immigration system. FDNS's objective is to enhance USCIS's effectiveness and efficiency in detecting and removing known and suspected fraud from the application process, thus promoting the efficient processing of legitimate applications and petitions. FDNS officers resolve background check information and other concerns that surface during the processing of immigration benefit applications and petitions. Resolution often requires communication with law enforcement or intelligence agencies to make sure that the information is relevant to the applicant or petitioner at hand and, if so, whether the information would have an impact on eligibility for the benefit. FDNS officers also perform checks of USCIS databases and public information, as well as other administrative inquiries, to verify information provided on, and in support of, applications and petitions. FDNS uses the Fraud Detection and National Security Data System (FDNS-DS) to identify fraud and track potential patterns.

    USCIS has formed a partnership with U.S. Immigration and Customs Enforcement (ICE), in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. Individuals with information regarding fraud and abuse in the immigration benefits system are encouraged to contact FDNS at [email protected] or by mail at 111 Massachusetts Ave. NW., Ste. 7002, Mail Stop 2280, Washington, DC 20529-2280. DHS believes that these collective measures provide adequate safeguards to ensure that fraud and abuse does not occur, and that this rulemaking is unlikely to result in a significant additional risk of fraud and abuse, because there is a lack of a connection between the proposed rule's provisions and past instances of fraud and abuse. Accordingly, DHS has not made any changes in response to these comments.

    3. Suggestions for Other Evidence

    Six commenters suggested additional categories of evidence that DHS should consider accepting as comparable evidence or initial evidence. One commenter suggested that DHS accept the number of years of experience working in a research field and an offer of employment by a research organization or institute of higher education as comparable evidence to the various criteria See 8 CFR 204.5(i)(3). The commenter noted that certain researchers face hurdles in publishing groundbreaking results and are therefore unable to obtain the scholarly authorship, recognition, or requisite awards to meet this criterion. The commenter suggested that permitting this evidence would help these researchers meet the eligibility requirements for this classification.

    One commenter suggested that DHS give priority to U.S. doctoral degree holders applying as outstanding researchers or professors who already have a tenure-track faculty position. The commenter explained that these individuals teach and conduct research in narrowly focused fields and are therefore not heavily cited. As a result, they are not usually eligible for EB-1 positions because they cannot meet the existing criterion involving “published material in professional publications written by others” about the professor or researcher's work. See 8 CFR 204.5(i)(3)(i)(C). The commenter stated that allowing more evidence to fit the criterion will help individuals in this type of scenario.

    In general, three commenters suggested that DHS consider a U.S. earned doctoral degree as evidence to qualify for the EB-1 classification. Their comments varied in detail and scope. One commenter stated that DHS should grant the EB-1 classification to individuals who obtained their doctoral degrees from U.S. schools. This commenter did not provide any details or context to clarify this suggestion. Another commenter suggested that DHS should allow individuals with U.S. doctoral degrees in science, technology, engineering and mathematics (STEM) with a related job [offer] to qualify for the EB-1 category. DHS is unable to determine whether these commenters suggested an automatic grant of the classification based on a U.S. earned doctoral degree or if the commenter suggested that the classification be limited only to U.S. earned doctoral degree holders.

    One of these commenters suggested that DHS expand the list of initial evidence to include a STEM doctoral degree issued by a U.S. accredited university, and that DHS could publish a list of U.S. accredited universities to make the criteria more transparent. The commenter explained that a petitioner could satisfy the proposed criteria by submitting an “attested copy” 14 of the STEM degree certificate and an unopened transcript from the university, to mirror the current criteria set forth for EB-2 petitions. The commenter added that this suggestion would provide a pathway for U.S. trained doctoral degree holders to stay in the United States, allowing the United States to retain technical excellence and continue its leadership in technology. The commenter also suggested that DHS could set parameters for eligibility criteria based on salary, and that a petitioner could satisfy this requirement by submitting occupational employment statistics from the Bureau of Labor Statistics (BLS). The commenter suggested that eligible EB-1 workers should have wages that are greater than the 75th percentile of the BLS wage figures for their occupation, such that beneficiaries making greater than $100,000 a year would satisfy the criteria, a requirement the commenter believes would mirror the current criteria set forth for EB-1, Aliens of Extraordinary Ability.15 The commenter believes this suggestion would alleviate any concerns regarding financial exploitation of the immigrant worker and the protection of domestic workers' wage rights.

    14 The commenter references the evidentiary requirements for the EB-2, Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability. The relevant provision at 8 CFR 204.5(k)(3)(i)(A) requires an “official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree.” Therefore, in this context, DHS infers that “attested copy” is a reference to “an official academic record.”

    15 The commenter references the evidentiary requirements for the EB-1, Aliens of Extraordinary Ability. The relevant provision at 8 CFR 204.5(h)(3)(ix) requires “evidence that the alien has commanded a high salary or other high remuneration for services, in relation to others in the field.” In contrast, the evidentiary requirements for the EB-1, Outstanding Professors and Researchers, at 8 CFR 204.5(i)(3) does not contain a high salary criterion. DHS may consider any evidence submitted in the totality of the circumstances to determine whether an individual is internationally recognized as an outstanding professor or researcher.

    DHS carefully considered the commenters' suggestions for initial and additional evidence for the EB-1 outstanding professors and researchers classification. DHS believes that the evidence suggested in the comments above regarding minimum number of years of experience and minimum education requirements generally would not be beneficial in an analysis of whether an individual is internationally recognized as outstanding in his or her academic field. The purpose of the proposed comparable evidence provision is to allow petitioners to present evidence that, although not on the enumerated list, may still serve to demonstrate that the professor or researcher is internationally recognized as outstanding. DHS appreciates that to achieve this goal, the standards listed in 8 CFR 204.5(i)(3)(i) need to have some measure of flexibility so they may continue to evolve over time in response to U.S. business needs and/or the changing nature of certain work environments or practices. It is not clear, however, whether the commenters' suggestions regarding minimum number of years of experience, minimum education requirements, and salary requirements are intended to limit or expand the current evidentiary criteria for EB-1 outstanding professors or researchers. If they were intended to limit the criteria, then the commenters' suggestions would have the effect of narrowing the eligibility criteria by requiring very specific evidence that is possessed by a specific subset of the potential population of outstanding professors and researchers. In direct contrast, the intended purpose of the comparable evidence provision is to provide flexibility for this population. If the commenter's suggestions, however, were intended to expand the type of evidence that may be considered, that suggestion is consistent with the purpose of the comparable evidence provision as it provides needed flexibility to establish eligibility. Therefore, DHS declines to adopt these suggestions as amendments to the standards listed in 8 CFR 204.5(i)(3)(i) in favor of a broad comparable evidence provision.16

    16 Although DHS will not amend the regulations to add these very specific suggestions, please note that the comparable evidence provision is sufficiently broad to permit consideration of the evidence described in the comments, so long as the previously described requirements of the provision are satisfied.

    One commenter expressed concern that adding the proposed comparable evidence provision will not improve the probability that an outstanding professor and researcher will qualify for the classification. The commenter explained that adjudicators analyze this classification under a two-part analysis, and therefore meeting the criteria is not enough to prove eligibility. Instead, the commenter suggested that DHS impose a point- based system as an alternative, transparent method for evaluating whether these individuals are eligible for the classification. The commenter added that this would eliminate any subjectivity in the process and allow a researcher or petitioner to predict whether he or she meets or does not meet the criteria.

    DHS disagrees with the commenter's assertion that the proposed comparable evidence provision will not benefit petitioners and these specific foreign workers. The stated purpose of the proposed comparable evidence provision is to allow petitioners to submit additional types of evidence and to fully document the beneficiary's international recognition as an outstanding professor or researcher in order to demonstrate eligibility for the requested classification. However, this proposal does not change the eligibility standard for this classification. The petitioner must still demonstrate, by a preponderance of the evidence, that the beneficiary is recognized internationally as outstanding in the specific academic area.

    The commenter correctly asserted that adjudicators analyze this classification using a two-part approach. The USCIS policy memo, Evaluation of Evidentiary Criteria in Certain I-140 Petitions, provides instructions to adjudicators regarding application of a two-step analysis for purposes of adjudicating extraordinary ability, outstanding professor and researcher, and exceptional ability Form I-140 petitions.17 The commenter stated that given this two-step analysis, a beneficiary may satisfy at least two of the outstanding professor and researcher regulatory standards but fail to prove eligibility. DHS believes that whether or not a beneficiary ultimately may prove eligibility by providing evidence satisfying at least two of the listed regulatory criteria is not a material question in considering whether to add this comparable evidence provision. Instead, by allowing submission and consideration of comparable evidence, which does not exist under current regulation, this rule promises to offer petitioners a more meaningful opportunity to establish a beneficiary's eligibility. Thus, although DHS recognizes that satisfaction of the newly added provision will not guarantee approval for the classification, if petitioners submit evidence that indeed is comparable and points to international recognition for being outstanding in the field, that evidence may improve the probability that the petition will be approved under the existing framework.

    17See USCIS Policy Memorandum, “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14” (Dec. 22, 2010), available at http://www.uscis.gov/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-1.pdf.

    DHS appreciates the suggestion for an alternative framework for analysis of the EB-1 outstanding professors and researchers classification, but DHS declines to adopt the suggested point-based system as it would require a much broader reshaping of the current immigration system. This suggestion would require a wholesale rulemaking for all the other classifications, which is beyond the scope of this rulemaking.

    DHS declines to adopt the suggestions for initial evidence, additional evidence, and an alternative framework. As previously noted, DHS is tailoring this regulation to provide EB-1 outstanding professors and researchers with a comparable evidence provision that mirrors the other employment-based immigrant categories that already allow for submission of comparable evidence.

    G. Miscellaneous Comments

    One commenter requested clarification as to whether the changes proposed in this rule would affect processing times for family immigration. The commenter did not state which aspects of the proposed changes he or she believes could impact family immigration processing times. While there is always a possibility that changes to one USCIS business process may trigger unanticipated downstream effects on other USCIS business processes, DHS does not anticipate that changes made by this rule will have a direct impact on family based immigration processing times.

    Another commenter supported DHS's replacement of the more narrow term “employer” with the more general term “petitioner” in reference to who may file a request to change or extend status under 8 CFR 214.1(c)(1) and 248.3(a). The commenter explained that the term “employer” does not adequately describe the array of individuals and entities that may file petitions under 8 CFR 214.2 and the term “petitioner” is a much more accurate descriptor. DHS agrees that the term “petitioner” is a more accurate depiction of the individual who may file in a variety of scenarios. Additionally, this change will generally eliminate inconsistency between the change of status and extension of stay provisions and the classification-specific provisions in 8 CFR 214.2. This change will eliminate any confusion that the current inconsistency between these provisions may have caused. DHS will adopt this provision without change.

    IV. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563

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

    This analysis updates the estimated costs and benefits discussed in the proposed rule. This final rule will not impose any additional compliance costs on employers, individuals, or government entities, and will not require additional funding for the Federal Government. However, DHS notes that there could be additional familiarization costs as employers read the final rule in the Federal Register to understand the benefits that this rule will provide. Also, USCIS may spend a de minimis amount of time updating training materials, but USCIS does not expect to hire additional personnel as a result of this rule. The final rule will make certain changes to the regulations governing the E-3, H-1B1, and CW-1 nonimmigrant worker classifications. Specifically, DHS will amend the regulation to allow principal E-3, H-1B1, and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Arrival Departure Record, Form I-94, provided that their extension of stay request is timely filed. Employers or petitioners are already required to submit an extension of stay for such nonimmigrant classifications in order to extend their status beyond the expiration date noted on their Arrival Departure Record, Form I-94. Permitting continued employment while the extension of stay request is pending with USCIS places principal E-3, H-1B1, and CW-1 nonimmigrant workers on par with other, similarly situated nonimmigrants. The provisions will not result in any additional compliance costs, burdens, or procedures for the U.S. employer or the workers.

    Additionally, DHS will allow petitioners of EB-1 outstanding professors and researchers to submit comparable evidence, instead of or in addition to the evidence listed in 8 CFR 204.5(i)(3)(i), to demonstrate that the professor or researcher is recognized internationally as outstanding in his or her academic field. Allowing comparable evidence for EB-1 outstanding professors and researchers will match the evidentiary requirements with those of similarly situated employment-based immigrant classifications.

    DHS notes that the above-referenced changes are part of DHS's Retrospective Review Plan for Existing Regulations under Executive Order 13563.18 During the development of DHS's Retrospective Review Plan for Existing Regulations in 2011, DHS received one comment in response to the 2011 publication.19 DHS received more comments again in response to the 2014 publication. These public comments requested specific changes to the DHS regulations that govern continued work authorization for principal E-3 and H-1B1 nonimmigrants when an extension of status petition is timely filed, and requested that DHS expand the types of evidence allowable in support of immigrant petitions for outstanding researchers or professors. This rule responds to these comments according to the retrospective review principles of Executive Order 13563.

    18See U.S. Department of Homeland Security Retrospective Review of Existing Regulations—Progress Report (Feb. 2015), available at http://www.dhs.gov/publication/february-2015-retrospective-review-plan-report for the latest published update on DHS actions with respect to Retrospective Review.

    19See Letter from Marlene M. Johnson, Executive Director and CEO of NAFSA: Association of International Educators, to Ivan K. Fong, General Counsel, DHS (Apr. 13, 2011), available at http://www.nafsa.org/uploadedFiles/DHSregreviewcommentApr122011%20public.pdf.

    The costs and benefits of the final rule are summarized in Table 2.

    Table 2—Summary of Costs and Benefits Costs Change Benefits and Avoided Costs E3, H-1B1, and CW-1 Nonimmigrants Minimal costs associated with reading the rule to understand the benefits that will accrue to employers and workers. This rule does not impose any additional compliance costs Continued employment authorization of up to 240 days for an H-1B1, principal E-3, or CW-1 nonimmigrant worker while a timely filed extension of stay petition is pending Avoided cost of lost productivity for U.S. employers of principal E-3, H-1B1, and CW-1 nonimmigrant workers. Not quantified.
  • Would provide equity for principal E-3 and H-1B1 nonimmigrants relative to other employment-based nonimmigrants listed in 8 CFR 274a.12.(b)(20) and provides equity for CW-1 nonimmigrant workers whose extension is filed by the same employer, similar to other CW-1 nonimmigrant workers who change employers. Qualitative benefit.
  • Clarify that principal E-3 and H-1B1 nonimmigrants are work authorized incident to status, and specify current filing procedures for requesting change of status or extension of stay Ensures the regulations are consistent with statutory authority and codifies current practice. EB-1 Outstanding Professor and Researcher Classification Allow the use of comparable evidence to that listed in 8 CFR 204.5(i)(3)(i)(A)-(F) to establish that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field May help U.S. employers recruit EB-1 outstanding professors and researchers for U.S. employers. Not quantified.
  • Would provide equity for EB-1 outstanding professors and researchers relative to certain employment-based immigrants listed in 8 CFR 204.5. Qualitative benefit.
  • A summary of the classification types affected by this final rule is shown in Table 3.

    Table 3—Summary of Affected Visa Types Visa type Beneficiary
  • restrictions
  • Immigration
  • status
  • Maximum
  • duration of
  • stay
  • Annual
  • limitations
  • E-3 Nationals of Australia Nonimmigrant (temporary employment) 2 years, potentially indefinite extensions 10,500 20. H-1B1 Nationals of Chile or Singapore Nonimmigrant (temporary employment) 1 year, potentially indefinite extensions 1,400 for Chilean nationals; 5,400 for Singaporean nationals. CW-1 Limited to workers in the CNMI during the transition to U.S. Federal immigration regulations Nonimmigrant (temporary employment during transition period) 1 year, extensions available through December 31, 2019 Maximum of 12,999 in fiscal year (FY) 2016. EB-1 outstanding professor and researcher Professors and researchers (any nationality) who are recognized internationally as outstanding in their academic area Immigrant (permanent residence and employment) None Apportioned from the approximate 40,040 generally available annually to first preference employment-based immigrant visas.
    1. E-3 and H-1B1 Nonimmigrant Workers

    Under current regulations, if employers of E-3 or H-1B1 nonimmigrants want to ensure continued employment authorization throughout the period that the extension request is pending, they generally must file a petition requesting the extension of the individual employee's stay well before the initial authorized period of stay expires. The Petition for a Nonimmigrant Worker, Form I-129, is used to request extensions of stay for these nonimmigrant workers. Currently, the petitioner may file a request for extension of stay as early as 6 months before the authorized period of stay expires. As of December 31, 2014, the average processing time for USCIS to adjudicate these extension requests is 2 months.21 However, if the principal E-3 or H-1B1 nonimmigrant worker's authorized period of stay expires before USCIS grants the extension request, the worker cannot continue to work while his or her extension request remains pending.

    20 In accordance with INA section 214(g)(11)(C), this limit only applies to principal E-3s and does not extend to spouses or children of the principal alien.

    21See USCIS Processing Time Information, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do. The USCIS California Service Center and Vermont Service Center adjudicate Petition for a Nonimmigrant Worker, Form I-129, extension of stay requests for E and H-1B nonimmigrants.

    In this rule, DHS amends its regulations to permit principal E-3 and H-1B1 nonimmigrants to continue their employment with the same employer for up to 240 days after their authorized period of stay expires (as specified on their Arrival-Departure Record, Form I-94) while requests for extension of stay on their behalf are pending. To obtain authorization to continue employment for up to 240 days, employers or petitioners must timely file the Petition for Nonimmigrant Worker, Form I-129. Since employers are already required to file the Petition for Nonimmigrant Worker, Form I-129, in order to request an extension of stay on behalf of the nonimmigrant worker, there are no additional filing requirements or costs for employers or petitioners to comply with in this final rule. DHS notes there are minimal familiarization costs to employers associated with reading the rule in the Federal Register to understand the benefits of the rule. The benefits of the final rule will be to provide equity for principal E-3 and H-1B1 nonimmigrants relative to other employment-based nonimmigrants listed in 8 CFR 274a.12.(b)(20). Additionally, this provision may allow employers of principal E-3 and H-1B1 nonimmigrant workers to avoid the cost of lost productivity that results from interruptions of work while an extension of stay request is pending.

    Table 4 shows that USCIS received a total of 5,294 extension of stay requests for H-1B1 and principal E-3 nonimmigrant workers in the FYs from 2010 through 2014 (an average of 1,059 requests per year). USCIS approved 4,026 extensions of stay requests in the same period (an average of 805 per year). Extension of stay requests received and petition approvals are not meant for direct comparison because USCIS may receive a petition in one year but make a decision on it in another year.

    Table 4—Petition for Nonimmigrant Worker, Form I-129 Filed for an Extension of Status for E-3 and H-1B1 Nonimmigrants FY Petitions received H-1B1 E-3 Total Petitions approved H-1B1 E-3 Total 2010 444 624 1,068 185 571 756 2011 438 555 993 220 410 630 2012 489 563 1,052 180 380 560 2013 417 590 1,007 411 622 1,033 2014 441 733 1,174 447 600 1,047 Total 2,229 3,065 5,294 1,443 2,583 4,026 Source: Data provided by USCIS Office of Performance and Quality (OPQ), January 2015.

    USCIS does not have an estimate of either: (a) the number of cases where principal E-3 and H-1B1 nonimmigrants are unable to continue employment with their employer because their employer's timely petition for an extension of stay was not adjudicated before their authorized period of stay expired, or (b) how long principal E-3 and H-1B1 nonimmigrants were unable to work when their employer's timely petition for an extension of stay was not adjudicated before their authorized period of stay expired.22 Because of this data limitation, we are unable to quantify the total aggregate estimated benefits of this provision of the rule. The rule, however, will benefit U.S. employers to the extent that this rule allows U.S. employers to avoid interruptions in productivity that could result if the timely extension of stay is not adjudicated before the authorized period of stay expires, as noted on the nonimmigrant worker's Arrival Departure Record, Form I-94. Unfortunately, DHS did not receive statistics or data from impacted stakeholders that permit us to quantitatively estimate the benefits of this rule.

    22 USCIS acknowledges that in part 3 of the Petition for a Nonimmigrant Worker, Form I-129, information is collected about the beneficiary that is currently in the United States. While this information is collected and considered for the purposes of adjudicating the petition, this information is not captured in a database.

    In addition, DHS is amending the regulations to codify current practices. Specifically, DHS is amending 8 CFR 274a.12(b) to clarify in the regulations that the principal E-3 and H-1B1 nonimmigrant classifications are employment authorized incident to status with a specific employer. DHS is also amending 8 CFR 214.1(c)(1) and 8 CFR 248.3(a) to add the principal E-3 and H-1B1 nonimmigrant classifications to the list of nonimmigrant classifications that must file a petition with USCIS to make an extension of stay or change of status request. Again, both of these regulatory clarifications are consistent with current practice.

    2. CW-1 Nonimmigrant Workers

    This provision of the final rule will apply to the CW-1 classification, which is issued solely to nonimmigrant workers in the CNMI. The CW-1 nonimmigrant visa classification was created to allow certain workers who are otherwise ineligible for any other nonimmigrant visa classification under the INA to work in the CNMI during the transition period to the U.S. Federal immigration system. This transition period was set to end on December 31, 2014. On June 3, 2014, the U.S. Secretary of Labor exercised statutory responsibility and authority by extending the CW transitional worker program for an additional 5 years, through December 31, 2019.23

    23See Secretary of Labor Extends the Transition Period of the Commonwealth of the Northern Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 2014).

    CW-1 nonimmigrant workers may be initially admitted to the CNMI for a period of 1 year, and USCIS may grant extensions in 1-year increments until the end of the transition period. The CW-1 nonimmigrant visa classification is valid only in the CNMI and does not require any certification from the DOL.

    DHS has determined that current regulations contain an inconsistency. While current regulations provide continued work authorization for CW-1 nonimmigrant workers while petitions for a change of employers are pending and for certain beneficiaries of initial CW transitional worker petitions filed on or before November 27, 2011, continued work authorization is not currently provided for CW-1 nonimmigrant workers requesting extensions of stay with the same employer. This inconsistency in the regulations may create an incentive for CW-1 nonimmigrant workers to change employers, as they would have the advantage of uninterrupted work authorization.

    DHS is revising the regulations to allow for equitable treatment of CW-1 nonimmigrant workers who remain with the same employer by extending continued employment authorization for up to 240 days while a timely filed, pending request for an extension of stay with the same employer is being adjudicated. As with the similar proposal in this rule regarding H-1B1 and principal E-3 nonimmigrants, current employers of CW-1 nonimmigrant workers may also avoid productivity losses that could occur if a CW-1 nonimmigrant worker cannot continue employment while the timely filed extension request is pending.

    The CW-1 nonimmigrant classification is temporary. DHS has established numerical limitations on the number of CW-1 nonimmigrant classifications that may be granted (see Table 5). The numerical limitations apply to both initial petitions and extension of stay requests, including change of employer petitions, in a given FY. DHS has set the numerical limitation for CW-1 nonimmigrant workers at 12,999 for FY 2016.24

    24See Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2016, 80 FR 63911 (Oct. 22, 2015). On June 3, 2014, the Secretary of Labor exercised statutory responsibility and authority by extending the CW transitional worker program for an additional 5 years, through December 31, 2019. See Secretary of Labor Extends the Transition Period of the Commonwealth of the Northern Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 2014).

    Source: FYs 2011 and 2012, 8 CFR 214(w)(viii). FY 2013, Federal Register volume 77, no. 231, page 71287. FY 2014, Federal Register volume 78, no. 186, page 58867. FY 2015 Federal Register volume 79, no. 188, page 58241. FY 2016 Federal Register volume 80, no. 204, page 63911.

    Table 5—Numerical Limitations of CW-1 Classifications FY Numerical Limit 2011 22,417 2012 22,416 2013 15,000 2014 14,000 2015 13,999 2016 12,999

    DHS set the numerical limit of CW-1 nonimmigrant workers at 14,000 for FY 2014 and petitioning employers filed initial petitions for 1,133 beneficiaries; extension of stay requests from the same employer for 8,952 beneficiaries; and extension of stay requests from new employers for an additional 1,298 beneficiaries.25 The population affected by this provision of the final rule will be those CW-1 nonimmigrant workers whose subsequent extensions of stay requests are filed by the same employer. Accordingly, if this proposal were in place in FY 2014, all of the 8,952 CW-1 nonimmigrant workers with extension of stay requests with the same employer would have received the continued 240-day employment authorization, if necessary, generally putting these workers on par with CW-1 nonimmigrant workers with extension of stay requests for new employers.

    25 Source: USCIS Office of Performance and Quality, January, 2015.

    This provision will not impose any additional costs on any petitioning employer or for CW-1 nonimmigrant workers. The benefits of this final rule will be that DHS will treat CW-1 nonimmigrant workers whose extension of stay request is timely filed by the same employer similar relative to other CW-1 nonimmigrant workers whose request is timely filed by a new employer. Additionally, this provision will mitigate any potential distortion in the labor market for employers of CW-1 nonimmigrant workers created by the differing provisions for retained workers versus provisions for workers changing employers and prevent a potential loss of productivity for current employers. Under current law, these benefits would be limited in duration, as the transition period in which CW-1 nonimmigrant worker classifications are issued is now scheduled to end on December 31, 2019. Unfortunately, USCIS does not have data to permit a quantitative estimation of the benefits 26 of this provision. Additionally, DHS did not receive data or additional information from impacted stakeholders that would permit DHS to quantitatively estimate the benefits of this rule as it relates to CW-1 nonimmigrant workers in the CNMI. DHS believes, however, that the inconsistent treatment of employment authorization for CW-1 nonimmigrant workers could have created hardships to the CNMI labor force.27

    26 The aggregate value of benefits would depend on several non-quantifiable factors including: the number of CW-1 workers prompted to change employment because of the automatic extension versus those changing for reasons of promotion and advancement or termination by their previous employer.

    27See Joint letter to the Director, USCIS, from the Saipan Chamber of Commerce, the Hotel Association of the Northern Mariana Islands and the Society for Human Resource Management CNMI (Dec. 20, 2012).

    3. EB-1 Outstanding Professors and Researchers

    For the EB-1 outstanding professor and researcher immigrant classification, under current regulations, a petitioner must submit initial evidence to demonstrate that the beneficiary is recognized internationally as outstanding in his or her specific academic field. The type of evidence that is required is outlined in 8 CFR 204.5(i)(3).

    To demonstrate that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field, DHS, through this rulemaking, is allowing petitioners to substitute comparable evidence (examples might include award of important patents and prestigious, peer-reviewed funding or grants) for the evidence listed in 8 CFR 204.5(i)(3)(i)(A)—(F). See 8 CFR 204.5(i)(3)(ii). The other requirements remain unchanged. DHS made this change in response to stakeholder concerns that the current evidentiary list is dated and may not allow the beneficiary to present the full documentation of their achievements.28

    28See Letter from Marlene M. Johnson, Executive Director and CEO of NAFSA: Association of International Educators, to Ivan K. Fong, General Counsel, DHS (Apr. 13, 2011), available at http://www.nafsa.org/uploadedFiles/DHSregreviewcommentApr122011%20public.pdf.

    By allowing for comparable evidence, DHS will harmonize the evidentiary requirements of the EB-1 outstanding professor and researcher category with those currently available to the EB-1 extraordinary ability category as well as the EB-2 category for a person of exceptional ability.

    This provision of the final rule will not create additional costs for any petitioning employer or for the EB-1 outstanding professor and researcher classification. The benefits of this provision are qualitative, as it will treat EB-1 outstanding professors and researchers the same as certain other individuals who seek similar employment-based immigrant status under 8 CFR 204.5. Because of the expanded types of evidence that could be used to support an EB-1 petition for outstanding professors and researchers, qualified U.S. employers may find it easier to recruit EB-1 outstanding professors and researchers due to this provision. Recruitment may provide EB-1 outstanding professors or researchers with additional opportunities to contribute to his or her employer and field, furthering his or her international recognition.

    As shown in Table 6, over the past 10 FY(s), USCIS approved an average of 93.23 percent of EB-1 petitions for outstanding professors and researchers under the current evidentiary standards. USCIS does not have data to indicate which, if any, of the 2,379 petitions that were not approved from FY 2005 through FY 2014 would have been approved under the proposed evidentiary standards. Furthermore, we are not able to estimate whether the proposed evidentiary standards would alter the demand for EB-1 outstanding professors and researchers by U.S. employers. Because of this data limitation, the further quantification of this benefit is not possible.

    Table 6—Immigrant Petition for Alien Worker (I-140) With Outstanding Professor or Researcher Preference Receipts and Completions, FY 2005-2014 FY Receipts 29 Approved 30 Denied Percent approved 2005 3,089 5,455 391 93.31 2006 3,111 3,139 165 95.01 2007 3,560 2,540 300 89.44 2008 2,648 2,223 187 92.24 2009 3,209 3,991 309 92.81 2010 3,522 3,199 332 90.60 2011 3,187 3,090 218 93.41 2012 3,112 3,223 194 94.32 2013 3,350 3,180 147 95.58 2014 3,549 3,357 136 95.58 Total 32,337 33,397 2,379 10-Yr Avg: 93.23% Source: Data provided by USCIS Office of Performance and Quality (OPQ), January 2015.

    DHS welcomed public comments from impacted stakeholders, such as employers or prospective employers of an EB-1 outstanding professor or researcher, providing information or data that would enable DHS to calculate the resulting benefits of this provision. DHS did not receive any data on this request that would allow DHS to calculate quantitative benefits of this regulatory change. As indicated earlier in the preamble, DHS did receive comments suggesting that this change will benefit both U.S. employers that are petitioning for outstanding professors and researchers, and the individuals seeking immigration status under this classification.

    29 Receipts are those filed within the FY indicated and include petitions from new arrivals and those that are seeking to adjust status.

    30 Approved and denied petitions may have been receipted in a previous FY.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to consider the potential impact of regulations on small entities while they are developing the rules. 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. This final rule revises regulations to allow for additional flexibilities; harmonizes the conditions of employment of principal E-3, H-1B1, and CW-1 nonimmigrant workers with other, similarly situated nonimmigrant categories; and harmonizes the allowance of comparable evidence for EB-1 outstanding professors and researchers with evidentiary requirements of other similar employment-based immigrant categories. As discussed previously, DHS does not anticipate that the additional provisions will result in additional compliance costs for impacted U.S. employers, including any small entities, other than the minimal costs associated with reading and becoming familiar with benefits offered by the rule.

    As discussed extensively in the regulatory assessment for Executive Orders 12866 and 13563 and elsewhere throughout the preamble, this final rule does not impose any additional compliance costs on U.S. employers. U.S. employers must continue filing extension of stay requests with DHS to extend the period of authorized stay of E-3, H-1B1, and CW-1 nonimmigrant employees, as is currently required. This final rule, however, will allow for a continued period of authorized employment for the nonimmigrant worker who is the beneficiary of this petition, provided that the petition is timely filed. This will provide increased flexibilities for the U.S. petitioning employers without imposing any additional costs or compliance procedures.

    Based on the foregoing, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities.

    C. Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 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.

    D. Small Business Regulatory Enforcement Fairness Act of 1996

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

    E. Executive Order 13132

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

    F. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

    G. Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, agencies are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. See 44 U.S.C. 3506.

    The information collection requirement contained in this rule, Immigrant Petition for Alien Worker, Form I-140, has been previously approved for use by OMB under the PRA. The OMB control number for the information collection is 1615-0015.

    This final rule requires a revision to the Immigrant Petition for Alien Worker, Form I-140, instructions to expand the current list of evidentiary standards to include comparable evidence so that U.S. employers petitioning for an EB-1 outstanding professor or researcher may be aware that they may submit additional or alternative documentation demonstrating the beneficiary's achievements if the evidence otherwise described in 8 CFR 204.5(i)(3)(i) does not readily apply. Specifically, DHS is adding a new paragraph “b” under the “Initial Evidence” section of the form instructions, to specify that employers filing for an outstanding professor or researcher may submit comparable evidence to establish the foreign national's eligibility if the listed standards under 8 CFR 204.5(i)(3)(i) do not readily apply. DHS is also providing minor clarifying language updates to the form instructions to maintain parity among USCIS forms. DHS has submitted the revised information collection request (ICR) to OMB for review, and OMB has conducted a preliminary review under 5 CFR 1320.11.

    DHS has considered the public comments received in response to EB-1 provision in the proposed rule, Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, published in the Federal Register at 79 FR 26870 on May 12, 2014. DHS's responses to these comments appear under Part III.F of this final rule.

    DHS did not receive comments related to the Immigrant Petition for Alien Workers, Form I-140, revisions. As a result, DHS will not submit any further changes to the information collection.

    USCIS has submitted the supporting statement to OMB as part of its request for approval of this revised information collection instrument. There is no change in the estimated annual burden hours initially reported in the proposed rule. Based on a technical and procedural update required in the ICRs for all USCIS forms, USCIS has newly accounted for estimates for existing out-of-pocket costs that respondents may incur to obtain tax, financial, or business records, and/or other evidentiary documentation depending on the specific employment-based immigrant visa classifications requested on the Immigrant Petition for Alien Worker, Form I-140. This change in the ICR is a technical and procedural update and is not a result of any change related to this final rule.

    Regulatory Amendments List of Subjects 8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements.

    8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping, Students.

    8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

    8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

    PART 204—IMMIGRANT PETITIONS 1. The authority citation for part 204 continues to read as follows: Authority:

    8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR part 2.

    2. Section 204.5 is amended by redesignating paragraphs (i)(3)(ii) and (iii) as paragraphs (i)(3)(iii) and (iv), respectively, and adding a new paragraph (i)(3)(ii) to read as follows:
    § 204.5 Petitions for employment-based immigrants.

    (i) * * *

    (3) * * *

    (ii) If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

    PART 214-NONIMMIGRANT CLASSES 3. The authority citation for part 214 is revised to read as follows: Authority:

    8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.

    4. Section 214.1 is amended in paragraph (c)(1) by: a. Revising the paragraph heading; and b. Removing the first and second sentences, and adding one sentence in their place.

    The revision and addition read as follows:

    § 214.1 Requirements for admission, extension, and maintenance of status.

    (c) * * *

    (1) Extension of stay for certain employment-based nonimmigrant workers. A petitioner seeking the services of an E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant beyond the period previously granted, must apply for an extension of stay on the form designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), with the initial evidence specified in § 214.2, and in accordance with the form instructions. * * *

    PART 248—CHANGE OF NONIMMIGRANT CLASSIFICATION 5. The authority citation for part 248 continues to read as follows: Authority:

    8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

    6. Section 248.3 is amended by revising the section heading and paragraph (a) to read as follows:
    § 248.3 Petition and application.

    (a) Requests by petitioners. A petitioner must submit a request for a change of status to E-1, E-2, E-3, H-1C, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant.

    PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 7. The authority citation for part 274a continues to read as follows: Authority:

    8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2.

    8. Section 274a.12 is amended by: a. Revising the first sentence of paragraph (b)(9); b. Revising the first sentence of paragraph (b)(20); c. Removing the word “or” at the end of paragraph (b)(23); d. Removing the period at the end of paragraph (b)(24) and adding in its place “; or”; and e. Adding paragraph (b)(25).

    The revisions and addition read as follows:

    § 274a.12 Classes of aliens authorized to accept employment.

    (b) * * *

    (9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), pursuant to § 214.2(h) of this chapter, or a nonimmigrant specialty occupation worker pursuant to section 101(a)(15)(H)(i)(b1) of the Act. * * *

    (20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), (b)(19), (b)(23) and (b)(25) of this section whose status has expired but on whose behalf an application for an extension of stay was timely filed pursuant to § 214.2 or § 214.6 of this chapter. * * *

    (25) A nonimmigrant treaty alien in a specialty occupation (E-3) pursuant to section 101(a)(15)(E)(iii) of the Act.

    Jeh Charles Johnson, Secretary of Homeland Security.
    [FR Doc. 2016-00478 Filed 1-13-16; 11:15 am] BILLING CODE 9111-97-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 Docket No. FAA-2015-6753; Airspace Docket No. 15-ANM-29 Amendment of Class D Airspace; Denver, CO AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends the city designation of the Class D airspace at Broomfield, CO, changing the designation to Denver, CO, and the airport name to Rocky Mountain Metropolitan Airport. The name and associated city location of the airport are updated to coincide with the FAA's aeronautical database. This does not affect the charted boundaries or operating requirements of the airspace.

    DATES:

    Effective 0901 UTC, March 31, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

    Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies the legal description of the Class D airspace at Denver, CO, by updating the name and associated city designation of the airport to coincide with the FAA's aeronautical database. Jefferson County Airport is renamed Rocky Mountain Metropolitan Airport and the city designation is corrected from Broomfield, CO, to Denver, CO. This does not affect the boundaries or operating requirements of the airspace.

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

    This is an administrative change amending the airport name and city location to be in concert with the FAAs aeronautical database, and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 5000: Class D Airspace. ANM CO D  Denver, CO [Amended] Rocky Mountain Metropolitan Airport, CO (Lat. 39°54′32″ N., Long. 105°07′02″ W.)

    That airspace extending upward from the surface to, but not including, 8,000 feet MSL, within a 5-mile radius of Rocky Mountain Metropolitan Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.

    Issued in Seattle, Washington, on December 28, 2015. Tracey Johnson, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-00305 Filed 1-14-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Parts 10, 24, 162, 163, and 178 [USCBP-2015-0007; CBP Dec. 16-1] RIN 1515-AD59 United States-Australia Free Trade Agreement AGENCIES:

    U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    This document adopts as a final rule, with one change, interim amendments to the U.S. Customs and Border Protection (CBP) regulations that were published in the Federal Register on February 10, 2015, as CBP Dec. 15-03, to implement the preferential tariff treatment and other customs-related provisions of the United States-Australia Free Trade Agreement.

    DATES:

    Effective February 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Textile Operational Aspects: Anita Harris, Textile Operations Branch, Office of International Trade, (202) 863-6241.

    Other Operational Aspects: Seth Mazze, Trade Policy and Programs, Office of International Trade, (202) 863-6567.

    Legal Aspects: Yuliya Gulis, Regulations and Rulings, Office of International Trade, (202) 325-0042.

    SUPPLEMENTARY INFORMATION:

    Background

    On May 18, 2004, the United States and Australia (the “Parties”) signed the United States-Australia Free Trade Agreement (“AFTA” or “Agreement”). On August 3, 2004, the President signed into law the United States-Australian Free Trade Agreement Implementation Act (the “Act”), Public Law 108-286, 118 Stat. 919 (19 U.S.C. 3805 note), which approved and made statutory changes to implement the AFTA. On December 20, 2004, the President signed Proclamation 7857 to implement the AFTA. The Proclamation, which was published in the Federal Register on December 23, 2004 (69 FR 77133), modified the Harmonized Tariff Schedule of the United States (“HTSUS”) as set forth in Annexes I and II of Publication 3722 of the U.S. International Trade Commission.

    On February 10, 2015, CBP published CBP Dec. 15-03 in the Federal Register (80 FR 7303) setting forth interim amendments to implement the preferential tariff treatment and other customs-related provisions of the AFTA and the Act. The majority of the AFTA implementing regulations set forth in CBP Dec. 15-03 and adopted, with one change, as final in this document have been included within new Subpart L of Part 10 of the CBP regulations (19 CFR part 10). In those cases in which AFTA implementation is more appropriate in the context of an existing regulatory provision, however, the AFTA regulatory text has been incorporated into an existing part within the CBP regulations. CBP Dec. 15-03 also sets forth a number of cross-references and other consequential changes to existing regulatory provisions to clarify the relationship between those existing provisions and the new AFTA implementing regulations. Please refer to that document for further background information.

    Although the interim regulatory amendments were promulgated without prior public notice and comment procedures and took effect on February 10, 2015, CBP Dec. 15-03 provided for the submission of public comments which would be considered before adoption of the interim regulations as a final rule. The prescribed public comment closed on April 13, 2015. CBP received one comment on CBP Dec. 15-03.

    Discussion of Comments

    One response was received to the solicitation of comments on the interim rule set forth in CBP Dec. 15-03. The comment is discussed below.

    Comment

    One commenter questioned whether the AFTA requires that Australian exporters be consulted before the interim regulations take effect.

    CBP Response

    The changes proposed in the interim regulations took effect on the date of publication of the interim regulations. As indicated above, CBP Dec. 15-03 provided for the submission of public comments which would be considered before adoption of the interim regulations as a final rule. All interested parties, including Australian exporters, were given the opportunity to submit public comments. No such public comments were received from or submitted by any party in response to CBP Dec. 15-03 that objected to the changes in the interim rules being included in a final rule.

    Other Amendment

    This document clarifies 19 CFR 10.725(c) by removing the parenthetical cross reference to §§ 10.746 and 10.747 and, instead, stating that the importer's actions must be “pursuant to” those CBP regulations.

    Conclusion

    After further review of the matter, including consideration of the above-mentioned comment submitted in response to CBP's solicitation of public comment, CBP has determined to adopt as final, with a clarification, the interim rule published in the Federal Register (80 FR 7303) on February 10, 2015.

    Executive Order 12866

    This document is not a regulation subject to the provisions of Executive Order 12866 of September 30, 1993 (58 FR 51735, October 1993), because it pertains to a foreign affairs function of the United States and implements an international agreement, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866.

    Regulatory Flexibility Act

    CBP Dec. 15-03 was issued as an interim rule rather than a notice of proposed rulemaking because CBP had determined that the interim regulations involve a foreign affairs function of the United States pursuant to section 553(a)(1) of the Administrative Procedure Act (APA). As no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.), do not apply. Accordingly, this final rule is not subject to the regulatory analysis requirements or other requirements of 5 U.S.C. 603 and 604.

    Paperwork Reduction Act

    The collections of information contained in these regulations have previously been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0117, which covers many of the free trade agreement requirements that CBP administers, and 1651-0076, which covers general recordkeeping requirements. The collections of information in these regulations are in §§ 10.723, 10.724, and 10.727 of title 19 of the Code of Federal Regulations (19 CFR 10.723, 10.724, and 10.727). This information is required in connection with general recordkeeping requirements (§ 10.727), as well as claims for preferential tariff treatment under the AFTA and the Act and will be used by CBP to determine eligibility for tariff preference under the AFTA and the Act. The likely respondents are business organizations including importers, exporters and manufacturers.

    The estimated total annual reporting burden associated with the collection of information in this final rule is 4,000 hours. Under the Paperwork Reduction Act, an agency may not conduct or sponsor and a person is not required to respond to a collection of information, unless it displays a valid OMB control number.

    Signing Authority

    This document is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain CBP revenue functions.

    List of Subjects 19 CFR Part 10

    Alterations, Bonds, Customs duties and inspection, Exports, Imports, Preference programs, Repairs, Reporting and recordkeeping requirements, Trade agreements.

    19 CFR Part 24

    Accounting, Customs duties and inspection, Financial and accounting procedures, Reporting and recordkeeping requirements, Trade agreements, User fees.

    19 CFR Part 162

    Administrative practice and procedure, Customs duties and inspection, Penalties, Trade agreements.

    19 CFR Part 163

    Administrative practice and procedure, Customs duties and inspection, Exports, Imports, Reporting and recordkeeping requirements, Trade agreements.

    19 CFR Part 178

    Administrative practice and procedure, Exports, Imports, Reporting and recordkeeping requirements.

    Amendment to the CBP Regulations

    For the reasons stated above, the interim rule amending Parts 10, 24, 162, 163, and 178 of the CBP regulations (19 CFR parts 10, 24, 162, 163, and 178), which was published at 80 FR 7303 on February 10, 2015, is adopted as a final rule with the following change:

    PART 10—ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE, ETC. 1. The general authority citation for part 10, and the specific authority citation for Subpart L, continue to read as follows: Authority:

    19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.

    Sections 10.721 through 10.748 also issued under 19 U.S.C. 1202 (General Note 28, HTSUS) and Pub. L. 108-286, 118 Stat. 919 (19 U.S.C. 3805 note).

    § 10.725 [Amended]
    2. In § 10.725, paragraph (c) is amended by removing the language, “(see §§ 10.746 and 10.747 of this subpart)” and adding in its place the language, “pursuant to §§ 10.746 and 10.747 of this subpart”.
    R. Gil Kerlikowske, Commissioner. Approved: January 11, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-00628 Filed 1-14-16; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 12 [CBP Dec. 16-02] RIN 1515-AE07 Extension of Import Restrictions Imposed on Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods AGENCY:

    Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    This document amends Customs and Border Protection (CBP) regulations to reflect the extension of import restrictions on certain categories of archaeological material originating in Italy and representing the pre-Classical, Classical, and Imperial Roman periods of its cultural heritage, ranging in date from approximately the 9th century B.C. through approximately the 4th century A.D. The restrictions, which were originally imposed by Treasury Decision (T.D.) 01-06 and extended by CBP Decision (CBP Dec.) 06-01 and CBP Dec. 11-03 are due to expire on January 19, 2016. The Assistant Secretary for Educational and Cultural Affairs, United States Department of State, has determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists. Accordingly, these import restrictions will remain in effect for an additional five years, and the CBP regulations are being amended to reflect this extension until January 19, 2021. These restrictions are being extended pursuant to determinations of the United States Department of State made under the terms of the Convention on Cultural Property Implementation Act that implemented the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. CBP Dec. 11-03 contains the Designated List of archaeological material originating in Italy and representing the pre-Classical, Classical, and Imperial Roman periods to which the restrictions apply.

    DATES:

    Effective Date: January 19, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For legal aspects, Lisa L. Burley, Chief, Cargo Security, Carriers and Restricted Merchandise Branch, Regulations and Rulings, Office of International Trade, (202) 325-0215. For operational aspects, William R. Scopa, Branch Chief, Partner Government Agency Branch, Trade Policy and Programs, Office of International Trade, (202) 863-6554, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Pursuant to the provisions of the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention, implemented by the Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq.), the United States entered into a bilateral agreement with Italy on January 19, 2001, concerning the imposition of import restrictions on archeological material originating in Italy and representing the pre-Classical, Classical, and Imperial Roman periods. On January 23, 2001, the former U.S. Customs Service (now U.S. Customs and Border Protection (CBP)) published T.D. 01-06 in the Federal Register (66 FR 7399), which amended 19 CFR 12.104g(a) to indicate the imposition of these restrictions and included a list designating the types of archaeological material covered by the restrictions.

    Import restrictions listed in 19 CFR 12.104g(a) are “effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States. This period can be extended for additional periods not to exceed five years if it is determined that the factors which justified the initial agreement still pertain and no cause for suspension of the agreement exists” (19 CFR 12.104g(a)).

    Since the initial notice was published on January 23, 2001, the import restrictions were extended twice. First, on January 19, 2006, CBP published CBP Dec. 06-01 in the Federal Register (71 FR 3000) which amended 19 CFR 12.104g(a) to reflect the extension for an additional period of five years. Subsequently, on January 19, 2011, CBP published CBP Dec. 11-03 in the Federal Register (76 FR 3012) to extend the import restriction for an additional five-year period to January 19, 2016. CBP Dec. 11-03 also reflects an amendment to the Designated List to include the subcategory “Coins of Italian Types” as part of the category entitled “Metal,” pursuant to 19 U.S.C. 2604.

    On December 23, 2014, the Department of State received a request by the Government of the Republic of Italy to extend the Agreement. Subsequently, the Department of State proposed to extend the Agreement. After considering the views and recommendations of the Cultural Property Advisory Committee, the Assistant Secretary for Educational and Cultural Affairs, United States Department of State, determined that the cultural heritage of Italy continues to be in jeopardy from pillage of archaeological material representing the pre-Classical, Classical, and Imperial Roman periods and made the necessary determinations to extend the import restrictions for an additional five years. Diplomatic notes have been exchanged, reflecting the extension of those restrictions for an additional five-year period. Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect this extension of the import restrictions.

    The Designated List of Pre-Classical, Classical and Imperial Roman Period Archaeological Material from Italy covered by these import restrictions is set forth in CBP Dec. 11-03. The Designated List and accompanying image database may also be found at the following Internet Web site address: http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-agreements/italy.

    The restrictions on the importation of these archaeological materials from the Republic of Italy are to continue in effect for an additional five years. Importation of such material continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

    Inapplicability of Notice and Delayed Effective Date

    This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reasons, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

    Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

    Executive Order 12866

    It has been determined that this rule is not a significant regulatory action under Executive Order 12866.

    Signing Authority

    This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

    List of Subjects in 19 CFR Part 12

    Cultural property, Customs duties and inspection, Imports, Prohibited merchandise.

    Amendment to CBP Regulations

    For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

    PART 12—SPECIAL CLASSES OF MERCHANDISE 1. The general authority citation for part 12 and the specific authority citation for § 12.104g continue to read as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624;

    Sections 12.104 through 12.104i also issued under 19 U.S.C. 2612;

    § 12.104g [Amended]
    2. In § 12.104g, paragraph (a), the table is amended in the entry for Italy by removing the reference to “CBP Dec. 11-03” and adding in its place “CBP Dec. 16-02”. R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection. Approved: January 12, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-00735 Filed 1-14-16; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9745] RIN 1545-BL43 Minimum Value of Eligible Employer-Sponsored Plans and Other Rules Regarding the Health Insurance Premium Tax Credit; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations; correcting amendment.

    SUMMARY:

    This document contains corrections to final regulations (TD 9745) that were published in the Federal Register on Friday, December 18, 2015 (80 FR 78971). The final regulations are on the health insurance premium tax credit enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended by the Medicare and Medicaid Extenders Act of 2010, the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011, and the Department of Defense and Full Year Continuing Appropriations Act, 2011.

    DATES:

    This correction is effective January 15, 2016 and applicable December 18, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Shareen Pflanz at (202) 317-4718 (not a toll-free number).

    SUPPLEMENTARY INFORMATION: Background

    The final regulations (TD 9745) that are the subject of this correction are under section 36B of the Internal Revenue Code.

    Need for Correction

    As published, the final regulations (TD 9745) contains an error that may prove to be misleading and is in need of clarification.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Correction of Publication

    Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * *

    Par. 2. Section 1.36B-3 is amended by revising paragraph (d)(2)(i)(A) to read as follows:

    § 1.36B-3 Computing the premium assistance credit amount.

    (d) * * *

    (2) * * *

    (i) * * *

    (A) The enrollment premiums for the month (reduced by any amounts that were refunded); or

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration).
    [FR Doc. 2016-00701 Filed 1-14-16; 8:45 am] BILLING CODE 4830-01-P
    PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4022 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits AGENCY:

    Pension Benefit Guaranty Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in February 2016. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.

    DATES:

    Effective February 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Catherine B. Klion ([email protected]), Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)

    SUPPLEMENTARY INFORMATION:

    PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (http://www.pbgc.gov).

    PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

    The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for February 2016.1

    1 Appendix B to PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes interest assumptions for valuing benefits under terminating covered single-employer plans for purposes of allocation of assets under ERISA section 4044. Those assumptions are updated quarterly.

    The February 2016 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for January 2016, these interest assumptions are unchanged.

    PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

    Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during February 2016, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

    PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

    Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

    List of Subjects in 29 CFR Part 4022

    Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

    PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority:

    29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.

    2. In appendix B to part 4022, Rate Set 268, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates For PBGC Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 268 2-1-16 3-1-16 1.25 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 268, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates For Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 268 2-1-16 3-1-16 1.25 4.00 4.00 4.00 7 8
    Issued in Washington, DC, on this 11th day of January 2016. Philip R. Hertz, Deputy General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2016-00725 Filed 1-14-16; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0021] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to allow the bridge to operate in single leaf mode during day light hours, and a full closure (both bascule leafs in the closed-to-navigation position) during night time hours while work crews replace bridge decking. This deviation allows a single leaf opening with a one hour advance notice during the day, and remains in the closed-to-navigation position at night.

    DATES:

    This deviation is effective from 6 a.m. on February 27, 2016 to 6 p.m. on February 28, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0021] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Washington Department of Transportation has requested a temporary deviation from the operating schedule for the Montlake Bridge across the Lake Washington Ship Canal, at mile 5.2, at Seattle, WA. The deviation is necessary to accommodate work crews conducting timely bridge deck repairs.

    The Montlake Bridge in the closed position provides 30 feet of vertical clearance throughout the navigation channel, and 46 feet of vertical clearance throughout the center 60 feet of the bridge; vertical clearance references to the Mean Water Level of Lake Washington. When half the span is open with a single leaf, 46 feet of vertical clearance will be reduced throughout the center to 30 feet of the bridge.

    To facilitate this event, the north half of the bridge span, or single leaf, will open with at least a one hour advance notice provided to the bridge operator from 6 a.m. to 6 p.m. on February 27, 2016. From 6 p.m. on February 27, 2016 to 5 a.m. on February 28, 2016, the Montlake Bridge span will remain in the closed-to-navigation position, or full closure. Then, from 5 a.m. to 6 p.m. on February 28, 2016, the north half of the bridge span will open with at least a one hour advance notice to the bridge operator. The normal operating schedule for the Montlake Bridge operates in accordance with 33 CFR 117.1051(e).

    The deviation period is from 6 a.m. on February 27, 2016 to 6 p.m. on February 27, 2016 (north single leaf opening if a one hour notice is given); from 6 p.m. on February 27, 2016 to 5 a.m. on February 28, 2016 (remain in the closed-to-navigation position); from 5 a.m. on February 28, 2016 to 6 p.m. on February 28, 2016 (north single leaf opening if a one hour notice is given).

    Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergency vessels in route to a call when an hour notice is given to the bridge operator, and a single leaf opening will be provided. The Lake Washington Ship Canal has no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: January 11, 2016. Steven M Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-00654 Filed 1-14-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 70 [EPA-R07-OAR-2015-0790; FRL-9941-03-Region 7] Approval of Missouri's Air Quality Implementation Plans; Reporting Emission Data, Emission Fees and Process Information AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Operating Permits Program for the State of Missouri submitted on March 16, 2015. These revisions update the emissions fee for permitted sources as set by Missouri Statute from $40 to $48 per ton of air pollution emitted annually, effective January 1, 2016.

    DATES:

    This direct final rule will be effective March 15, 2016, without further notice, unless EPA receives adverse comment by February 16, 2016. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0790, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Krabbe, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7991 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

    I. What is being addressed in this document? II. Have the requirements for approval of a SIP revision been met? III. What action is EPA taking? I. What is being addressed in this document?

    EPA is taking direct final action to approve the Operating Permits Program revision submitted by the state of Missouri for 10 CSR 10-6.110, “Reporting Emission Data, Emission Fees, and Process Information,” on March 16, 2015. Section (3)(A) revised the emission fees section, which is approved under the Operating Permits Program only, and updates the emissions fee for permitted sources as set by Missouri Statute from $40 to $48 per ton of air pollution emitted annually, effective January 1, 2016, as set by Missouri statute.

    II. Have the requirements for approval of an operating permits program been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

    III. What action is EPA taking?

    We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to this Operating Permits Fee revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    Incorporation by Reference

    In this action, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The action is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 15, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: December 23, 2015. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, the EPA amends 40 CFR parts 52 and 70 as set forth below:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 2. Amend § 52.1320(c) by revising the entry for 10-6.110 to read as follows:
    § 52.1320 Identification of Plan.

    (c) * * *

    EPA-Approved Missouri Regulations Missouri citation Title State effective date EPA approval date Explanation Missouri Department of Natural Resources *         *         *         *         *         *         * Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri *         *         *         *         *         *         * 10-6.110 Reporting Emission Data, Emission Fees, and Process Information 11/20/14 1/15/16 [Insert Federal Register citation] Section (3)(A), Emissions Fees, has been updated from $40 to $48 per ton of air pollution emitted annually, effective January 1, 2016. *         *         *         *         *         *         *
    PART 70—STATE OPERATING PERMIT PROGRAMS 3. The authority citation for part 70 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    4. Appendix A to part 70 is amended by adding new paragraph (ee) under Missouri to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Missouri

    (ee) The Missouri Department of Natural Resources submitted revisions to Missouri rule 10 CSR 10-6.110, “Reporting Emission Data, Emission Fees, and Process Information” on March 16, 2015. The state effective date is November 20, 2014. This revision is effective March 15, 2016.

    [FR Doc. 2016-00191 Filed 1-14-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Parts 262, 264, and 265 RIN 0970—AC56 Temporary Assistance for Needy Families (TANF) Program, State Reporting On Policies and Practices To Prevent Use of TANF Funds in Electronic Benefit Transfer Transactions in Specified Locations AGENCY:

    Office of Family Assistance (OFA), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).

    ACTION:

    Final rule.

    SUMMARY:

    This final rule makes regulatory changes to the Temporary Assistance for Needy Families (TANF) regulations to require states, subject to penalty, to maintain policies and practices that prevent TANF funded assistance from being used in any electronic benefit transfer transaction in any liquor store; any casino, gambling casino, or gaming establishment; or any retail establishment that provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment. This rule implements provisions of Section 4004 of the Middle Class Tax Relief and Job Creation Act of 2012.

    DATES:

    Effective Date: Provisions of this final rule become effective January 15, 2016.

    Compliance Date: For states, the District of Columbia, and territories (hereafter referred to as states), HHS will determine compliance with provisions in this final rule through review and approval of reports that states submit annually. Initial reports describing the policies and practices states implemented were due on February 22, 2014. All states submitted reports by this deadline. Hereafter, states will submit reports describing the policies and practices required by 45 CFR 264.60 and Section 4004 of the Middle Class Tax Relief and Job Creation Act of 2012 in the Annual Report on TANF and maintenance-of-effort (MOE) Programs in accordance with 45 CFR 265.9(b)(10). As provided at 45 CFR 265.10, this report is due by November 14 of each fiscal year, which is the same time as the fourth quarter TANF data report, as provided in 45 CFR 265.4.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Shwalb, Office of Family Assistance, 202-260-3305 (not a toll-free call). Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8:00 a.m. and 7:00 p.m. Eastern Time.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Notice of Proposed Rulemaking III. Overview of Final Rule IV. Statutory Authority V. Section-by-Section Discussion of Comments and Regulatory Provisions Part 262—Accountability Provisions—General Section 262.1 What penalties apply to States? Section 262.2 When do the TANF penalty provisions apply? Section 262.3 How will we determine if a State is subject to a penalty? Part 264—Other accountability provisions: Subpart A—What specific rules apply for other program penalties? Section 264.0 What definitions apply to this part? Section 264.60 What policies and practices must a State implement to prevent assistance from being used in electronic benefit transfer transaction in locations prohibited by the Social Security Act? Section 264.61 What happens if a State fails to report or demonstrate it has implemented and maintained the policies and practices required in § 264.60 of this subpart? Part 265—Data Collection and Reporting Requirements Section 265.9—What information must the State file annually? VI. Paperwork Reduction Act VII. Regulatory Flexibility Act VIII. Regulatory Impact Analysis IX. Unfunded Mandates Reform Act of 1995 X. Congressional Review XI. Executive Order 13132 XII. Treasury and General Government Appropriations Act of 1999 I. Background

    Authorized by title IV-A of the Social Security Act, TANF is a block grant that provides states, territories, and tribes federal funds to design and operate a program to accomplish the purposes of TANF. The purposes are to: (1) Assist needy families so that children can be cared for in their own homes or in the homes of relatives; (2) reduce the dependency of needy parents by promoting job preparation, work, and marriage; (3) prevent out-of-wedlock pregnancies; and (4) encourage the formation and maintenance of two-parent families. In addition to federal TANF block grant funds, each state must spend a certain minimum amount of non-federal funds to help eligible families in ways that further a TANF purpose. This is referred to as maintenance-of-effort (MOE).

    In general, federal TANF and state MOE funds may be expended on benefits and services targeted to needy families, and activities that aim to prevent and reduce out-of-wedlock pregnancies or encourage the formation and maintenance of two-parent families, as well as administrative expenses. In particular, federal TANF and state MOE funds may be expended on “assistance,” defined at 45 CFR 260.31(a)(1) as including cash payments, vouchers, and other forms of benefits designed to meet a family's ongoing basic needs (i.e., food, clothing, shelter, utilities, household goods, personal care items, and general incidental expenses). Assistance also includes supportive services such as transportation and child care provided to families who are not employed (see 45 CFR 260.31(a)(3)). TANF funds also can be used for a wide range of benefits and services that do not fall within the definition of assistance; such expenditures are considered “non-assistance.” This rule pertains only to assistance expenditures.

    Based on the most recent information provided to us by states, there are currently four means that states use to provide assistance payments to eligible low-income families with children: Paper checks, Electronic Funds Transfers (EFT), Electronic Benefit Transfer (EBT) cards, and Electronic Payment Cards (EPC). Most states have replaced paper checks with one or more of the other three delivery methods in order to provide benefits in a timelier manner, reduce theft and fraud, and eliminate the need for recipients to pay check-cashing fees. Some states automatically transfer assistance payments directly into a recipient's own private bank account through EFT. However, this option is not available if a recipient does not have access to or qualify for a checking account. Most states load the amount of assistance on EBT cards or EPCs, both of which allow recipients to use a debit-like card to access their benefits through automated teller machines (ATMs) and point-of-sale (POS) devices. EPCs differ from government EBT cards in that they are network-branded (e.g., Visa or MasterCard) prepaid cards that recipients may use virtually anywhere the brand's logo is displayed. EBT cards may be used in fewer locations, as retailers and ATMs must be authorized to accept EBT cards.

    Among its provisions, the Middle Class Tax Relief and Job Creation Act of 2012, Public Law (Pub. L.) 112-96, requires states to maintain policies and practices to prevent TANF assistance from being used in any EBT transaction (as defined at 42 U.S.C. 608(a)(12)(B)(iii)) in any liquor store; any casino, gambling casino, or gambling establishment; or any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment.

    The legislation at Section 4004(b) also imposes a new reporting requirement as well as a new penalty. Each state is required to report annually to the Department of Health and Human Services (HHS) on its implementation of policies and practices related to restricting recipients from using their TANF assistance in EBT transactions at the prohibited locations. HHS will reduce a state's block grant by not more than five percent of the state family assistance grant in fiscal year (FY) 2014 and annually thereafter if the state fails to comply with this reporting requirement or if, based on the information that the state reports, HHS finds that the state has not implemented and maintained the required policies and practices. The statute provides the Secretary of HHS the authority to reduce the amount of the penalty based on the degree of noncompliance of the state.

    Finally, states are required under Section 4004(c) of Public Law 112-96 to include in their state TANF plans a statement outlining how they intend to implement policies and procedures to prevent access to assistance through EFTs at casinos, liquor stores, and establishments providing adult-oriented entertainment. The state plan also must include an explanation of how the state will ensure that (1) recipients of the assistance have adequate access to their cash assistance, and (2) recipients of assistance have access to using or withdrawing assistance with minimal fees or charges, including an opportunity to access assistance with no fee or charges; are provided information on applicable fees and surcharges that apply to electronic fund transactions involving the assistance; and that such information is made publicly available. This rule does not regulate the state plan provisions at Section 4004(c) of Public Law 112-96, but it incorporates the statutory state plan language under the Middle Class Job Creation and Tax Relief Act of 2012. Following publication of the final rule, HHS plans to issue additional guidance regarding the adequate access provision.

    II. Notice of Proposed Rulemaking

    HHS published a notice of proposed rulemaking (NPRM) (79 FR 7127) on February 6, 2014, to regulate the TANF provisions in Section 4004(a) and (b) of Public Law 112-96. The proposed rule added new penalties for failure to report or adequately demonstrate implementation of the requirements outlined in Public Law 112-96, defined terms relevant to the new requirements, specified when the penalty takes effect, and identified how HHS will determine whether a state warrants a penalty. It also provided details regarding what types of policies and practices HHS would accept as complying with the statutory requirements. In addition to general comments, the NPRM sought input from commenters regarding two specific issues: TANF assistance deposited directly in recipients' bank accounts and accessed with a personal debit card, and internet transactions.

    HHS received a total of 28 comments, including comments from six states, seven membership and research/advocacy organizations, and three EBT industry organizations. The remaining commenters were members of the public. We include a detailed summary of comments as well as HHS's responses to comments in Section V of this final rule. Public comments on the proposed rule are available for review on www.regulations.gov.

    III. Overview of Final Rule

    The final rule amends the TANF program regulations in the following three ways: (1) It adds a requirement to implement policies and practices to prevent TANF assistance from being used in any electronic benefit transfer transaction in any: liquor store; any casino, gambling casino or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment, (2) it adds a requirement to report on policies and practices in an annual report, and (3) it adds a penalty for failure to report on implementation and maintenance of these policies and practices. In response to comments on the proposed rule, we have made changes in the final rule where appropriate to address policy and other concerns raised by commenters, as well as to incorporate suggested clarifications and improvements. In this section, we provide an overview of the final rule and generally describe major changes in response to comments. A more detailed summary of comments in each area and reason for changes is included in the section-by-section discussion of comments later in this final rule.

    (1) When incorporating the requirement at 45 CFR 264.60 to implement policies and practices to prevent TANF assistance from being used in any electronic benefit transfer transaction in any liquor store; any casino, gambling casino or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment, we mirror the statutory language at Section 4004(a) of Public Law 112-96. The preambles to the NPRM and the final rule provide details on the types of policies and practices HHS would accept as complying with the statutory requirements, and identify those that do not. In doing so, we identify that different approaches may be acceptable depending on the method of delivery (EBT, EPC, or direct deposit). We also correct an error we made in the NPRM suggesting that bank identification number (BIN) blocking was a potential approach to preventing TANF assistance from being used in POS terminals in the specified locations. Finally, we reiterate that states have a responsibility to develop appropriate policies for preventing TANF cash assistance administered by state programs from being used at any of the three types of businesses, including those located on tribal land. In general, we have provided flexibility in meeting the statutory and regulatory requirements so that states may develop cost-effective implementation strategies that fit within the existing structures of state operations.

    We also have added the relevant accompanying definitions to the TANF regulations at 45 CFR 264.0. Regarding the definitions of the three types of establishments, we have made some changes to those we proposed in the NPRM. For example, we are striking from our definition of “retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment,” the language, “such an establishment that prohibits the entrance of minors under the age specified by state law.” Commenters noted that local ordinances, rather than state law, apply to such establishments, and can vary considerably from jurisdiction to jurisdiction. Since we are no longer expanding upon the statutory definition, we have deleted the definition of “retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment” from § 264.0. Rather, we encourage states to exercise the flexibility provided by the statute to build on the required restrictions with respect to these establishments, consistent with state and local policies. Furthermore, in response to comments suggesting we quantify the term “primarily” in the definitions for “casino, gambling casino, or gaming establishment” and “liquor store,” we will defer to states' reasonable interpretation of the law. Additionally, we interpret Congress's use of “liquor” to refer to alcoholic beverages broadly, rather than a narrow definition that excludes alcoholic beverages such as beer and wine.

    We are clarifying that the broad definition of “electronic benefit transfer transaction” includes transactions using or accessing TANF funds in private bank accounts because those funds may be accessed by a TANF recipient in a manner that the statutory definition specifies, i.e., through use of a credit or debit card, ATM, point-of-sale terminal, or an online system for the withdrawal of funds or the processing of a payment. We subsequently discuss, see the discussion of § 264.60, examples of policies and practices that HHS considers acceptable with regard to personal accounts and debit cards. We reiterate that the language used demonstrates that Congress intended to apply the requirements in Public Law 112-96 to EPCs. At the same time, we agree with all commenters that Congress did not intend to apply the requirements to internet transactions, pointing to language in the statute such as “establishment,” “store,” “located in a place,” and “transactions in.”

    (2) In order to add the requirement to report on relevant policies and practices to the TANF regulations, we are amending 45 CFR parts 262, 264, and 265. The regulations at 45 CFR 262.3 and 264.61 tie the reporting requirement to the penalty specified at 45 CFR 262.1(a)(16). We reiterate that we are requiring an annual EBT report in order to determine whether states have maintained the required policies and practices in each fiscal year following FY 2014. One commenter suggested that the statute does not provide authority for annual reporting, maintaining that the statute obligates HHS to impose a penalty only if a state fails to submit one required report; that state would be subject to a penalty for FY 2014 (for its failure to report by February 22, 2014) and each fiscal year until it submits a report. We disagree with this interpretation and do not believe that it comports with the statute.

    In response to suggestions for ways to ease the reporting burden, we have incorporated this reporting requirement in the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b)(10), rather than requiring the submission of a separate EBT report. Accordingly, we are amending the regulation at 45 CFR 265.9(b).

    We continue to require that the reports address specific areas that will allow us to determine whether states have implemented policies and practices that comply with the statutory requirements. The NPRM identified these areas as follows: Identifying locations; methods to prevent use of TANF assistance via EBT transactions in restricted locations; monitoring; and enforcement of compliance. With this final rule, we are providing clearer descriptions of the type of information we are requesting. For example, we have amended the request for information on “monitoring,” to “ongoing monitoring to ensure policies are being carried out as intended,” and instead of “enforcement of compliance,” this component should read “responding to findings of non-compliance or program ineffectiveness.” This way, we do not imply that specific practices, such as monitoring of transaction reports, are required. At the same time, we would like reports to describe how states will review and evaluate the policies and practices implemented, and correct for non-compliance and ineffectiveness. In sum, in 45 CFR 265.9(b)(10), the four areas we are requiring states to address in their reports are: (1) Procedures for preventing the use of TANF assistance via electronic benefit transfer transactions in any liquor store; any casino, gambling casino, or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment; (2) how the state identifies the locations specified in the statute; (3) procedures for ongoing monitoring to ensure policies are being carried out as intended; and (4) how the state responds to findings of non-compliance or program ineffectiveness. Finally, we have reduced the burden hour estimate described in the Paperwork Reduction Act section of this final rule, as initial reports have been submitted and subsequent reports should not be as time-consuming.

    (3) We are amending 45 CFR 262.1 and 264.61 to add the penalty for failure to report or demonstrate implementation and maintenance of these policies and practices. At 45 CFR 262.62, we specify that this penalty will be imposed for FY 2014 and each succeeding fiscal year in which a state fails to submit a report that demonstrates it has implemented and maintained the relevant policies and practices. Even though one commenter suggested that this approach exceeds our statutory authority, we maintain that the statute allows HHS to impose a penalty in “each succeeding fiscal year in which the State does not demonstrate that such State has implemented and maintained such policies and practices.” Furthermore, in response to commenters' recommendations, we have added language to the regulation related to reducing the penalty based on the degree of noncompliance. We also clarify in the regulations that states are not held responsible for individuals' fraudulent activities, as provided by the statute.

    IV. Statutory Authority

    This final rule is being issued under the authority granted to the Secretary of Health and Human Services (HHS) by the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96), Section 408 of the Social Security Act (42 U.S.C. 608), Section 409 of the Social Security Act (42 U.S.C. 609), and Section 1102 of the Social Security Act (42 U.S.C. 1302), which authorizes the Secretary to make and publish such rules and regulations, not inconsistent with the Act, as may be necessary to the efficient administration of functions under the Act.

    The statute at 42 U.S.C. 617 limits the authority of the federal government to regulate state conduct or enforce the TANF provisions of the Social Security Act, except as expressly provided. We have interpreted this provision to allow us to regulate where Congress has charged HHS with enforcing certain TANF provisions by assessing penalties. Because the legislation includes a TANF penalty, HHS has the authority to regulate in this instance.

    V. Section-by-Section Discussion of Comments and Regulatory Provisions Part 262—Accountability Provisions—General

    The final rule in part 262 adds new penalties for failure to report or adequately implement the new requirements outlined in Public Law 112-96, specifies when a penalty takes effect, and identifies the reporting form that HHS will use to determine whether a state warrants a penalty.

    Section 262.1 What penalties apply to States?

    Sec. 4004(b) of Public Law 112-96 at Sec. 409(a)(16) of the Social Security Act (the Act) creates a new TANF penalty. As provided in the statute, the penalty will be imposed if a state fails to report to HHS its implementation of the policies and practices to prevent assistance provided under the state program funded under this part from being used in any electronic benefit transfer transaction in: (i) Any liquor store; (ii) any casino, gambling casino, or gaming establishment; or (iii) any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment. Furthermore, HHS may impose a penalty if it determines, based on the information provided in a state report, that the state has not demonstrated that it has implemented and maintained such policies and practices. This penalty may be imposed for FY 2014 and each succeeding fiscal year in which a state does not demonstrate that it has implemented and maintained such policies and practices. If HHS determines that the state should be subject to a penalty, it will reduce the state family assistance grant in the succeeding fiscal year by five percent, or a lesser amount based on the degree of noncompliance. States should note that the regulations at 45 CFR 262.4 through 262.7, concerning the processes for appealing a penalty, presenting a reasonable cause justification, and submitting a corrective compliance plan, apply to the new penalty added to 45 CFR 262.1.

    Accordingly, this final rule adds paragraph (i) to § 262.1(a)(16) to provide that a penalty of not more than five percent of the adjusted State Family Assistance Grant (SFAG) will be applied for failure to report annually as part of the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b)(10), on the state's implementation of policies and practices related to these prohibited EBT transactions. The final rule also adds paragraph (a)(16)(ii) to provide that a penalty likewise will be applied for FY 2014 and each succeeding fiscal year if the state does not demonstrate that it has implemented and maintained such policies and practices. Note that if a state fails to submit a report for a fiscal year and, when it ultimately submits a report, also fails to demonstrate its implementation of policies and practices, the combined penalty will not exceed five percent of its adjusted SFAG. Conforming changes have been made at § 262.1(c)(2) to add reference to the penalties in paragraphs (a)(16)(i) and (ii).

    Comment: A few commenters remarked on the penalty calculation, suggesting that the rule mirror the statute's allowance for the Secretary to reduce penalties based on the degree of noncompliance and clarify that states are not responsible for fraudulent activity by any individual receiving TANF assistance in an attempt to circumvent the policies and practices required by section 608(a)(12). Further, commenters were concerned that the proposed rule does not adequately explain how the “degree of noncompliance” will be determined or how it would be translated into the penalty amount.

    Response: While we included language related to reducing the penalty based on the degree of noncompliance and clarifying that states are not held responsible for individuals' fraudulent activities in the preamble of the NPRM, we agree that this language should also be added to the regulation. We have added language in §§ 262.1(a)(16) and 264.61 to address the statutory provisions. At the same time, we note that while states are not held responsible for an individual's fraudulent activities, reoccurring fraudulent activity could be an indication of deficiencies in a state's policies and practices and should be addressed.

    When determining “degree of noncompliance” with respect to reports submitted after the deadline, the Secretary may take into account factors such as the length of time a report was late and any extenuating circumstances that may have caused late reporting. When determining “degree of noncompliance” with respect to inadequate policies and practices, the Secretary may consider the steps taken to develop policies to comply with the requirements (even if not fully implemented), whether there are procedures related to identifying some or all of the types of locations specified in the statute, whether procedures take into account transactions at both ATMs and POS terminals, and whether the state provides information for some or all of the components required in the annual report (described later in this preamble).

    Comment: One individual commented that imposing a penalty will be counterproductive because financial sanctions may inhibit a state's ability to implement EBT policies and practices, suggesting we increase the compliant states' block grants, provided that they consult and provide technical assistance to non-compliant states.

    Response: The statute requires a penalty for failure to meet the requirements of the statute; however, before we impose a financial penalty, states may request reasonable cause or submit a corrective compliance plan in response to a penalty, as provided at sections 409(b) and (c) of the Social Security Act. We do not have the authority to increase compliant states' block grants.

    Section 262.2 When do the TANF penalty provisions apply?

    The final rule amends § 262.2 to add new paragraph (e) indicating that the penalty for failure to report on how the state is implementing and maintaining policies and practices to prevent assistance from being used in electronic benefit transfer transactions in specified locations will be imposed for FY 2014 and each succeeding fiscal year in which the state does not demonstrate it has implemented and maintained the policies and practices in accordance with 45 CFR 264.60.

    Comment: One state commented that the statute does not require an annual reporting requirement. Rather, the commenter argued the statute required HHS to impose a penalty on an annual basis on states that had not submitted a report by February 22, 2014, and each subsequent year it had still not submitted a report. In other words, if a state submitted its initial report that describes the policies it implemented and how it will maintain them, it had met the requirements of the law and can no longer be subject to a penalty. On the other hand, a state that did not submit the initial report by February 22, 2014, would be subject to a penalty for FY 2014, as well as each fiscal year until it submits a report.

    Response: We do not agree with this interpretation and do not believe that the statutory requirements, particularly the requirement that states demonstrate that they are implementing and maintaining the relevant policies and practices, can be met through a one-time report. The statute provides that HHS shall impose a penalty in “each succeeding fiscal year in which the State does not demonstrate that such State has implemented and maintained such policies and practices.” Through these reports, we must assess whether states are implementing and maintaining EBT policies and practices to determine whether or not we should impose a penalty.

    Section 262.3 How will we determine if a State is subject to a penalty?

    This final rule amends § 262.3 by adding a new paragraph (g) to specify that in order to determine if a state is subject to a penalty under 45 CFR 262(a)(16)(i) and (ii), HHS will use the submission of the initial report that was due by February 22, 2014, and beginning in FY 2015, the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b)(10). We are amending the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b) in order to include reporting for electronic benefit transfer transaction policies and practices. The Annual Report on TANF and MOE Programs at 45 CFR 265.9(b) is due at the same time as the fourth quarter TANF data report, within 45 days following the end of the fourth quarter. Note that this reporting requirement is distinct from the provisions of Public Law 112-96 related to additional state plan requirements (see Sec. 4004(c)).

    Comment: We received a number of comments raising concerns about a separate annual electronic benefit transfer transaction report requirement. They argued this requirement places an undue reporting burden on states and contradicts the intent of the statute. One commenter believed that because the statute requires states to describe their EBT policies and practices in the state plan, they will already be providing consistent reports on implementation, and should not be required to submit an additional report. A number of states recommended we use the state plan or the Annual Report on TANF and MOE programs as the reporting mechanism.

    Response: We agree that the Annual Report is an effective reporting mechanism and will ease the reporting burden on states. As described below, with this final rule, we are amending § 265.9(b) of the TANF regulations to add to the annual report a section for states to describe their policies and practices related to electronic benefit transfer transactions.

    Part 264—Other Accountability Provisions Subpart A—What specific rules apply for other program penalties?

    The final part 264 explains in further detail what HHS expects of states when implementing the new requirements of Public Law 112-96 by specifying the policies and practices required, providing relevant definitions, and addressing consequences if a state fails to meet the requirement.

    Section 264.0 What definitions apply to this part?

    In order to clarify the types of locations where states are required to prohibit the use of TANF assistance via electronic benefit transfer transactions and to ensure that the policies and practices are applied consistently between states, we are amending § 264.0(b) to define the terms included in Section 4004 of Public Law 112-96. The following is a discussion of the definitions of the terms in alphabetical order.

    Casino, Gambling Casino, or Gaming Establishment: As we mentioned in the NPRM, the statute provides exclusions to the phrase “casino, gambling casino, or gaming establishment,” but does not provide a further definition. One such exclusion refers to establishments that offer casino, gambling, or gaming activities incidental to the principal purpose of the business. With this exclusion in mind, we proposed to interpret the statutory reference to “casino, gambling casino, or gaming establishment” to mean an establishment with a primary purpose of accommodating the wagering of money. Based on the statutory definition provided, this does not include a grocery store which also offers, or is located within the same building or complex as a, casino, gambling, or gaming activities, or any other establishments where such activities are incidental to the principal purpose of the business. We are not making any changes to this proposed definition in this final rule.

    Comment: Generally, commenters agreed with our definition, but also provided suggestions to address specific concerns. For example, one state and one advocacy organization stated the definition does not address co-joined businesses such as a hotel, grocery store, or restaurant connected to or within the casino. In order to clarify the definition and ensure that it could not be interpreted broadly, one commenter recommended that we add language that prohibits the entrance of minors under the age specified by state law, similar to that in the proposed definition of “Retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment.”

    Response: We disagree that language that related to prohibiting the entrance of minors under the age specified by state law is necessary, and we do not believe it solves the problem the commenters identified. The law addresses co-joined businesses by excluding from the definition a grocery store which also offers, or is located within the same building or complex as a casino, gambling, or gaming activities. We defer to a state's reasonable interpretation of the statute, to determine what other types of establishments that the statute excludes from the definition of “casino, gambling casino, or gaming establishment,” including co-joined businesses.

    Comment: One state is concerned with the phrase, “an establishment with a primary purpose of accommodating the wagering of money.” The regulatory definition does not quantify what “primarily” means. Because this is one area where regulations could provide consistency between states, it recommends establishing criteria states can apply in making this determination.

    Response: We defer to states' reasonable interpretations on this part of the definition. States may have different approaches of determining whether a business satisfies this standard, and we do not find it necessary to draw a line, or to impose uniformity here, while we provide flexibility in other areas.

    Electronic Benefit Transfer Transactions: The final rule will incorporate the statutory definition of “electronic benefit transfer transaction,” which is “the use of a credit or debit card service at an automated teller machine, point-of-sales terminal, or access to an online system for the withdrawal of funds or the processing of a payment for merchandise or service.”

    Comment: Our NPRM noted the broad nature of this language and that questions had been raised about whether it includes TANF assistance deposited directly by a state into a recipient's bank account (i.e., via EFT) and accessed with a personal debit card. We requested comments related to whether states and banks have, or reasonably could have, the capacity to apply the EBT transaction restrictions to assistance funds deposited in private bank accounts and to monitor whether recipients use such funds in a prohibited manner. We received many comments responding to this request, all of which were in agreement that the requirements should not be applied to personal debit cards, supporting their recommendations with information pertaining to the following: (1) Infeasibility, (2) negative consequences that would result from applying the requirements to personal debit cards, and (3) Congressional intent.

    Although one commenter acknowledged that it may be theoretically possible for a deposit account to consist of a sub-account for TANF funds and a subaccount for all other funds, all agreed that implementing such a requirement would be practically infeasible. If implemented, the banks would face requirements to identify customers who receive cash benefits, determine the dollars in a checking or savings account that are “TANF” dollars versus wages or other income from the state, such as child support. Requiring the entire United States banking system to develop the appropriate capabilities (TANF funds recipients could have deposit accounts at any of the nearly 7,000 banks and thousands more credit unions in the U.S.) would result in an extraordinary burden and high costs. While one commenter stated that the banks would need to develop the ability to monitor where funds are used, as there is no current mechanism for a state to monitor the use of such funds, another stated that current bank infrastructure could not support identification of individual retailers. Commenters emphasized that the capacity and infrastructure to apply the requirements to personal bank accounts/debit cards simply do not exist at this point, and the costs that would need to be devoted to this effort would not outweigh the benefit.

    A few commenters maintained that because states could not actually implement procedures in order to comply with this requirement, they would have to discontinue the option of direct deposit. One commenter maintained that even if states provided the option of direct deposit, the difficulties with applying the statutory requirement to TANF assistance in personal bank accounts would provide disincentives for banks to work with TANF customers. Commenters argued these would be unfortunate consequences of this legislation because there are many benefits of being “banked” (e.g., the ability to avoid unnecessary fees for accessing benefits and paying bills, promoting savings and financial management, permitting TANF recipients to build a credit history, etc.). Commenters emphasized that diminishing the ability of TANF recipients to establish and maintain bank accounts conflicts with the broader TANF goals of promoting work and self-sufficiency, and that HHS should be encouraging states to provide benefits through direct deposit, not discouraging it.

    Finally, a number of commenters maintained that Congress did not intend to include transactions with personal debit cards within the definition of “electronic benefit transfer transaction” in Public Law 112-96, and that only accounts established by a government agency were intended to fall within Congress's definition of EBT systems.

    Ultimately, all commenters recommended that the restrictions not extend to TANF funds deposited into private bank accounts. One advocacy group recommended that if, in the future, there is sufficient evidence that TANF assistance recipients' use of bank accounts to purchase prohibited goods and services threatens the integrity of the TANF program, any new expansion of the current restrictions should be added only within the context of a full TANF reauthorization.

    Response: HHS considered all of the comments received. The broad statutory definition of “electronic benefit transfer transaction,” applies to TANF funds deposited in private bank accounts because the funds can be accessed using a credit or debit card, ATM, point-of-sale terminal, or an online system for the withdrawal of funds or the processing of a payment. However, HHS recognizes that TANF recipients may have private bank accounts that include TANF funds as well as income from other sources, including earnings from employment, refundable tax credits for working families, and child support. Because there is currently no feasible way to distinguish TANF funds from other sources in a private bank account, states are responsible for implementing policies and practices that apply to transactions using or accessing TANF funds directly deposited in private bank accounts, only in cases where TANF is the sole source of funds in those accounts. Further, given the current state of technology, we have concluded that there is no feasible enforcement mechanism for funds in private bank accounts, and therefore the state may meet the requirements of this regulation by providing notice to recipients that they cannot access TANF funds from private bank accounts at a prohibited location.

    Comment: One state maintained that the definition of “electronic benefit transfer transaction” should not include EPCs, which the state described as “non-government issued, payee owned, pre-paid debit card loaded via `electronic funds transfer.'” The commenter maintained that only accounts established by a government agency were intended to fall within Congress's definition of EBT systems.

    Response: HHS disagrees with the state's reading of the statute, given the definition of “electronic benefit transfer transaction” is so broad, as discussed above.

    Comment: We received many comments regarding whether or not internet transactions should be included in the definition of “electronic benefits transfer transaction.” All commenters agreed that the regulations should not extend to internet transactions, particularly at this time. A few commenters noted that language in the statute, such as “establishment,” “store,” “located in a place,” and “transaction in,” suggests that the intent of Congress was to prevent TANF benefits from being used at certain physical locations. One commenter stated that the term “online system” in the definition of “electronic benefit transfer transaction” is vague because one may interpret it as payments made in near real time, such as the use of debit cards for purchases at a merchant location, or as the purchase of goods and services over the internet. The commenter argued most consumers understand “online system” to include purchases of goods and services via the internet, but suggests that we clarify this in the regulation. Another commenter argued that Congress intended to create an enforceable approach by limiting transactions to physical locations. While this comment did not object on principal to regulating internet transactions, it, along with responses from other commentators, explained that the logistics of applying this restriction to internet transactions would be unfeasible. Some comments suggested that the restrictions should apply if and when states can feasibly monitor such transactions and/or when data shows that online TANF assistance spending on prohibited goods and services becomes a major problem.

    Response: We agree the terms “establishment,” “store,” “located in a place,” and “transaction in” point to Congress's intent to apply the requirements only to physical locations and not internet transactions. Therefore, the regulations do not apply to web-based transactions. If the technology allows, a state has the flexibility to restrict internet transactions with EBT cards, but federal law does not require it.

    Liquor Store: The final rule will incorporate the statutory definition of “liquor store,” which is “any retail establishment which sells exclusively or primarily intoxicating liquor. Such term does not include a grocery store which sells both intoxicating liquor and groceries including staple foods (within the meaning of section 3(r) of the Food and Nutrition Act of 2008 (7 U.S.C. 2012(r))).”

    Comment: Five commenters commented on the definition of “liquor store,” with most supporting the approach of mirroring the definition in the statute. We also received a few recommendations for clarifying the definition. For example, one state highlighted the fact that the regulatory definition does not quantify what “primarily” means, and that this is one area where regulations could provide consistency between states by establishing certain criteria states can apply in making this determination.

    Response: Regarding the recommendation to quantify what “primarily” means, just as in the definition of “casino, gambling casino, or gaming establishment,” we defer to states' reasonable interpretations on this part of the definition. States may have different ways of determining whether a business satisfies this standard, and we do not find it necessary to draw a line, or to impose uniformity here, while we provide flexibility in other areas.

    Comment: A few commenters pointed out that “liquor” has a very specific definition that sets it apart from other types of alcoholic beverages such as beer and wine. The commenters maintained that since the term “liquor” is used instead of “alcohol,” places that sell beer and wine only do not fall under this definition. They recommended that states should be given the flexibility to implement the definition in a way that best suits their state and local laws and population.

    Response: We disagree and continue to interpret Congress's use of “liquor” to refer to alcohol broadly, including beer and wine, so that the term “liquor store” is inclusive of locations that serve primarily alcoholic beverages.

    Retail Establishment which Provides Adult-Oriented Entertainment in which Performers Disrobe or Perform in an Unclothed State for Entertainment: In the NPRM we proposed to clarify the intended locations to which restrictions apply, by adding “such an establishment that prohibits the entrance of minors under the age specified by state law” to the statutory definition. However, after considering the comments received and for the reasons discussed in the response below, we have decided against adding this language to the statutory definition. Since we are no longer expanding upon the statutory definition, we are not including this term in the list of definitions at 45 CFR 264.0 of the final regulation.

    Comment: Seven commenters commented on the proposed definition of “retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment.” Only one commenter believed that it accurately described the types of locations where Congress intended to restrict access, and provided states with sufficient clarity to implement these provisions. All other commenters expressed concern about the statement we proposed to add to the statutory definition. They believed the proposed regulation expands the scope of prohibited establishments as it might be read to include book stores or establishments that serve liquor by the drink, and maintained that the statutory wording is clear and should be retained. Some comments also noted that not all states have a state law establishing entrance restrictions based on age with respect to places that provide entertainment where performers disrobe or perform in an unclothed state. In many states, local ordinances rather than state law apply to such establishments, and can vary considerably from jurisdiction to jurisdiction.

    Response: While we disagree that the addition of “such an establishment that prohibits the entrance of minors under the age specified by state law” expands the scope of prohibited establishments, we understand it can be problematic given the variation among states regarding whether state laws or local ordinances apply to these types of establishments. We are therefore removing this language and encourage states to exercise the flexibility provided by the statute to build on the required restrictions, with respect to any of these types of establishments, consistent with state and local policies. The term “retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment” itself is descriptive and specific, so we have decided it is not necessary to add a definition at § 264.0.

    Comment: One commenter noted that we interpreted the statutory definition as applying beyond live entertainment, specifically to theaters and cinemas where state law prohibits entrance to minors under the age specified by state law. This commenter recommended that the restriction be limited to establishments that provide live entertainment.

    Response: We disagree that the statute applies only to establishments that provide live adult entertainment. We see no reason to exclude stores and theaters that exclusively or primarily sell or feature adult-oriented videos and movies.

    Section 264.60 What policies and practices must a State implement to prevent assistance from being used in electronic benefit transfer transaction in locations prohibited by the Social Security Act?

    This final rule adds § 264.60 under subpart A, which requires states to implement policies and practices to prevent assistance (defined at § 260.31(a)) provided with federal TANF or state TANF MOE funds from being used in any electronic benefit transfer transaction in any: (a) Liquor store; (b) casino, gambling casino or gaming establishment; or (c) retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment. The NPRM often used the phrase “policies and procedures” in the discussion of this section. The final rule revises the language, instead referring to “policies and practices,” in order to mirror the statutory language. As we proposed in the NPRM, HHS will accept any reasonable approaches that further these goals and comply with the statutory and regulatory requirements. States' policies and practices must prohibit the use of TANF funds at the specified locations, while ensuring reasonable access to cash assistance, as directed by Congress.

    Comment: We received several comments from states supporting our statements in the NPRM that states would have “flexibility in determining appropriate policies and practices” and that we would accept “any reasonable approaches” states use to implement the transaction restrictions. For example, one commenter commented that we should not use our authority within this law to restrict state flexibility without a compelling reason, and that we should make reasonable choices that help promote employment and economic self-sufficiency (to the extent that the ambiguity in the statutory language allows). Additionally, a few commenters argued that as technology evolves rapidly, regulations should allow room for approaches that have not been developed at this time. On the other hand, a few commenters stated that we should “provide more of a standard so that there is more consistency in the calculation and then the implementation of the penalties.” One advised that an over-arching framework for implementing the restrictions in the law should be shaped by the goals of TANF, and that we should avoid overly-broad interpretations of the law that would undercut rather than further the Congressional intent to bolster public confidence in TANF's program integrity. Another suggested that the proposed rule needs to be more stringent.

    Response: We believe that, given the various types of systems states use to deliver TANF assistance, it is important to provide states flexibility to implement policy and practices that comply with these statutory and regulatory requirements. Our intention is to inform states of their options while ensuring they fulfill the provisions of the law. These options include: Requiring that third-party processor agreements include language related to the TANF prohibitions; requiring retailers to meet certain eligibility criteria in order to accept EBT cards or EPCs; reviewing and revising state licensing requirements for casinos, liquor stores, and adult entertainment venues to include conditions for license issuance related to restricting TANF benefit use; amending or creating new educational materials for cardholders and retailers; pre-screening retailers prior to authorizing them to accept EBT cards; engaging EBT vendors to determine possible procedures for identifying electronic benefit transfer transactions with TANF assistance at prohibited locations; requiring cardholders to agree in writing not to use TANF assistance at prohibited locations as a condition of receipt; engaging relevant business owners, for example through the appropriate state licensing agencies, and instructing retailers to refuse EBT cards or EPCs at their locations; requiring that relevant business owners or ATM owners post a notification that EBT cards or EPCs may not be used for purchases or cash withdrawal at prohibited locations. While states may impose sanctions, assign a protective payee, or impose a conciliation process for individuals found in violation, the statute does not require that states do so.

    In their initial reports, a few states described procedures that involve informing recipients and/or owners of the restricted businesses of the rules (e.g., via letter, flyer, or brochure; posting information on TANF and regulatory agencies' Web sites; displaying posters that detail the EBT restrictions in relevant establishments or local welfare offices), without taking additional actions that aim to ensure the relevant parties are complying with the policy. Absent final rules, ACF accepted such approaches as complying with the statutory requirements. However, with the publication of this final rule, we clarify that notification approaches are only sufficient in situations where further action is not feasible, such as in the case of TANF funds accessed from private bank accounts or TANF funds used in other states. Where possible, we expect states to implement procedures that enforce policies, and take corrective actions when instances of non-compliance or ineffectiveness are identified.

    Comment: One state pointed out that § 264.60 leaves out the key words “as necessary” following the phrase, “states are required to implement policies and practices.” Another state suggested replacing the word “use” with “access” in the proposed § 264.60 heading and elsewhere in the narrative to carry a clearer meaning.

    Response: We agree that the words “as necessary” should be added to the regulation in order to be consistent with the statute. Regarding the proposed language change from “use” to “access,” the statute itself refers to “use in electronic benefit transfer transaction.” We think the best approach is to track the statutory language as much as possible. Therefore, we maintain the current text.

    Comment: A few commenters expressed concern with approaches that focus on penalizing individuals rather than preventing transactions in the first place, as they do not further public support for the program and place too much of the burden for compliance on recipients. Yet another commenter stated that we should not encourage states to have vendors post public signs because they unfairly stigmatize and shame public benefits recipients. These commenters suggested that we indicate to states that if a non-systemic approach to preventing TANF EBT use at prohibited locations (e.g., centralized electronic blocking of prohibited transactions) is not reasonably effective, then compliance actions will require a more systemic approach to prevention. They also argued that we should stress that prevention rather than severity of penalties furthers the goal of the legislation.

    Response: We appreciate this suggestion, and while we encourage comprehensive policies and practices that involve more than one method of preventing TANF EBT use at prohibited locations (e.g., notices to merchants coupled with monitoring of transaction records), we do not prescribe one specific approach or set of approaches. The intent of the law is to prevent transactions in the designated locations, and there is good reason to believe that prevention cannot be achieved by placing the entire burden on the individual. At the same time, given the broad discretion that states have under TANF, we do not believe that there is a basis for us to require any specific approach so long as a state's approach is reasonable.

    We do encourage states to periodically evaluate the effectiveness of their policies and practices, and adapt or revise them as necessary. In doing so, they maintain the flexibility afforded by the regulation to implement either systemic or non-systemic approaches. We have suggested a number of options for how states may structure policies. We require states to describe how they plan to correct for non-compliance and ineffectiveness in the annual report.

    Comment: Two commenters stated that bank identification number (BIN) blocking at the point of sale cannot be done systematically as of now, though they do point out it is possible at ATMs. One of these commenters also suggested that we require that a TANF agency or its EBT vendor notify relevant merchants that they must contact the third party processor (that routes electronic transactions through the commercial debit and credit networks) with which they have a processing agreement and request that the third party processor disable or remove EBT access from their (the relevant merchant's) account. Further, the commenter suggested that we require merchants to have their processors send the merchant category code in the authorization message when an EBT card is swiped at the point of sale, and the TANF agency or its EBT vendor could then make a decision to approve or decline the transaction based on the merchant category code. Yet another commenter suggested that it would be easiest for states to require that all existing ATMs be reprogrammed and merchants would then have to apply to determine if they could be authorized to use EBT funds.

    Response: We apologize for our error in stating that a state may systematically prevent transactions via BIN blocking at the point of sale. Additionally, we appreciate these commenters' suggestions for ways states may comply with the statute, but note that, as we explained above, we do not prescribe any one approach for states to implement. Again, states may develop approaches that are cost effective and fit within the existing structure of state operations, yet at the same time meet the requirements of the law.

    Comment: One state recommended that we identify and address the differences between EBT and EPC when discussing the options for complying with the requirements, in particular with respect to the four components of reports. Specifically, HHS should acknowledge that EPC and EBT cards are subject to different federal laws and regulations, as well as industry and network standards depending on the type of card, then discuss options and any unique limitations or issues for policies and procedures related to each type of card within each component.

    Response: We understand the unique challenges associated with EPCs, and we have been mindful of limitations as we have reviewed state reports. For example, we are aware that banking and privacy laws prevent states from receiving transaction information that would allow them to track the places where individuals redeem their benefits (with very limited exceptions). The Privacy Act of 1974 (at 5 U.S.C. 552a) protects individuals' information maintained by federal agencies and the federal Right to Financial Privacy Act (at 12 U.S.C. 3401) protects personal and financial information of bank customers from disclosure to governmental agencies by banks and their agents. We are mindful of the limitations and will take them into consideration as we review state reports. States that use EPCs described in their initial reports policies and practices including: Blocking certain merchant category classification codes so as to prohibit the usage of the cards in businesses meeting the definition within the law; conducting outreach to businesses to educate impacted vendors and retailors on the prohibition; ensuring recipients are aware of the prohibition by informing applicants and re-applicants through notification; and assigning a protective payee to cases where it comes to the attention of the county eligibility worker or the TANF program administrator that an adult member of the household has demonstrated inappropriate use of funds. Regarding monitoring procedures, in its initial EBT transaction report submitted by the February 22, 2014 deadline, one state described a process for sending an electronic file to IRS approximately once a month for all new and current recipients in order to identify any gambling winnings claimed on tax returns; this information is used as a lead to determine possible fraud. Another state's EBT transaction report explained that the state TANF program receives a monthly Program Market Segment Report from the financial institution that issues the state's EPCs. The Program Market Segment Report displays merchant category codes, the cardholder count that completed a transaction at each type of business, the number of transactions completed, the percent of the total transactions by merchant category code, and the transaction amount by merchant category code. This information allows the state to monitor card and transaction activity.

    Comment: One state commented that states that have commingled funds in EBT accounts, such as child support funds, should not be required to restrict access to non-TANF programs. One state suggested that regulations should allow flexibility in this area and allow states to define policies and practices that restrict TANF but allow access for the other cash program benefits comingled with the TANF funds in the EBT accounts.

    Response: We agree that states have flexibility to define policies and practices that restrict TANF but allow access to the other cash program benefits that may be on a benefit card. We emphasize that the statutory restriction here solely applies to TANF assistance, not to child support funds or to other family benefits or resources other than TANF assistance.

    Comment: A few commenters expressed concern that certain terms in the NPRM indicated we would not support state flexibility, namely “consistently applied,” “required to block,” and “adequately implement.” The commenters suggested that using such terms may lead states to feel compelled to adopt specific suggestions. A few commenters requested that we not include a specific list of four required reporting components (which are identifying locations; methods to prevent use of TANF assistance via EBT transactions in restricted locations; monitoring; and enforcement of compliance) in regulations, as doing so limits flexibility.

    Response: It was not our intention to limit state flexibility or be overly prescriptive, but rather to ensure that we receive complete reports describing the procedures states have chosen to implement to comply with the statutory requirements. We maintain that for states to demonstrate that they are implementing the required policies and practices, their implementation strategies must address all four components identified. At the same time, states have flexibility within each category with respect to the specific policies and practices they choose to implement. For further information on this topic, see the discussion related to § 265.9 below, which explains our actions in relation to this issue. As stated there, we are revising the text of the four components, but not eliminating the requirement.

    Comment: We received a few comments responding to suggestions presented in the NPRM for how states can identify locations specified in the law. In particular, one state seems to believe that we proposed requiring states to maintain a list of the establishments subject to the restrictions, and for state TANF agencies to provide a separate and additional notification to impacted merchants. The state recommended that we allow states to comply with the requirements of Public Law 112-96 by requiring the appropriate state licensing agency to notify the entities that license businesses that are subject to the prohibitions, through broader public notice of the requirements for such locations to restrict access, by conducting periodic targeted reviews of EBT transactions, by following up on suspect locations, and by establishing appropriate penalties for the venues violating the restrictions. Additionally, one commenter warned against relying on internet searches, and suggested that states attempt to work through national associations of these businesses and their state affiliates.

    Response: We did not intend to imply that we are requiring a particular method for identifying locations subject to the requirements. Similarly, we do not require states to maintain a list of affected businesses. We want states to describe their processes for how they identify locations subject to these requirements in their reports. However, because the method or combination of methods states use for identifying locations depends on the policies and practices they implement, states should have flexibility in deciding how best to do so. For example, if a state's policy involves monitoring transaction reports, “identifying locations” could mean developing criteria for being able to recognize on the transaction reports that a transaction occurred at one of the three types of locations (e.g., what words or data elements do reviewers look for?). A state that blocks access at certain locations should describe its procedures for determining which locations should be blocked. Other ways states may identify locations subject to the TANF statutory requirements include working with entities that license businesses or national associations of these businesses and their state affiliates, using merchant category codes, or having states apply for an authorization to accept a state's benefit card based on the percentage of their gross revenue that is derived from the sale of alcoholic beverages, legalized games of chance, sexually oriented materials, coin-operated amusement machines, etc.

    Comment: We received one comment in relation to preventing access to TANF cash assistance by state programs at any type of business specified in the law that is located on tribal land. This commenter believed we inappropriately overstepped tribal authority because we “extended” the requirements to tribal programs.

    Response: We reiterate that we are not extending the requirements to tribal TANF programs. We agree that Congress did not apply these requirements to TANF assistance administered by a tribal TANF program. However, states do have a responsibility to develop appropriate policies for preventing TANF cash assistance administered by state programs from being used at any of the three types of businesses, including those located on tribal land, to the extent practicable. As we stated in the NPRM, we encourage states to work with tribes to try to prevent state TANF assistance from being used at the prohibited locations on sovereign tribal land. We would consider it sufficient for states to provide notice to recipients that the prohibition of use extends to tribal lands.

    Comment: We received two comments related to whether a state should be responsible for restricting use of its TANF assistance in another state. Both maintained that it would be too challenging and costly for states to attempt to block transactions in businesses located in other states and recommended that we not require states to restrict transactions at locations outside their borders. At the same time, Illinois pointed out that this would not prevent states from reviewing and following up on cardholders' out-of-state spending of TANF benefits in the three restricted types of businesses.

    Response: We did not include a discussion of this issue in the preamble of the NPRM, and think it is important to provide clarity in the final rule. States are responsible for restricting transactions using state-provided assistance at prohibited locations whether or not the transaction occurs within the state. We recognize the infeasibility of restricting transactions in other states; and, therefore, the agency would consider providing a notice to recipients to be sufficient implementation of a policy or practice with respect to out-of-state transactions.

    Comment: We received a few comments regarding access and fees, raising concerns about protections for those living in isolated areas and noted that the regulations do not provide any exceptions or guidelines about how states may ensure access to cash assistance. Further, they highlighted that the statute's requirement to ensure access to cash assistance and minimal fees may benefit recipients, as the yearly amount of surcharges associated with cash assistance withdrawals is extraordinarily high. To minimize fees, they suggested that states allow a certain number of free withdrawals per month or eliminate withdrawal surcharges. One commenter suggested that the regulations should require states to allow TANF recipients to choose between benefits via direct deposit or an EBT card. It also suggested that the regulations should specify the ways in which states may implement guaranteed, surcharge free transactions (e.g., free ATM balance inquiries and surcharge subsidies), and HHS should provide technical assistance to states about promising practices for guaranteeing access.

    Response: We believe it is critical that states take steps to ensure access to cash assistance and minimize, or eliminate, fees for families who are working toward self-sufficiency. We strongly encourage states to develop strategies to ensure adequate access to benefits, such as guaranteeing a minimum number of free cash withdrawals per month or providing new options for cash assistance withdrawal in isolated areas. We will continue to work with states on an individual basis regarding these strategies.

    Finally, we want to reiterate that while one of the new state plan requirements at Sec. 4004(c) of Public Law 112-96 conveys a clear emphasis that states ensure adequate access to cash assistance for recipients, this language does not provide states the option to avoid imposing a restriction at an ATM or POS terminal located in any of the three types of specified businesses in order to ensure adequate access. Rather, it conveys a responsibility for states to take corrective actions to increase locations where TANF recipients may access their cash assistance if they find that there are an insufficient number of access points in a geographic area.

    Section 264.61 What happens if a state fails to report or demonstrate it has implemented and maintained the policies and practices required in § 264.60 of this subpart?

    We are adding a § 264.61 to address the penalty associated with the new requirements. Under paragraph (a), HHS will impose a penalty of not more than five percent of a state's adjusted SFAG for failure to submit annually a report demonstrating the state's implementation of policies and practices to prevent EBT use in the locations specified in Public Law 112-96. Under paragraph (b), HHS will impose a penalty of not more than five percent of a state's adjusted SFAG each fiscal year succeeding FY 2014 in which the state does not demonstrate it has implemented and maintained the required policies and practices. Note that we have revised the phrasing we used in the NPRM for the title of this section in order to clarify that the penalty will be imposed for a state's failure to demonstrate in the report its implementation and maintenance of policies and practices, rather than a failure to implement and maintain the policies and practices.

    In order to meet this requirement, states' reports must fully explain the policies and practices that are being implemented and maintained. Note that if a state submits a late report and once submitted, also fails to demonstrate its implementation of policies and practices, the combined penalty will not exceed five percent of its adjusted SFAG. Any deficiencies that arise with respect to a state's reporting of its EBT policies and practices in the Annual Report (i.e., for failure to submit a complete or timely report) will not trigger a separate penalty under 45 CFR 262.1(a)(3) or 265.8.

    All penalties will be imposed in accordance with 45 CFR part 262, which provides states with procedures for appealing a penalty, and submitting a reasonable cause justification or corrective compliance plan.

    Furthermore, Sec. 409(a)(16)(C) of the Act, as amended by Sec. 4004(b) of Public Law 112-96 provides HHS the discretion to reduce the penalty amount based on the degree of noncompliance of the state. Sec. 409(a)(16)(C) of the Act, as amended by Sec. 4004(b) of Public Law 112-96, also specifies that “Fraudulent activity by any individual in an attempt to circumvent the policies and practices required by Sec. 408(a)(12) shall not trigger a state penalty under subparagraph (A);” as such, HHS will not base any penalty on such information. We have added paragraphs (c) and (d) in this section of the regulation, incorporating these two provisions of the statute.

    Please see discussion after 45 CFR 262.1 for comments and responses related to these penalty provisions.

    Part 265—Data Collection and Reporting Requirements Section 265.9—What information must the state file annually?

    In response to comments expressing concern over the burden of having a separate annual report due on February 22 of each fiscal year, we are amending § 265.9, by adding paragraph (b)(10) to state that in accordance with §§ 264.60 and 264.61, a report of policies and practices to prevent assistance (defined at § 260.31(a)) provided with federal TANF or state TANF MOE funds from being used in any electronic benefit transfer transaction in any liquor store; any casino, gambling casino, or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment. In an effort to receive reports that demonstrate whether states have implemented and maintained the required policies and practices, we are revising the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b). In doing so, we will require states to complete four sections, specifying: (1) Procedures for preventing the use of TANF assistance via electronic benefit transfer transactions in any liquor store; any casino, gambling casino, or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment; (2) how the state identifies the locations specified in the statute; (3) procedures for ongoing monitoring to ensure policies are being carried out as intended; and (4) how the state plans to respond to findings of non-compliance or program ineffectiveness. We believe that for states to demonstrate that they are implementing the required policies and practices, their implementation strategies must address all four components identified. At the same time, states have flexibility within each category with respect to the specific policies and practices they choose to implement.

    Comment: We received several comments responding to the expectation that states establish and report annually on policies and practices in four specific areas identified in the NPRM, namely: (1) Identifying locations; (2) preventing the use of TANF assistance via EBT transactions; (3) monitoring; and (4) enforcement of compliance. While two commenters agreed with our proposed framework and believed it would support the integrity of the program, other commenters argued that following this requirement would be labor intensive, cost prohibitive, and contrary to the philosophy of state flexibility in a block grant program. Some argued that states should have the flexibility to develop policies and practices best suited to them, which might not match the four stated areas. One state argued that requiring that reports address these four areas exceeded statutory authority and suggested that the four specific areas serve as suggestions for state policy rather than requirements. This commenter further suggested that we could require states to report on all four specified components, but allow states to determine whether to establish policies in these areas or not. If a state chose not to, it would assert that in the report. One commenter characterized these four specific components as requirements beyond those in the statute, and that they should not be made mandatory.

    Response: We disagree with the suggestion that requiring this reporting exceeds statutory authority, as the statute provides us the authority to reduce a state's block grant if the “Secretary determines, based on the information provided in State reports, that any State has not implemented and maintained such policies and practices.” We are requiring the four areas in the reports, but are changing the descriptions of the third and fourth to be clearer about what these terms mean. Instead of “monitoring,” the third component should read “ongoing monitoring to ensure policies are being carried out as intended;” and instead of “enforcement of compliance,” the fourth component should read “plans to respond to findings of non-compliance and/or program ineffectiveness.” This way, we do not imply that specific practices, such as monitoring of transaction reports, are required. At the same time, reports must describe how states will review and evaluate the policies and practices implemented, and correct any particular aspects that are not leading to the intended results.

    Comment: Two commenters argued that states should be required to publish their annual reports online, in order to make this information publicly available. Commenters also argued that we should encourage information sharing among states by establishing venues for the exchange of information about program costs and successes.

    Response: We are not requiring states to publish their annual TANF and MOE reports online, but encourage states to do so. States also have many existing means to share information with each other, and we support states continuing to do so. ACF's Office of Family Assistance will explore the feasibility of posting these reports on their Web site.

    VI. Paperwork Reduction Act

    This rule establishes new information collection requirements in §§ 262.3(g) and 265.9(b)(10) of the TANF regulations. This collection is subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). We did not receive any public comments on the specific burden hour estimate identified in the proposed rule. The information collection requirements, as described below, are identical to those contained in the proposed rule (OMB control number 0970-0437). However, now that the initial reporting due February 22, 2014, has passed, we have reduced the burden hour estimate by half. We also note that we will incorporate this reporting requirement into the Annual Report on TANF and MOE Programs under 45 CFR 265.9(b), and will obtain OMB approval for a standard form before the next information collection is due. The annual report is due at the same time as the fourth quarter TANF data report, or within 45 days following the end of the fourth quarter.

    As required by the Paperwork Reduction Act of 1995, codified at 44 U.S.C. 3507, ACF will submit a copy of these sections to the Office of Management and Budget (OMB) for review and they will not be effective until they have been approved and assigned a clearance number.

    Requirement Number of
  • respondents
  • Yearly
  • submittals
  • Average
  • burden per
  • respondent
  • (hours)
  • Total
  • burden hours
  • Annual reporting on policies and practices to prevent TANF assistance from being used in electronic benefit transfer transactions in liquor stores; casinos, gambling casinos, or gaming establishments; or any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment 54 1 20 1,080

    We estimate the costs of implementing these requirements will be approximately $54,000 annually. We calculated this estimate by multiplying 1,080 hours by $50 (average cost per hour).

    VII. Regulatory Flexibility Act

    The Secretary certifies under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this final regulation will not result in a significant impact on a substantial number of small entities. We note that any impact on businesses emanates from statutory mandate and the policies that states adopt in implementing the statutory requirement.

    In order to address potential concerns of the types of establishments specified in the statute, as well as state EBT vendors, HHS has drafted the regulation in a manner that minimizes the impact on businesses, including small businesses, by providing states flexibility when implementing policies and practices that comply with the new requirements. In particular, states have the flexibility to implement approaches that do not place significant burden or impose large costs on their EBT vendors, small businesses, or any particular party. Therefore, any costs resulting from policies under which states require action by small entities, including small businesses, are the result of choices states make when implementing the statutory requirements.

    The direct primary impact of this final regulation is on state governments. State governments are not considered small entities under the Act.

    VIII. Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule meets the criteria for a significant regulatory action under E.O. 12866 and has been reviewed by OMB. For the reasons set forth below, ACF does not believe the impact of this regulatory action would be economically significant and that the annual cost would fall below the $100 million threshold.

    Costs. We received a few comments regarding the costs associated with the implementation of the regulation. Individual commentators raised general concerns about the regulation's cost/benefit ratio and the impact on TANF spending. A few commenters expressed concern that states will reallocate TANF money from direct services to resources for implementing this regulation.

    Commenters also noted that the regulation's benefits do not outweigh its costs, as implementation costs are so large and the percentage of TANF cash assistance recipients using EBT cards on prohibited transactions is so small. One of these commenters noted that some states have considered ending EBT programs and reinstating paper checks to exempt themselves from the regulatory requirements. They suggested increasing state flexibility in implementing the regulation by removing the four components that states must include in their implementation report listed in the proposed provision at 45 CFR 262.3(g).

    We understand that this regulation will impose new costs on states. In response to this issue, we have provided flexibility in meeting the regulatory requirements so that states may develop cost-effective implementation strategies that fit within the existing structure of state operations. In general, the costs associated with implementation, and the parties that bear these costs, largely depend on the policies and practices a state chooses to in enact order to comply with the statutory requirements.

    Nevertheless, regardless of the approach a state may take when implementing policies in order to comply with the statute and regulations, there will be, at a minimum, administrative costs for the state agency responsible for administering the TANF benefits. We recognize that states will spend funds on the following types of costs to implement the changes in order to complete the annual progress report to ACF:

    Costs to identify the prohibited locations;

    Costs to modify existing tracking of recipient use of electronic benefits and/or electronic banking;

    Costs to monitor recipient use of electronic benefit transfers;

    Costs to investigate and follow up on violations of electronic benefit transfers;

    Cost to process and respond to appeals.

    With regard to the reporting requirement, based on our estimate described under the Paperwork Reduction Act section of this preamble, the total costs for all states to comply with this requirement would fall well below the $100 million threshold. We will not remove the four components of the report, as commenters recommended. We do agree that the language in the components should be clarified (see discussion of regulation at § 265.9, above). It was not our intention to limit state flexibility or be overly prescriptive. The report components we have identified reflect general elements of all policies and practices that reflect full compliance with the statute, not specific policies and practices. As demonstrated by the initial reports states submitted in response to the statutory requirement, a majority of states have implemented sufficient policies and practices that take into account each of these components. Furthermore, by identifying these components in a standard form, we are ensuring that states take a comprehensive approach to composing their policies and practices, and that ACF receives complete reports describing the procedures states have chosen to implement.

    Additionally, the statutory requirements and regulation provide potential benefits that coincide with the goal of financial responsibility. For example, the policies and practices that states implement may result in reductions in inappropriate expenditures of government funds, and emphasize to recipients that they should ensure assistance is spent only on basic needs. There may also be opportunities to educate recipients on financial management and on ways to minimize access fees.

    Need for the Regulation: These regulations incorporate statutory changes to the TANF program enacted in the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96). This regulation is limited to the penalty provisions of Section 4004 of Public Law 112-96. Because states have a range of systems for disbursement of assistance, and a number of questions have arisen regarding the applicability and requirements of the statutory language, HHS has published this regulation in order to clarify for states the information they should submit in order to avoid a penalty.

    IX. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any federal mandate that may result in the expenditure by state, tribal, and local governments, in the aggregate, or by the private sector, of $100 million or more in any one year. HHS has determined that this rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.

    For more detail regarding estimated costs, see the section containing the Regulatory Impact Analysis.

    X. Congressional Review

    This regulation is not a major rule as defined in the Congressional Review Act or CRA (5 U.S.C. Chapter 8). The CRA defines a major rule as one that has resulted or is likely to result in: (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. HHS has determined that this final rule does not meet any of these criteria. For more detail regarding estimated costs, see the section containing the Regulatory Impact Analysis.

    XI. Executive Order 13132

    Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule does not have federalism implications as defined in the Executive Order. Consistent with Executive Order 13132, HHS specifically requested comments from state and local government officials in the proposed rule regarding federalism implications; we did not receive any comments in response to this specific solicitation.

    XII. Treasury and General Government Appropriations Act of 1999

    Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires federal agencies to determine whether a regulation may negatively impact family well-being. The Department has concluded that this final rule does not have a negative impact on family well-being, but rather that it will have positive benefits. The statutory requirements and regulations promote the goal of financial responsibility, helping to ensure that families are using their TANF assistance for basic needs. States also may incorporate within their policies and practices opportunities to educate recipients on budgeting, and their state plans must include an explanation of how the state will ensure that recipients have access to using or withdrawing assistance with minimal fees.

    List of Subjects in 45 CFR Parts 262, 264, and 265

    Administrative practice and procedures, Day care, Employment, Grant programs-social programs, Loan programs-social programs, Manpower training programs, Penalties, Public assistance programs, Reporting and recordkeeping requirements, Vocational education.

    Dated: January 11, 2016. Mark H. Greenberg, Acting Assistant Secretary for Children, and Families. Approved: January 11, 2016. Sylvia M. Burwell, Secretary.

    For the reasons set forth in the preamble, parts 262, 264, and 265 of 45 CFR are amended as follows:

    PART 262—ACCOUNTABILITY PROVISIONS-GENERAL 1. The authority citation for 45 CFR part 262 is revised to read as follows: Authority:

    31 U.S.C. 7501 et seq.; 42 U.S.C. 606, 609, and 610; Sec. 7102, Pub. L. 109-171, 120 Stat. 135; Sec. 4004, Pub. L. 112-96, 126 Stat. 197.

    2. Amend § 262.1 by adding paragraph (a)(16) and revising paragraph (c)(2) to read as follows:
    § 262.1 What penalties apply to states?

    (a) * * *

    (16)(i) A penalty of not more than five percent of the adjusted SFAG (in accordance with § 264.61(a) of this chapter), for failure to report annually on the state's implementation and maintenance of policies and practices required in § 264.60 of this chapter.

    (ii) A penalty of not more than five percent of the adjusted SFAG (in accordance with § 264.61(b) of this chapter), for FY 2014 and each succeeding fiscal year in which the state does not demonstrate that it has implemented and maintained policies and practices required in § 264.60 of this chapter.

    (iii) The penalty under paragraphs (a)(16)(i) and (ii) of this section may be reduced based on the degree of noncompliance of the state.

    (iv) Fraudulent activity by any individual receiving TANF assistance in an attempt to circumvent the policies and practices required by § 264.60 of this chapter shall not trigger a state penalty under paragraphs (a)(16)(i) and (ii) of this section.

    (c) * * *

    (2) We will take the penalties specified in paragraphs (a)(3) through (6) and (8) through (16) of this section by reducing the SFAG payable for the fiscal year that immediately follows our final decision.

    3. Amend § 262.2 by adding paragraph (e) to read as follows:
    § 262.2 When do the TANF penalty provisions apply?

    (e) In accordance with § 264.61(a) and (b) of this chapter, the penalty specified in § 262.1(a)(16) will be imposed for FY 2014 and each succeeding fiscal year.

    4. Amend § 262.3 by adding paragraph (g) as follows:
    § 262.3 How will we determine if a State is subject to a penalty?

    (g) To determine if a State is subject to a penalty under § 262.1(a)(16), we will use the information provided in annual state reports at § 265.9(b)(10) of this chapter, in accordance with Section 409(a)(16) of the Social Security Act.

    PART 264—OTHER ACCOUNTABILITY PROVISIONS 5. The authority citation for 45 CFR part 264 is revised to read as follows: Authority:

    31 U.S.C. 7501 et seq.; 42 U.S.C. 608, 609, 654, 1302, 1308, and 1337.

    6. Amend § 264.0(b) by adding definitions for “Casino, gambling casino, or gaming establishment”; “Electronic benefit transfer transaction”; and “Liquor store” in alphabetical order to read as follows:
    § 264.0 What definitions apply to this part?

    (b) * * *

    Casino, gambling casino, or gaming establishment means an establishment with a primary purpose of accommodating the wagering of money. It does not include:

    (i) A grocery store which sells groceries including staple foods and which also offers, or is located within the same building or complex as, casino, gambling, or gaming activities; or

    (ii) Any other establishment that offers casino, gambling, or gaming activities incidental to the principal purpose of the business.

    Electronic benefit transfer transaction means the use of a credit or debit card service, automated teller machine, point-of-sale terminal, or access to an online system for the withdrawal of funds or the processing of a payment for merchandise or a service.

    Liquor store means any retail establishment which sells exclusively or primarily intoxicating liquor. Such term does not include a grocery store which sells both intoxicating liquor and groceries including staple foods (within the meaning of Section 3(r) of the Food and Nutrition Act of 2008 (7 U.S.C. 2012(r))).

    7. Add §§ 264.60 and 264.61 to subpart A to read as follows:
    § 264.60 What policies and practices must a state implement to prevent assistance use in electronic benefit transfer transactions in locations prohibited by the Social Security Act?

    Pursuant to Section 408(a)(12) of the Act, states are required to implement policies and practices, as necessary, to prevent assistance (defined at § 260.31(a) of this chapter) provided with federal TANF or state TANF MOE funds from being used in any electronic benefit transfer transaction in any: liquor store; casino, gambling casino or gaming establishment; or retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment.

    § 264.61 What happens if a state fails to report or demonstrate it has implemented and maintained the policies and practices required in § 264.60?

    (a) Pursuant to Section 409(a)(16) of the Act and in accordance with 45 CFR part 262, a penalty of not more than five percent of the adjusted SFAG will be imposed for failure to report by February 22, 2014 and each succeeding fiscal year on the state's implementation of policies and practices required in § 264.60. The penalty will be imposed in the succeeding fiscal year, subject to § 262.4(g) of this chapter.

    (b) Pursuant to Section 409(a)(16) of the Act and in accordance with 45 CFR part 262, a penalty of not more than five percent of the adjusted SFAG will be imposed for FY 2014 and each succeeding fiscal year in which the state fails to demonstrate the state's implementation of policies and practices required in § 264.60. The penalty will be imposed in the succeeding fiscal year subject to § 262.4(g) of this chapter.

    (c) A penalty applied under paragraphs (a) and (b) of this section may be reduced based on the degree of noncompliance of the state.

    (d) Fraudulent activity by any individual in an attempt to circumvent the policies and practices required by § 264.60 shall not trigger a state penalty under paragraphs (a) and (b) of this section.

    PART 265—DATA COLLECTION AND REPORTING REQUIREMENTS 8. The authority citation for 45 CFR part 265 continues to read as follows: Authority:

    42 U.S.C. 603, 605, 607, 609, 611, and 613; Pub. L. 109-171.

    9. Amend § 265.9 by adding paragraphs (b)(10) and (11) to read as follows
    § 265.9 What information must a State file annually?

    (b) * * *

    (10) A comprehensive description of the state's policies and practices to prevent assistance (defined at § 260.31(a) of this chapter) provided with federal TANF or state TANF MOE funds from being used in any electronic benefit transfer transaction in any: liquor store; casino, gambling casino or gaming establishment; or retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment. Reports must address:

    (i) Procedures for preventing the use of TANF assistance via electronic benefit transfer transactions in any liquor store; any casino, gambling casino, or gaming establishment; and any retail establishment which provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment;

    (ii) How the state identifies the locations specified in the statute;

    (iii) Procedures for ongoing monitoring to ensure policies are being carried out as intended; and

    (iv) How the state responds to findings of non-compliance or program ineffectiveness.

    (11) The state's TANF Plan must describe how the state will:

    (i) Implement policies and procedures as necessary to prevent access to assistance provided under the State program funded under this part through any electronic fund transaction in an automated teller machine or point-of-sale device located in a place described in section 408(a)(12) of the Act, including a plan to ensure that recipients of the assistance have adequate access to their cash assistance; and

    (ii) Ensure that recipients of assistance provided under the State program funded under this part have access to using or withdrawing assistance with minimal fees or charges, including an opportunity to access assistance with no fee or charges, and are provided information on applicable fees and surcharges that apply to electronic fund transactions involving the assistance, and that such information is made publicly available.

    [FR Doc. 2016-00608 Filed 1-13-16; 8:45 am] BILLING CODE P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [PS Docket No. 13-229, FCC 15-103] Amendment of the Commission's Rules To Facilitate the Use of Vehicular Repeater Units AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    This document implements certain changes to the rules governing six remote control and telemetry channels in the VHF band. We will allow the licensing and operation of vehicular repeater systems (VRS) and other mobile repeaters on these channels. In addition, we revise and update the technical rules for these channels to allow greater use of VRS systems while providing protection for incumbent telemetry users who rely on these frequencies for control of critical infrastructure systems.

    DATES:

    Effective March 15, 2016, except for the addition of § 90.175(b)(4), containing new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995, which will become effective after such approval, on the effective date specified in a notice that the Commission publishes in the Federal Register announcing such approval and effective date.

    FOR FURTHER INFORMATION CONTACT:

    Roberto Mussenden, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-1428. For additional information concerning the information collection requirements contained in this document, send an email to [email protected] or contact Nicole Ongele, Office of Managing Director, Performance Evaluation and Records Management, 202-418-2991, or by email to [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order in PS Docket No. 13-229, FCC 15-103, released on August 10, 2015 and Clarification Order in PS Docket No. 13-229, FCC 15-165, released on December 11, 2015. These documents are available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of these documents are also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    In 2013, the Commission's Notice of Proposed Rulemaking (NPRM) sought comment on whether to make additional spectrum available to support mobile repeater capability. The Commission declined to seek comment on VRS operations on nine channels in the 170-172 MHz band, but proposed to allow mobile repeater use on six telemetry channels in the 173 MHz band. In addition, the Commission sought comment on whether other spectrum bands or frequencies could also be used for public safety mobile repeater operations; whether to allow Industrial/Business use of mobile repeater stations on these channels; whether to impose bandwidth restrictions on these frequencies; whether frequency coordination could protect telemetry users from interference; whether to allow wide-area mobile repeater operations on these frequencies; and whether to allow VRS units to exceed the 2 watt power limit that applies to these channels.

    In the Report and Order the Commission decides to allow all users of these channels—including telemetry licensees—to operate using 11.25 kHz bandwidth. In addition, we will make these six telemetry channels co-primary with adjacent channel land mobile operations and remove the restrictions on omni-directional antennas, fixed station power limits and antenna heights for telemetry stations. The Commission also decides that the only way to accommodate both telemetry and VRS on these frequencies is through frequency coordination to both ensure geographic separation as well as minimizing the risk of commingling voice and data operations. However, since no party provided the Commission with a specific coordination protocol, it directs the coordinator community to develop a consensus protocol for VRS coordination. The Commission also decides to only allow area-wide or state-wide authorizations on a secondary basis. The Commission imposes loading requirements for licensees seeking to license mobile repeaters on these frequencies. The Commission allows VRS to operate with 5 watts ERP but declines to increase the 2-watt power limit for telemetry and remote control use. As a result of our decision to allow the licensing of VRS units on these frequencies, we dismiss as moot several requests for waiver filed during the pendency of this rulemaking. On December 11, 2015, the Commission released a Clarification Order to ensure that the Commission's rules aligned with the text of the August Report and Order.

    Procedural Matters A. Final Regulatory Flexibility Analysis

    The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix B of the Report and Order.

    B. Paperwork Reduction Act of 1995 Analysis

    This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    The actions taken in the Report and Order in PS Docket No. 13-229 have been analyzed with respect to the Paperwork Reduction Act of 1995, Pub. L. 104-13, and found to impose new or modified recordkeeping requirements or burdens on the public.

    C. Congressional Review Act

    The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the NPRM of this proceeding. The Commission sought written public comment on the IRFA. The RFA requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    A. Need for, and Objectives of, the Proposed Rules

    In the Report and Order, we amend the Commission's rules we amend the Commission's Rules to allow the licensing and operation of vehicular repeater systems (VRS) and other mobile repeaters on six remote control and telemetry channels in the VHF band. The rule changes adopted are intended to promote flexible and efficient use of these channels. In order to achieve these objectives, we:

    • Allow the use of mobile repeaters on the following six telemetry channels: 173.2375, 173.2625, 173.2875, 173.3125, 173.3375, and 173.3625 MHz.

    • Allow the use of bandwidths up to 11.25 kHz on these channels.

    • Require frequency coordination for applications seeking primary status on these frequencies.

    • Limit applicants to a license a maximum of three channels on a primary basis

    B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

    C. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply

    The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    Public Safety Radio Licensees. As a general matter, Public Safety Radio Licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. For the purpose of determining whether a Public Safety Radio Licensee is a small business as defined by the SBA, we use the broad census category, Wireless Telecommunications Carriers (except Satellite). This definition provides that a small entity is any such entity employing no more than 1,500 persons. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1000 employees or more. The Commission does not require Public Safety Radio Licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many Public Safety Radio licensees constitute small entities under this definition. Nonetheless, the Commission estimates that the majority of Public Safety Radio Licensees are small entities.

    Private Land Mobile Radio Licensees. The Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The SBA rules, however, contain a definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications employing no more than 1,500 persons. According to the Commission's records, there are a total of 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz, which is the range affected by this NPRM. Despite the lack of specific information, however, the Commission believes that a substantial number of PLMR licensees may be small entities.

    Frequency Coordinators. Neither the Commission nor the SBA has developed a small business size standard specifically applicable to spectrum frequency coordinators. There are nine frequency coordinators certified by the Commission to coordinate frequencies allocated for public safety use. The Commission has not developed a small business size standard specifically applicable to frequency coordinators. The SBA rules, however, contain a definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications employing no more than 1,500 persons. Under this category and size standard, we estimate that a majority of frequency coordinators can be considered small.

    D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

    This Report and Order adopts a rule that will entail reporting, recordkeeping, and/or third-party consultation. Specifically, the Report and Order requires applicants for mobile repeater authorizations receive frequency coordination prior to filing a license application with the Commission. While the preparation of an application does not require the hiring of professionals, frequency coordinators do charge a fee for their services. Therefore, licensees will incur a one-time burden each time an application is filed with the Commission. The estimated burden and cost levels are described in more detail in the supporting statement for OMB 3060-1198, ICR Ref. No. 201404-30.

    E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

    The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

    The Report and Order adopts changes to the rules covering operation on six telemetry channels in the 173 MHz band. In formulating rule changes in the Report and Order, we strived to promote efficient use of spectrum.

    The Report and Order requires applicants obtain frequency coordination prior to filing a license application with the Commission. Given the Commission's previous reliance on frequency coordination as a mechanism to minimize the occurrence of harmful interference, we did not consider other alternatives to frequency coordination. In addition, we note that there are no methods by which to reduce the burden of frequency coordination on smaller entities. The Report and Order concludes that the benefits of frequency coordination outweigh any potential economic burden associated with frequency coordination.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    None.

    G. Report to Congress

    The Commission will send a copy of the Report and Order, including the FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    Ordering Clauses

    Accordingly, it is ordered that, pursuant to sections 1, 4(i), 303, 316, 332 and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 316, 332 and 337, the Report and Order is hereby adopted.

    It is further ordered that the amendments of the Commission's rules as set forth in Appendix B of the Report and Order are adopted, effective February 16, 2016, except for those rules and requirements in Section 90.175 containing new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995, which will become effective after such approval, on the effective date specified in a notice that the Commission publishes in the Federal Register announcing such approval and effective date.

    It is further ordered that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section 1.925(b)(3) of the Commission's rules, 47 CFR 1.925(b)(3), the Request for Waiver filed by the Washington Metropolitan Area Transit Authority on June 18, 2013, is dismissed as moot.

    It is further ordered that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section 1.925(b)(3) of the Commission's rules, 47 CFR 1.925(b)(3), the Modification Application and associated Request for Waiver filed by Trinity County, California on January 31, 2014 are dismissed.

    It is further ordered that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section 1.925(b)(3) of the Commission's rules, 47 CFR 1.925(b)(3), the Application and associated Request for Waiver filed by Williams County Sheriff's Department on December 26, 2013, are dismissed.

    It is further ordered that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section 1.925(b)(3) of the Commission's rules, 47 CFR 1.925(b)(3), the Application and associated Request for Waiver filed by Panhandle Regional Planning Commission on August 5, 2013, are dismissed.

    It is further ordered that the Commission shall send a copy of the Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Part 90

    Radio.

    Federal Communications Commission. Sheryl Todd, Deputy Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    2. Amend § 90.20: a. In the table in paragraph (c)(3) by revising the entries for 173.2375, 173.2625, 173, 2875, 173.3125, 173.3375, and 173.3625; and b. By adding paragraphs (d)(90) through (93).

    The revisions and additions read as follows:

    § 90.20 Public Safety Pool.

    (c) * * *

    (3) * * *

    Public Safety Pool Frequency Table Frequency or band Class of station(s) Limitations Coordinator *         *         *         *         *         *         * Megahertz *         *         *         *         *         *         * 173.2375 ......do 90, 91, 92, 93 PX. 173.2625 ......do 90, 91, 92, 93 PX. 173.2875 ......do 90, 91, 92, 93 PX. 173.3125 ......do 90, 91, 92, 93 PX. 173.3375 ......do 90, 91, 92, 93 PX. 173.3625 ......do 90, 91, 92, 93 PX. *         *         *         *         *         *         *

    (d) * * *

    (90) The maximum effective radiated power (ERP) may not exceed 2 watts for mobile stations, and 5 watts for mobile repeater stations and hand-carried transmitters that communicate directly with mobile repeater stations.

    (91) This frequency is available on a shared basis both for remote control and telemetry operations and for mobile repeater operations. The authorized bandwidth may not exceed 11.25 kHz.

    (92) This frequency is available on a shared basis with the Industrial/Business Pool for remote control and telemetry operations. Licensees seeking primary status for the use of this frequency for mobile repeater stations and hand-carried transmitters that communicate directly with mobile repeater stations must describe the area of normal day-to-day operations either in terms of operation in a specific county or in the terms of maximum distance from a geographic center (latitude and longitude) and shall be subject to the frequency coordination requirements of § 90.175.

    (93) Mobile repeaters operating on this frequency are subject to a channel loading requirement of 50 transmitter-receivers. Loading standards will be applied in terms of the number of units actually in use or to be placed in use within 8 months following authorization. A licensee will be required to show that an assigned frequency is at full capacity before it may be assigned a second or additional frequency. Channel capacity may be reached either by the requirements of a single licensee or by several users sharing a channel. Until a channel is loaded to capacity it will be available for assignment to other users in the same area.

    3. Amend § 90.35: a. In the table in paragraph (b)(3) by revising the entries for 173.2375, 173.2625, 173.2875, 173.3125, 173.3375, and 173.3625; and b. By adding paragraphs (c)(92) through (95).

    The revisions and additions read as follows:

    § 90.35 Industrial/Business Pool.

    (b) * * *

    (3) * * *

    Industrial Business Pool Frequency Table Frequency or band Class of station(s) Limitations Coordinator *         *         *         *         *         *         * Megahertz *         *         *         *         *         *         * 173.2375 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         * 173.2625 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         * 173.2875 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         * 173.3125 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         * 173.3375 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         * 173.3625 Fixed or mobile 92, 93, 94, 95 *         *         *         *         *         *         *

    (c) * * *

    (92) This frequency is available on a shared basis both for remote control and telemetry operations and for mobile repeater operations. The authorized bandwidth may not exceed 11.25 kHz.

    (93) This frequency is available on a shared basis with the Public Safety Pool for remote control and telemetry operations. In cases where § 90.35(c)(95) applies to this frequency, licensees seeking primary status for the use of this frequency for mobile repeater stations and hand-carried transmitters that communicate directly with mobile repeater stations must describe the area of normal day-to-day operations either in terms of operation in a specific county or in the terms of maximum distance from a geographic center (latitude and longitude) and shall be subject to the frequency coordination requirements of § 90.175.

    (94) Mobile repeaters operating on this frequency are subject to a channel loading requirement of 50 transmitter-receivers. Loading standards will be applied in terms of the number of units actually in use or to be placed in use within 8 months following authorization. A licensee will be required to show that an assigned frequency pair is at full capacity before it may be assigned a second or additional frequency. Channel capacity may be reached either by the requirements of a single licensee or by several users sharing a channel. Until a channel is loaded to capacity it will be available for assignment to other users in the same area.

    (95) The maximum effective radiated power (ERP) may not exceed 2 watts for mobile stations, and 5 watts for mobile repeater stations and hand-carried transmitters that communicate directly with mobile repeater stations.

    4. Section 90.175 is amended by adding paragraph (b)(4) to read as follows:
    § 90.175 Frequency coordinator requirements.

    (b) * * *

    (4) For any application for mobile repeater station operations on frequencies denoted by both § 90.20(d)(90) and (92), or by both § 90.35(c)(93) and (95) the frequency coordinator responsible for the application must determine and disclose to the applicant the call signs and the service areas of all active co-channel incumbent remote control and telemetry stations inside the applicant's proposed area of operation by adding a special condition to the application, except when the applicant has obtained written concurrence from an affected incumbent licensee, or when the applicant and the incumbent licensee are the same entity.

    [FR Doc. 2016-00220 Filed 1-14-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 RIN 0648-BE71 International Fisheries; Pacific Tuna Fisheries; 2016 Commercial Pacific Bluefin Tuna Catch Limit in the Eastern Pacific Ocean AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Announcement of 2016 Commercial Pacific bluefin tuna catch limit.

    SUMMARY:

    NMFS is announcing that the Pacific bluefin tuna catch limit applicable to U.S. commercial fishing vessels in the eastern Pacific Ocean (EPO) in 2016 is 425 metric tons (mt). This notice is necessary to inform fishery participants of the catch limit established in a final rule published on July 8, 2015.

    DATES:

    The catch limit is effective February 14, 2016, through 11:59 p.m. local time December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Celia Barroso, NMFS West Coast Region, 562-432-1850.

    SUPPLEMENTARY INFORMATION:

    The United States is a member of the Inter-American Tropical Tuna Commission (IATTC), which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention) signed in 1949. The Convention is an international agreement that, among other matters, serves as a framework for international conservation and management of highly migratory species of fish in the IATTC Convention Area.

    Fishing for tuna in the EPO is managed, in part, under the Tuna Conventions Act of 1950 (Act), as amended. Under the Act, NMFS must publish regulations to carry out recommendations of the IATTC. Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart C, and these regulations implement IATTC recommendations for the conservation and management of highly migratory fish resources in the EPO.

    In 2014, the IATTC adopted Resolution C-14-06 (Measures for the Conservation and Management of Pacific Bluefin Tuna in the Eastern Pacific Ocean, 2015-2016), which establishes catch and trip limits of Pacific bluefin tuna applicable to U.S. commercial fishing vessels in 2015 and 2016. NMFS implemented this resolution by notice-and-comment rulemaking under the Act (80 FR 38986, July 8, 2015, and codified at 50 CFR 300.25). According to the regulations at 50 CFR 300.25(h)(2)(i), if 175 mt or less are caught in 2015, as determined by NMFS, then the 2016 catch limit is 425 mt.

    NMFS, through landings data and other available information, has determined that U.S. commercial vessels in the EPO have caught less than 175 mt of PBF in 2015; preliminary estimates indicate total landings to be approximately 96 mt. In accordance with 50 CFR 300.25(h), this Federal Register notice announces that a 425 mt catch limit for Pacific bluefin tuna applies to U.S. commercial fishing vessels in the EPO through the end of the 2016 calendar year.

    As a reminder, in accordance with 50 CFR 300.25(h), a trip limit of 25 mt per vessel applies. When NMFS anticipates that the total catch for the U.S. fleet has reached 375 mt, NMFS will impose a 2 mt trip limit until 425 mt have been caught and the fishery is closed.

    Authority:

    16 U.S.C. 951 et seq.

    Dated: January 11, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-00738 Filed 1-14-16; 8:45 am] BILLING CODE 3510-22-P
    81 10 Friday, January 15, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket Numbers EERE-2013-BT-STD-0007 and EERE-2013-BT-STD-0021] RIN 1904-AC95 and 1904-AD11 Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air Furnaces AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    The Energy Policy and Conservation Act of 1975, as amended (EPCA), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including small, large, and very large air-cooled commercial package air conditioning and heating equipment and commercial warm air furnaces. EPCA also requires that the U.S. Department of Energy (DOE) periodically review and consider amending its standards for specified categories of industrial equipment, including commercial heating and air-conditioning equipment, in order to determine whether more-stringent, amended standards would be technologically feasible and economically justified, and save a significant additional amount of energy. In this document, DOE proposes to amend the energy conservation standards for both small, large, and very large air-cooled commercial package air conditioning and heating equipment and commercial warm air furnaces identical to those set forth in a direct final rule published elsewhere in this Federal Register. If DOE receives an adverse comment and determines that such comment may provide a reasonable basis for withdrawing the direct final rule, DOE will publish a document withdrawing the direct final rule and will proceed with this proposed rule.

    DATES:

    DOE will accept comments, data, and information regarding the proposed standards no later than May 4, 2016.

    Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the ADDRESSES section before February 16, 2016.

    ADDRESSES:

    Instructions: Any comments submitted must identify the proposed rule for Energy Conservation Standards for small, large, and very large air-cooled commercial package air conditioning and heating equipment (CUACs and CUHPs) and commercial warm air furnaces (CWAFs), and provide docket number EERE-2013-BT-STD-0007 and/or regulatory information number (RIN) 1904-AC95 for CUACs and CUHPs and EERE-2013-BT-STD-0021 and/or RIN 1904-AD11 for CWAFs. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: For CUACs and CUHPs: [email protected]. For CWAFs: [email protected]. Include the docket number and/or RIN for each equipment category in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

    3. Postal Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Room 6094, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    No telefacsimilies (faxes) will be accepted.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (“Public Participation”).

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to [email protected]

    EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at [email protected] before February 16, 2016. Please indicate in the “Subject” line of your email the title and Docket Number of this rulemaking notice.

    Docket: The dockets, which include Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the dockets are listed in the www.regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page for small, large, and very large air-cooled commercial package air conditioning and heating equipment can be found at: www.regulations.gov/#!docketDetail;D=EERE-2013-BT-STD-0007. A link to the docket Web page for commercial warm air furnaces can be found at: www.regulations.gov/#!docketDetail;D=EERE-2013-BT-STD-0021.The www.regulations.gov Web page will contain instructions on how to access all documents, including public comments, in the docket.

    For further information on how to review the dockets, please contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 286-1692. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction and Authority II. Proposed Standards A. Benefits and Burdens of TSLs Considered for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment B. Benefits and Burdens of TSLs Considered for Commercial Warm Air Furnaces III. Public Participation A. Submission of Comments B. Public Meeting IV. Procedural Issues and Regulatory Review V. Approval of the Office of the Secretary I. Introduction and Authority

    Title III, Part C 1 of the Energy Policy and Conservation Act of 1975 (“EPCA” or, in context, “the Act”), Public Law 94-163 (December 22, 1975), coupled with Title IV of the National Energy Conservation Policy Act, Public Law 95-619 (November 9, 1978), (collectively codified at 42 U.S.C. 6311-6317), established the Energy Conservation Program for Certain Industrial Equipment, which includes provisions covering the equipment addressed by this document.2 In general, this program addresses the energy efficiency of certain types of commercial and industrial equipment. Relevant provisions of the Act specifically include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

    1 Part C was codified as Part A-1 of the corresponding portion of the U.S. Code.

    2 All references to EPCA in this document refer to the statute as amended through the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2015).

    Section 342(a) of EPCA, which was added as part of the Energy Policy Act of 1992, Public Law 102-486 (October 24, 1992) (“EPAct 1992”), introduced new provisions regarding DOE's authority to regulate certain commercial and industrial equipment. Among the equipment EPAct 1992 required DOE to regulate were small and large air-cooled commercial package air conditioning and heating equipment, along with commercial warm air furnaces (“CWAFs”). See EPAct 1992, sec. 122 (codified as amended at 42 U.S.C. 6313(a)). As part of these changes, Congress specified energy conservation standards for this equipment to meet. See id. Later, the Energy Policy Act of 2005, Public Law 109-58 (August 8, 2005) (“EPACT 2005”), further amended DOE's authority to include very large air-cooled commercial package air conditioning and heating equipment and added standards for this equipment to meet as well. See EPACT 2005, sec. 136 (codified as amended at 42 U.S.C. 6313(a)). (Small, large, and very large, air-cooled commercial package air conditioning and heating equipment are also known generally as air-cooled commercial unitary air conditioners and heat pumps (“CUACs” and “CUHPs”). Congress established standards for CUACs/CUHPs that have a rated capacity between 65,000 British thermal units per hour (Btu/h) and 760,000 Btu/h. Similarly, for CWAFs, Congress established standards for equipment that (1) have a rated capacity (rated maximum input 3 ) greater than or equal to 225,000 Btu/h, (2) can be gas-fired or oil-fired, and (3) are designed to heat commercial and industrial buildings. See 42 U.S.C. 6313(a)(4).

    3 “Rated maximum input” means the maximum gas-burning capacity of a CWAF in Btus per hour, as specified by the manufacturer.

    Collectively, CUACs/CUHPs and CWAFs are designed to heat and cool commercial buildings and are often located on a building's rooftop.

    Section 342(a) of EPCA concerns energy conservation standards for small, large, and very large, CUACs and CUHPs. (42 U.S.C. 6313(a)) This category of equipment has a rated capacity between 65,000 Btu/h and 760,000 Btu/h. This equipment is designed to heat and cool commercial buildings and is often located on the building's rooftop.

    The initial Federal energy conservation standards for CWAFs were added to EPCA by the Energy Policy Act of 1992 (EPACT 1992), Public Law 102-486 (Oct. 24, 1992). See 42 U.S.C. 6313(a)(4). These types of covered equipment have a rated capacity (rated maximum input 4 ) greater than or equal to 225,000 Btu/h, can be gas-fired or oil-fired, and are designed to heat commercial and industrial buildings. Id.

    4 “Rated maximum input” means the maximum gas-burning capacity of a CWAF in Btus per hour, as specified by the manufacturer.

    Pursuant to section 342(a)(6) of EPCA, DOE is to consider amending the energy efficiency standards for certain types of commercial and industrial equipment whenever ASHRAE amends the standard levels or design requirements prescribed in ASHRAE/IES Standard 90.1, and whenever more than 6 years had elapsed since the issuance of the most recent final rule establishing or amending a standard for the equipment as of the date of AEMTCA's enactment, December 18, 2012. (42 U.S.C. 6313(a)(6)(C)(vi)) Because more than six years had elapsed since DOE issued a final rule with standards for CUACs and CUHPs or CWAFs on October 18, 2005 (see 70 FR 60407), DOE initiated the process to review these standards.

    Pursuant to EPCA, DOE's energy conservation program for covered equipment consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment. (42 U.S.C. 6314) Manufacturers of covered equipment must use the prescribed DOE test procedure as the basis for certifying to DOE that their equipment comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding their energy use or efficiency. (42 U.S.C. 6314(d)) Similarly, DOE must use these test procedures to determine whether a given manufacturer's equipment complies with standards adopted pursuant to EPCA. The DOE test procedures for small, large, and very large CUACs/CUHPs and CWAFs currently appear at title 10 of the Code of Federal Regulations (“CFR”) 431.96 and 431.76, respectively.

    When setting standards for the equipment addressed by this document, EPCA prescribes that in deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. DOE must make this determination after receiving comments on the proposed standard, and by considering, to the maximum extent practicable, the following seven statutory factors:

    1. The economic impact of the standard on manufacturers and consumers of products subject to the standard;

    2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products which are likely to result from the standard;

    3. The total projected amount of energy savings likely to result directly from the standard;

    4. Any lessening of the utility or the performance of the covered products likely to result from the standard;

    5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

    6. The need for national energy conservation; and

    7. Other factors the Secretary of Energy considers relevant. (42 U.S.C. 6313(a)(6)(B)(ii))

    With respect to the types of equipment at issue in this document, EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability, features, sizes, capacities, and volumes) that are substantially the same as those generally available in the United States. (42 U.S.C. 6313(a)(6)(B)(iii)(II))(aa)

    With respect to the equipment addressed by this document, DOE notes that EPCA prescribes limits on the Agency's ability to promulgate a standard if DOE has made a finding that interested persons have established by a preponderance of the evidence that a standard is likely to result in the unavailability of any product type (or class) of performance characteristics that are substantially the same as those generally available in the United States at the time of the finding. See 42 U.S.C. 6313(B)(iii)(II).

    Additionally, EPCA generally specifies criteria to follow when promulgating multiple energy conservation standards for covered products based on different subcategories. In these cases, DOE must specify a different standard level for a type or class of product that has the same function or intended use if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. See 42 U.S.C. 6295(q)(1). In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the customer of such a feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. See 42 U.S.C. 6295(q)(2). With respect to the equipment addressed by this supplemental notice of proposed rulemaking (“SNOPR”), DOE notes that EPCA prescribes limits on the Agency's ability to promulgate a standard if DOE has made a finding that interested persons have established by a preponderance of the evidence that a standard is likely to result in the unavailability of any product type (or class) of performance characteristics that are substantially the same as those generally available in the United States at the time of the finding. See 42 U.S.C. 6313(B)(iii)(II).

    With particular regard to this document, the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140 (December 19, 2007), amended EPCA, in relevant part, to grant DOE authority to issue a type of final rule (i.e., a “direct final rule”) establishing an energy conservation standard for a product on receipt of a statement that is submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, and that contains recommendations with respect to an energy or water conservation standard. If the Secretary determines that the recommended standard contained in the statement is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable, the Secretary may issue a final rule establishing the recommended standard. A notice of proposed rulemaking (“NOPR”) that proposes an identical energy efficiency standard is published simultaneously with the direct final rule. A public comment period of at least 110 days is provided. See 42 U.S.C. 6295(p)(4). Not later than 120 days after the date on which a direct final rule issued under this authority is published in the Federal Register, the Secretary shall withdraw the direct final rule if the Secretary receives 1 or more adverse public comments relating to the direct final rule or any alternative joint recommendation and based on the rulemaking record relating to the direct final rule, the Secretary determines that such adverse public comments or alternative joint recommendation may provide a reasonable basis for withdrawing the direct final rule under subsection 42 U.S.C. 6295(o), 6313(a)(6)(B), or any other applicable law. On withdrawal of a direct final rule, the Secretary shall proceed with the notice of proposed rulemaking published simultaneously with the direct final rule and publish in the Federal Register the reasons why the direct final rule was withdrawn. This direct final rule provision applies to the equipment at issue in this SNOPR. See 42 U.S.C. 6316(b)(1). In this instance, because DOE has already published NOPRs related to the amendment of standards both CUACs/CUHPs and CWAFs, see 79 FR 58948 (September 30, 2014) (CUAC/CUHP proposal) and 80 FR 6182 (February 4, 2015), DOE is publishing an SNOPR consistent with the direct final rule's statutory requirements.

    Responding to comments received from interested parties with respect to DOE's proposals, on April 1, 2015, DOE issued a Notice of Intent to Establish the Commercial Package Air Conditioners and Commercial Warm Air Furnaces Working Group to Negotiate Potential Energy Conservation Standards for Commercial Package Air Conditioners and Commercial Warm Air Furnaces. 80 FR 17363. The CUAC/CUHP-CWAF Working Group (in context, “the Working Group”) was established under the Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act with the purpose of discussing and, if possible, reaching consensus on a set of energy conservation standards to propose or finalize for CUACs, CUHPs and CWAFs. The Working Group was to consist of fairly representative parties having a defined stake in the outcome of the proposed standards, and would consult, as appropriate, with a range of experts on technical issues.

    DOE received 17 nominations for membership. Ultimately, the Working Group consisted of 17 members, including one member from ASRAC and one DOE representative.5 The Working Group met six times (five times in-person and once by teleconference). The meetings were held on April 28, May 11-12, May 20-21, June 1-2, June 9-10, and June 15, 2015. As a result of these efforts, the Working Group successfully reached consensus on energy conservation standards for CUACs, CUHPs, and CWAFs. On June 15, 2015, it submitted a Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted.6 See http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-STD-0007-0093.

    5 The group members were John Cymbalsky (U.S. Department of Energy), Marshall Hunt (Pacific Gas & Electric Company, San Diego Gas & Electric Company, Southern California Edison, and Southern California Gas Company), Andrew deLaski (Appliance Standards Awareness Project), Louis Starr (Northwest Energy Efficiency Alliance), Meg Waltner (Natural Resources Defense Council), Jill Hootman (Ingersoll Rand/Trane), John Hurst (Lennox), Karen Meyers (Rheem Manufacturing Company), Charlie McCrudden (Air Conditioning Contractors of America), Harvey Sachs (American Council for an Energy Efficient Economy), Paul Doppel (Mitsubishi Electric), Robert Whitwell (United Technologies Corporation), Michael Shows (Underwriters Laboratories), Russell Tharp (Goodman Manufacturing), Sami Zendah (Emerson Climate Technologies), Mark Tezigni (Sheet Metal and Air Conditioning Contractors National Association, Inc.), Nick Mislak (Air-Conditioning, Heating, and Refrigeration Institute).

    6 Available at http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-STD-0007-0093. The following individuals served as members of ASRAC that received and approved the Term Sheet: Co-Chair John Mandyck (Carrier/United Technologies Corporation), Co-Chair Andrew deLaski (Appliance Standards Awareness Project), Ashley Armstrong (U.S. Department of Energy), John Caskey (National Electrical Manufacturers Association), Jennifer Cleary (Association of Home Appliance Manufacturers), Thomas Eckman (Northwest Power and Conservation Council), Charles Hon (True Manufacturing Company), Dr. David Hungerford (California Energy Commission), Dr. Diane Jakobs (Rheem Manufacturing Company), Kelley Kline (General Electric, Appliances), Deborah Miller (National Association of State Energy Officials), and Scott Blake Harris (Harris, Wiltshire & Grannis, LLP).

    DOE has determined that the statement containing recommendations with respect to energy conservation standards for CUACs, CUHPs and CWAFs was submitted jointly by interested persons that are fairly representative of relevant points of view, in accordance with 42 U.S.C. 6295(p)(4)(A) and 6313(a)(6)(B).7 In reaching this determination, DOE took into consideration the fact that the Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of covered products, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers of the subject equipment, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. The ASRAC Committee approving the Working Group's recommendations included at least two members representing States—one representing the National Association of State Energy Officials (NASEO) and one representing the State of California.8 By its plain terms, the statute contemplates that the Secretary will exercise discetion to determine whether a given statement is “submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates).” In this case, given the broad range of persons participating in the process that led to the submission—in the Working Group and in ASRAC—and given the breadth of perspectives expressed in that process, DOE has determined that the statement it received meets this criterion.

    7 See 42 U.S.C. 6313(b) (applying 42 U.S.C. 6295(p)(4) to energy conservation standard rulemakings involving a variety of industrial equipment, including CUACs, CUHPs, and CWAFs).

    8 These individuals were Deborah E. Miller (NASEO) and David Hungerford (California Energy Commission).

    Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. In making this determination, DOE has conducted an analysis to evaluate whether the potential energy conservation standards under consideration would meet these requirements. This evaluation is similar to the comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in the significant conservation of energy. Upon review, the Secretary determined that the Term Sheet submitted in the instant rulemaking comports with the standard-setting criteria set forth under 42 U.S.C. 6313(a)(6)(B). As a result, DOE published a direct final rule establishing energy conservation standards for CUACs/CUHPs and CWAFs elsewhere in this Federal Register. If DOE receives adverse comments that may provide a reasonable basis for withdrawal and withdraws the direct final rule, DOE will consider those comments and any other comments received in determining how to proceed with this proposed rule.

    For further background information on these proposed standards and the supporting analyses, please see the direct final rule published elsewhere in this Federal Register. That document includes additional discussion of the EPCA requirements for promulgation of energy conservation standards; the current standards for CUACs/CUHPs and CWAFs; the history of the standards rulemakings establishing such standards; and information on the test procedures used to measure the energy efficiency of CUACs/CUHPs and CWAFs. The document also contains an in-depth discussion of the analyses conducted in support of this rulemaking, the methodologies DOE used in conducting those analyses, and the analytical results.

    II. Proposed Standards

    When considering more stringent standards for the equipment at issue, DOE must determine, supported by clear and convincing evidence that adopting those standards would result in the significant additional conservation of energy and be technologically feasible and economically justified. See 42 U.S.C. 6313(a)(6)(A)(ii). In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII))

    DOE considered the impacts of amended standards for CUACs/CUHPs and CWAFs at each TSL, beginning with the maximum technologically feasible level, to determine whether that level would be economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.

    To aid the reader as DOE discusses the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification.

    A. Benefits and Burdens of TSLs Considered for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment

    Table II.1 and Table II.2 summarize the quantitative impacts estimated for each TSL for CUACs and CUHPs. The national impacts are measured over the lifetime of CUACs and CUHPs purchased in the 2018-2048 period. The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule.

    Table II.1—Summary of Analytical Results for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment: National Impacts Category TSL 1 TSL 2 TSL 2.5 Recommended TSL* TSL 3 TSL 3.5 TSL 4 TSL 5 National FFC Energy Savings ( quads ) 5.3 9.8 13.9 14.8 15.9 16.4 19.7 23.4 NPV of Consumer Benefits ( 2014$ billion ) 3% discount rate 18.0 32.8 47.5 50.0 53.7 55.3 64.1 68.2 7% discount rate 5.4 10.1 15.1 15.2 16.8 17.1 19.2 18.8 Cumulative Emissions Reduction ( Total FFC Emissions ) CO2 (million metric tons) 314 578 824 873 943 973 1,167 1,383 SO2 (thousand tons) 164 303 431 454 493 508 610 722 NOX (thousand tons) 586 1,080 1,538 1,634 1,759 1,815 2,180 2,584 Hg (tons) 0.61 1.12 1.59 1.68 1.82 1.88 2.25 2.66 CH4 (thousand tons) 1,401 2,582 3,677 3,917 4,208 4,342 5,215 6,185 N2O (thousand tons) 3.45 6.35 9.05 9.54 10.34 10.67 12.80 15.16 CH4 (million tons CO 2 eq **) 39.2 72.3 103.0 109.7 117.8 121.6 146.0 173.2 N2O (thousand tons CO 2 eq **) 913 1,682 2,397 2,528 2,741 2,828 3,392 4,017 Value of Emissions Reduction ( Total FFC Emissions ) CO2 (2014$ billion)† 1.845 to 27.53 3.409 to 50.82 4.870 to 72.52 5.046 to 75.94 5.556 to 82.83 5.729 to 85.44 6.860 to 102.4 8.127 to 121.4 NOX—3% discount rate (2014$ million) 1,828 3,376 4,820 5,038 5,503 5,677 6,804 8,067 NOX—7% discount rate (2014$ million) 606 1,121 1,604 1,614 1,826 1,881 2,245 2,652 * For the Recommended TSL, the NES is forecasted over the lifetime of equipment sold from 2018-2048. For the other TSLs, the NES is forecasted over the lifetime of equipment sold from 2019-2048. ** CO2eq is the quantity of CO2 that would have the same global warming potential (GWP). † Range of the economic value of CO2 reductions is based on estimates of the global benefit of reduced CO2 emissions. Table II.2—Summary of Analytical Results for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment: Manufacturer and Consumer Impacts Category TSL 1 TSL 2 TSL 2.5 Recommended TSL TSL 3 TSL 3.5 TSL 4 TSL 5 Manufacturer Impacts Industry NPV (2014$ million) (No-new-standards case INPV = 1,638.2) 1,431.0 to 1,705.5 1,421.9 to 1,758.6 1,300.5 to 1,721.1 1,204.1 to 1,606.1 1,197.4 to 1,697.0 1,138.2 to 1,670.3 1,025.0 to 1,660.9 762.7 to 1,737.6 Industry NPV (% change) (6.5) to 3.7 (13.5) to 6.9 (20.9) to 4.7 (26.8) to (2.3) (27.2) to 3.2 (30.8) to 1.6 (37.7) to 1.0 (53.6) to 5.7 Commercial Consumer Average LCC Savings (2014$) Small CUACs (210) 870 3,777 4,233 4,233 3,517 3,035 5,326 Large CUACs 3,997 3,728 7,991 10,135 10,135 12,266 16,803 12,900 Very Large CUACs 1,547 4,777 8,610 8,610 8,881 8,881 18,386 18,338 Average * 1,045 1,971 5,340 6,220 6,238 6,396 8,370 8,697 Commercial Consumer PBP (years) Small CUACs 14.9 8.5 4.9 4.9 4.9 2.6 2.5 4.6 Large CUACs 1.3 2.4 2.4 2.6 2.6 2.6 2.5 4.6 Very Large CUACs 5.8 7.0 6.2 6.2 7.2 7.2 5.6 6.3 Average * 10.6 6.7 4.3 4.4 4.5 3.0 2.8 4.8 % of Consumers that Experience Net Cost Small CUACs 48 25 5 5 5 13 25 16 Large CUACs 0 10 5 2 2 1 1 11 Very Large CUACs 7 13 7 7 23 23 3 6 Average * 32 20 5 4 6 11 16 14 Parentheses indicate negative (−) values. * Weighted by shares of each equipment class in total projected shipments in the year of compliance.

    DOE first considered TSL 5, which represents the max-tech efficiency levels. TSL 5 would save 23.4 quads of energy, an amount DOE considers significant. Under TSL 5, the NPV of consumer benefit would be $18.8 billion using a discount rate of 7-percent, and $68.2 billion using a discount rate of 3-percent.

    The cumulative emissions reductions at TSL 5 are 1,383 million Mt of CO2, 722 thousand tons of SO2, 2,584 thousand tons of NOX, 2.66 tons of Hg, 6,185 thousand tons of CH4, and 15.16 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 5 ranges from $8.127 billion to $121.4 billion.

    At TSL 5, the average LCC impact is a savings of $5,326 for small CUACs, $12,900 for large CUACs, and $18,338 for very large CUACs. The simple payback period is 4.6 years for small CUACs, 4.6 years for large CUACs, and 6.3 years for very large CUACs. The fraction of consumers experiencing a net LCC cost is 16 percent for small CUACs, 11 percent for large CUACs, and 6 percent for very large CUACs. Although DOE did not estimate consumer impacts for CUHPs, the results would be very similar to those for CUACs for the reasons stated in section V.B.1 of the direct final rule.

    At TSL 5, the projected change in INPV ranges from a decrease of $881.9 million to an increase of $93.1 million, which corresponds to a change of −53.7 percent and 5.7 percent, respectively. The industry is expected to incur $591.0 million in total conversion costs at this level. DOE projects that 98.7 percent of current equipment listings would require redesign at this level to meet this standard level today. At this level, DOE recognizes that manufacturers could face technical resource constraints. Manufacturers stated they would require additional engineering expertise and additional test laboratory capacity. It is unclear whether manufacturers could complete the hiring of the necessary technical expertise and construction of the necessary test facilities in time to allow for the redesign of all equipment to meet max-tech by 2019. Furthermore, DOE recognizes that a standard set at max-tech could greatly limit equipment differentiation in the CUAC/CUHP market. By commoditizing a key differentiating feature, a standard set at max-tech would likely accelerate consolidaton in the industry.

    The Secretary tentatively concludes that at TSL 5 for CUACs and CUHPs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 5 is not economically justified.

    DOE then considered TSL 4. TSL 4 would save 19.7 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer benefit would be $19.2 billion using a discount rate of 7-percent, and $64.1 billion using a discount rate of 3-percent.

    The cumulative emissions reductions at TSL 4 are 1,167 million Mt of CO2, 610 thousand tons of SO2, 2,180 thousand tons of NOX, 2.25 tons of Hg, 5,215 thousand tons of CH4, and 12.80 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 4 ranges from $6.860 billion to $102.4 billion.

    At TSL 4, the average LCC impact is a savings of $3,035 for small CUACs, $16,803 for large CUACs, and $18,386 for very large CUACs. The simple payback period is 2.5 years for small CUACs, 2.5 years for large CUACs, and 5.6 years for very large CUACs. The fraction of consumers experiencing a net LCC cost is 25 percent for small CUACs, 1 percent for large CUACs, and 3 percent for very large CUACs. Although DOE did not estimate consumer impacts for CUHPs, the results would be very similar to those for CUACs for the reasons stated in section V.B.1 of the direct final rule.

    At TSL 4, the projected change in INPV ranges from a decrease of $619.6 million to an increase of $16.3 million, which corresponds to a change of −37.7 percent and 1.0 percent, respectively. The industry is expected to incur $538.8 million in total conversion costs at this level. DOE projects that 96.0 percent of current equipment listings would require redesign at this level to meet this standard level today.

    The Secretary tentatively concludes that at TSL 4 for CUACs and CUHPs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 4 is not economically justified.

    DOE then considered TSL 3.5. TSL 3.5 would save 16.4 quads of energy, an amount DOE considers significant. Under TSL 3.5, the NPV of consumer benefit would be $17.1 billion using a discount rate of 7-percent, and $55.3 billion using a discount rate of 3-percent.

    The cumulative emissions reductions at TSL 3.5 are 973 million Mt of CO2, 508 thousand tons of SO2, 1,815 thousand tons of NOX, 1.88 tons of Hg, 4,342 thousand tons of CH4, and 10.67 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 3.5 ranges from $5.729 billion to $85.44 billion.

    At TSL 3.5, the average LCC impact is a savings of $3,517 for small CUACs, $12,266 for large CUACs, and $8,881 for very large CUACs. The simple payback period is 2.6 years for small CUACs, 2.6 years for large CUACs, and 7.2 years for very large CUACs. The fraction of consumers experiencing a net LCC cost is 13 percent for small CUACs, 1 percent for large CUAC, and 23 percent for very large CUACs. Although DOE did not estimate consumer impacts for CUHPs, the results would be very similar to those for CUACs for the reasons stated in section V.B.1 of the direct final rule.

    At TSL 3.5, the projected change in INPV ranges from a decrease of $506.4 million to an increase of $25.7 million, which corresponds to a change of −30.8 percent and 1.6 percent, respectively. The industry is expected to incur $489.2 million in total conversion costs at this level. DOE projects that 93.5 percent of current equipment listings would require redesign at this level to meet this standard level today.

    The Secretary tentatively concludes that at TSL 3.5 for CUACs and CUHPs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 3.5 is not economically justified.

    DOE then considered TSL 3. TSL 3 would save 15.9 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be $16.8 billion using a discount rate of 7-percent, and $53.7 billion using a discount rate of 3-percent.

    The cumulative emissions reductions at TSL 3 are 943 million Mt of CO2, 493 thousand tons of SO2, 1,759 thousand tons of NOX, 1.82 tons of Hg, 4,208 thousand tons of CH4, and 10.34 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 3 ranges from $5.556 billion to $82.83 billion.

    At TSL 3, the average LCC impact is a savings of $4,233 for small CUACs, $10,135 for large CUACs, and $8,881 for very large CUACs. The simple payback period is 4.9 years for small CUACs, 2.6 years for large CUACs, and 7.2 years for very large CUACs. The fraction of consumers experiencing a net LCC cost is 5 percent for small CUACs, 2 percent for large CUAC, and 23 percent for very large CUACs. Although DOE did not estimate consumer impacts for CUHPs, the results would be very similar to those for CUACs for the reasons stated in section V.B.1 of the direct final rule.

    At TSL 3, the projected change in INPV ranges from a decrease of $447.2 million to an increase of $52.4 million, which corresponds to a change of −27.2 percent and 3.2 percent, respectively. DOE projects that 81.6 percent of current equipment listings would require redesign at this level to meet this standard level today.

    The Secretary tentatively concludes that at TSL 3 for CUACs and CUHPs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 3 is not economically justified.

    DOE then considered the Recommended TSL, which reflects the standard levels recommended by the Working Group. The Recommended TSL would save 14.8 quads of energy, an amount DOE considers significant. Under the Recommended TSL, the NPV of consumer benefit would be $15.2 billion using a discount rate of 7-percent, and $50.0 billion using a discount rate of 3-percent.

    The cumulative emissions reductions at the Recommended TSL are 873 million Mt of CO2, 454 thousand tons of SO2, 1,634 thousand tons of NOX, 1.68 tons of Hg, 3,917 thousand tons of CH4, and 9.54 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at the Recommended TSL ranges from $5.046 billion to $75.94 billion.

    At the Recommended TSL, the average LCC impact is a savings of $4,233 for small CUACs, $10,135 for large CUACs, and $8,610 for very large CUACs. The simple payback period is 4.9 years for small CUACs, 2.6 years for large CUACs, and 6.2 years for very large CUACs. The fraction of consumers experiencing a net LCC cost is 5 percent for small CUACs, 2 percent for large CUACs, and 7 percent for very large CUACs. Although DOE did not estimate consumer impacts for CUHPs, the results would be very similar to those for CUACs for the reasons stated in section V.B.1 of the direct final rule.

    The Recommended TSL, as presented by the Working Group and approved by ASRAC, aligns the effective dates of the CUAC/CUHP and CWAF rulemakings. That approach adopts the ASHRAE 90.1-2013 efficiency levels in 2018 and a higher level in in 2023 as recommended by the Working Group. DOE anticipates that aligning the effective dates will reduce total conversion costs and cumulative regulatory burden, while also allowing industry to gain clarity on potential regulations that could affect refrigerant availability before the higher appliance standard takes effect in 2023. DOE projects that 31.5 percent of current equipment listings would require redesign at this level to meet the 2018 standard level, while 79.6 percent of current equipment listings would require redesign at this level to meet the 2023 standard level.

    At the Recommended TSL, the projected change in INPV ranges from a decrease of $440.4 million to a decrease of $38.5 million, which corresponds to a change of −26.8 percent and −2.3 percent, respectively. The industry is expected to incur $520.8 million in total conversion costs at this level. However, the industry members of the Working Group noted that aligning the compliance dates for the CUAC/CUHP and CWAF standards in the manner recommended would allow manufacturers to coordinate their redesign and testing expenses for these equipment. (CUAC: AHRI and ACEEE, No. 80 at p. 1). With this coordination, manufacturers explained that there would be a reduction in the total conversion costs associated with the direct final rule. The resulting synergies from aligning the CUAC/CUHP and CWAF compliance dates would produce INPV impacts that are less severe than the forecasted INPV range of −26.8 percent to −2.3 percent.

    After considering the analysis and weighing the benefits and burdens, DOE has tentatively determined that the recommended standards are in accordance with 42 U.S.C. 6313(a)(6)(B), which contains provisions for adopting a uniform national standard more stringent than the amended ASHRAE Standard 90.1 for the equipment considered in this document. Specifically, the Secretary has tentatively determined, supported by clear and convincing evidence that such adoption would result in the significant additional conservation of energy and is technologically feasible and economically justified. In determining whether the recommended standards are economically justified, the Secretary has tentatively determined that the benefits of the recommended standards exceed the burdens. Namely, the Secretary has tentatively concluded that under the recommended standards for CUACs and CUHPs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers.

    The proposed amended energy conservation standards for CUACs and CUHPs, which prescribe the minimum allowable IEER and, for commercial unitary heat pumps, COP, are shown in Table II.3.

    Table II.3—Proposed Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment Equipment type Heating type Proposed energy conservation standard Compliance date Small Commercial Packaged AC and HP (Air-Cooled)—≥65,000 Btu/h and <135,000 Btu/h Cooling Capacity AC Electric Resistance Heating or No Heating 12.9 IEER
  • 14.8 IEER
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 12.7 IEER
  • 14.6 IEER
  • January 1, 2018.
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating 12.2 IEER
  • 3.3 COP
  • 14.1 IEER
  • 3.4 COP
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 12.0 IEER
  • 3.3 COP
  • 13.9 IEER
  • 3.4 COP
  • January 1, 2018.
  • January 1, 2023.
  • Large Commercial Packaged AC and HP (Air-Cooled)—≥135,000 Btu/h and <240,000 Btu/h Cooling Capacity AC Electric Resistance Heating or No Heating 12.4 IEER
  • 14.2 IEER
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 12.2 IEER
  • 14.0 IEER
  • January 1, 2018.
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating 11.6 IEER
  • 3.2 COP
  • 13.5 IEER
  • 3.3 COP
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 11.4 IEER
  • 3.2 COP
  • 13.3 IEER
  • 3.3 COP
  • January 1, 2018.
  • January 1, 2023.
  • Very Large Commercial Packaged AC and HP (Air-Cooled)—≥240,000 Btu/h and <760,000 Btu/h Cooling Capacity AC Electric Resistance Heating or No Heating 11.6 IEER
  • 13.2 IEER
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 11.4 IEER
  • 13.0 IEER
  • January 1, 2018.
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating 10.6 IEER
  • 3.2 COP
  • 12.5 IEER
  • 3.2 COP
  • January 1, 2018.
  • January 1, 2023.
  • All Other Types of Heating 10.4 IEER
  • 3.2 COP
  • 12.3 IEER
  • 3.2 COP
  • January 1, 2018.
  • January 1, 2023.
  • The benefits and costs of the proposed standards—which mimic those found in the direct final rule—can also be expressed in terms of annualized values. The annualized net benefit is the sum of: (1) The annualized national economic value (expressed in 2014$) of the benefits from operating equipment that meet the adopted standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, and (2) the annualized monetary value of the benefits of CO2 and NOX emission reductions.9

    9 To convert the time-series of costs and benefits into annualized values, DOE calculated a present value in 2014, the year used for discounting the NPV of total consumer costs and savings. For the benefits, DOE calculated a present value associated with each year's shipments in the year in which the shipments occur (2020, 2030, etc.), and then discounted the present value from each year to 2015. The calculation uses discount rates of 3- and 7-percent for all costs and benefits except for the value of CO2 reductions, for which DOE used case-specific discount rates. Using the present value, DOE then calculated the fixed annual payment over a 30-year period, starting in the compliance year that yields the same present value.

    Table II.4 shows the annualized values for CUACs and CUHPs under the Recommended TSL, expressed in 2014$. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO2 reduction, (for which DOE used a 3-percent discount rate along with the SCC series that has a value of $40.0/t in 2015),10 the estimated cost of the standards in this rule is $708 million per year in increased equipment costs, while the estimated annual benefits are $2,099 million in reduced equipment operating costs, $1,320 million in CO2 reductions, and $147.5 million in reduced NOX emissions. In this case, the net benefit amounts to $2,859 million per year. Using a 3-percent discount rate for all benefits and costs and the SCC series has a value of $40.0/t in 2015, the estimated cost of the standards is $792 million per year in increased equipment costs, while the estimated annual benefits are $3,441 million in reduced operating costs, $1,320 million in CO2 reductions, and $267.3 million in reduced NOX emissions. In this case, the net benefit amounts to $4,237 million per year.

    10 DOE used a 3-percent discount rate because the SCC values for the series used in the calculation were derived using a 3-percent discount rate.

    Table II.4—Annualized Benefits and Costs of Proposed Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment Discount rate (%) Million 2014$/year Primary estimate* Low net
  • benefits
  • estimate
  • High net benefits
  • estimate
  • Benefits Consumer Operating Cost Savings 7
  • 3
  • 2,099
  • 3,441
  • 2,021
  • 3,287
  • 2,309
  • 3,830
  • CO2 Reduction Value ($12.2/t case)** 5 357 355 361 CO2 Reduction Value ($40.0/t case)** 3 1,320 1,313 1,337 CO2 Reduction Value ($62.3/t case)** 2.5 1,973 1,964 1,999 CO2 Reduction Value ($117/t case)** 3 4,028 4,009 4,080 NOX Reduction Value† 7
  • 3
  • 147.5
  • 267.3
  • 146.7
  • 265.9
  • 149.5
  • 270.7
  • Total Benefits†† 7% plus CO2 range 2,603 to 6,275 2,522 to 6,176 2,820 to 6,539 7 3,566 3,481 3,796 3 plus CO2 range 4,065 to 7,737 3,908 to 7,561 4,462 to 8,181 3 5,028 4,866 5,438 Costs Consumer Incremental Product Costs 7
  • 3
  • 708
  • 792
  • 888
  • 1028
  • 275
  • 231
  • Net Benefits Total†† 7% plus CO2 range 1,895 to 5,567 1,635 to 5,288 2,546 to 6,265 7 2,859 2,593 3,521 3 plus CO2 range 3,274 to 6,945 2,879 to 6,533 4,232 to 7,951 3 4,237 3,838 5,207 * This table presents the annualized costs and benefits associated with CUACs and CUHPs shipped in 2018-2048. These results include benefits to consumers which accrue after 2048 from the CUACs and CUHPs purchased in 2018-2048. The results account for the incremental variable and fixed costs incurred by manufacturers due to the standard, some of which may be incurred in preparation for the rule. The Primary, Low Benefits, and High Benefits estimates utilize projections of energy prices from the AEO 2015 Reference case, Low Economic Growth case, and High Economic Growth case, respectively. In addition, incremental product costs reflect a constant price trend in the Primary estimate, a slightly increasing price trend in the Low Benefits estimate, and a slightly decreasing price trend in the Low Benefits estimate. The methods used to project price trends are explained in section IV.D.1. ** The CO2 values represent global monetized values of the SCC, in 2014$, in 2015 under several scenarios of the updated SCC values. The first three cases use the averages of SCC distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The fourth case represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. The SCC time series incorporate an escalation factor. † Total Benefits for both the 3% and 7% cases are derived using the series corresponding to the average SCC with 3-percent discount rate ($40.0/t) case. In the rows labeled “7% plus CO2 range” and “3% plus CO2 range,” the operating cost and NOX benefits are calculated using the labeled discount rate, and those values are added to the full range of CO2 values. † The $/ton values used for NOX are described in section IV.L.2 of the direct final rule. DOE estimated the monetized value of NOx emissions reductions using benefit per ton estimates from the Regulatory Impact Analysis titled, “Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants,” published in June 2014 by EPA's Office of Air Quality Planning and Standards. (Available at: http://www3.epa.gov/ttnecas1/regdata/RIAs/111dproposalRIAfinal0602.pdf.) For DOE's Primary Estimate and Low Net Benefits Estimate, the agency is presenting a national benefit-per-ton estimate for particulate matter emitted from the Electric Generating Unit sector based on an estimate of premature mortality derived from the ACS study (Krewski et al., 2009). For DOE's High Net Benefits Estimate, the benefit-per-ton estimates were based on the Six Cities study (Lepuele et al., 2011), which are nearly two-and-a-half times larger than those from the ACS study. Because of the sensitivity of the benefit-per-ton estimate to the geographical considerations of sources and receptors of emission, DOE intends to investigate refinements to the agency's current approach of one national estimate by assessing the regional approach taken by EPA's Regulatory Impact Analysis for the Clean Power Plan Final Rule. †† Total Benefits for both the 3% and 7% cases are derived using the series corresponding to the average SCC with 3-percent discount rate ($40.0/t) case. In the rows labeled “7% plus CO2 range” and “3% plus CO2 range,” the operating cost and NOX benefits are calculated using the labeled discount rate, and those values are added to the full range of CO2 values.
    B. Benefits and Burdens of TSLs Considered for Commercial Warm Air Furnaces

    Table II.5 and Table II.6 summarize the quantitative impacts estimated for each TSL for CWAFs. For TSL 2, the national impacts are projected over the lifetime of equipment sold in 2023-2048. For the other TSLs, the impacts are projected over the lifetime of equipment sold in 2019-2048. The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule.

    Table II.5—Summary of Analytical Results for Commercial Warm Air Furnaces: National Impacts Trial standard level 1 2 3 4 5 Cumulative FFC Energy Savings Quads 0.25 0.23 0.41 0.41 2.4 NPV of consumer costs and benefits 2014$ billion 3% discount rate 1.1 1.0 -0.1 -0.1 2.6 7% discount rate 0.4 0.3 -0.4 -0.4 -0.4 Cumulative FFC emissions reduction CO2 million metric tons 13.4 12.4 22.0 22.0 126 SO2 thousand tons 0.40 0.40 0.63 0.67 -10.2 NOX thousand tons 43.0 41.2 70.5 72.2 473 Hg tons 0.001 0.001 0.002 0.002 -0.04 CH4 thousand tons 159 146 260 260 1,673 CH4 thousand tons CO 2 eq* 4,440 4,096 7,289 7,292 46,831 N2O thousand tons 0.03 0.03 0.05 0.06 0.08 N2O thousand tons CO 2 eq* 8.8 8.4 14.3 14.6 21.2 Value of emissions reduction CO2 2014$ million** 79.8 to 1,185 71.4 to 1,078 126 to 1,891 126 to 1,897 713 to 10,809 NOX—3% discount rate 2014$ million 120 to 264 110 to 243 188 to 414 192 to 424 1258 to 2772 NOX—7% discount rate 2014$ million 42.3 to 94.4 36.1 to 80.9 64.2 to 144 65.9 to 147 423 to 945 For TSL 2, the impacts are projected over the lifetime of equipment sold in 2023-2048. For the other TSLs, the impacts are projected over the lifetime of equipment sold in 2019-2048. * CO2eq is the quantity of CO2 that would have the same global warming potential (GWP). ** Range of the economic value of CO2 reductions is based on estimates of the global benefit of reduced CO2 emissions. Table II.6—Summary of Analytical Results for Commercial Warm Air Furnaces: Manufacturer and Consumer Impacts* Category Trial standard level 1 2 3 4 5 Manufacturer Impacts Industry NPV (2014$ million) (No-New-Standards Case INPV = 96.3) 85.8 to 92.6 83.0 to 90.5 65.5 to 125.2 60.4 to 124.8 (19.3) to 143.5 Industry NPV (% change) (11.0) to (3.9) (13.9) to (6.1) (32.0) to 29.9 (37.3) to 29.5 (120.1) to 49.0 Consumer average LCC savings (2014$) Gas-Fired Commercial Warm Air Furnaces $284 $284 $75 $75 $766 Oil-Fired Commercial Warm Air Furnaces NA $400 NA $400 $1,817 Average* $284 $285 $75 $79 $781 Consumer simple PBP (years) Gas-Fired Commercial Warm Air Furnaces 1.4 1.4 12.3 12.3 11.3 Oil-Fired Commercial Warm Air Furnaces NA 1.9 NA 1.9 7.5 Average* 1.4 1.4 12.3 12.1 11.3 % of Consumers that Experience Net Cost Gas-Fired Commercial Warm Air Furnaces 6% 6% 58% 58% 58% Oil-Fired Commercial Warm Air Furnaces 0% 11% 0% 11% 54% * Weighted by shares of each equipment class in total projected shipments in 2019. † At max tech, the standard will likely require CWAF manufacturers to make design changes to the cooling components of commercial HVAC products and to the chassis that houses the heating and cooling components. Because these cooling system changes are triggered by the CWAF standard, they are taken into account in the MIA's estimate of conversion costs. The additional expense of updating the commercial cooling product contributes to an INPV loss that is greater than 100%.

    DOE first considered TSL 5, which represents the max-tech efficiency levels. TSL 5 would save 2.4 quads of energy, an amount DOE considers significant. Under TSL 5, the NPV of consumer cost would be $0.4 billion using a 7-percent discount rate, and the NPV of consumer benefit would be $2.6 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 5 are 126 Mt of CO2, 473 thousand tons of NOX, 1,673 thousand tons of CH4, and 0.08 thousand tons of N2O. Projected emissions show an increase of 10.2 thousand tons of SO2 and 0.04 ton of Hg. The estimated monetary value of the CO2 emissions reduction at TSL 5 ranges from $713 million to $10,809 million.

    At TSL 5, the average LCC impact is a savings of $766 for gas-fired CWAFs and $1,817 for oil-fired CWAFs. The simple payback period is 11.3 years for gas-fired CWAFs and 7.5 years for oil-fired CWAFs. The fraction of consumers experiencing a net LCC cost is 58 percent for gas-fired CWAF and 54 percent for oil-fired CWAFs.

    At TSL 5, the projected change in INPV ranges from a decrease of $115.7 million to an increase of $47.2 million, which corresponds to a change of −120.1 percent and 49.0 percent, respectively. The industry is expected to incur $157.5 million in total conversion costs at this level. DOE projects that 99 percent of current equipment listings would require redesign at this level.

    The Secretary tentatively concludes that at TSL 5 for CWAFs, the benefits of energy savings, positive NPV of consumer benefits using a discount rate of 3 percent, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on most consumers, the negative NPV of consumer benefits using a 7-percent discount rate, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 5 is not economically justified.

    DOE then considered TSL 4. TSL 4 would save 0.41 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer cost would be $0.4 billion using a 7-percent discount rate, and $0.1 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 4 are 22 Mt of CO2, 0.67 thousand tons of SO2, 72.2 thousand tons of NOX, 0.002 ton of Hg, 260 thousand tons of CH4, and 0.06 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 4 ranges from $126 million to $1,897 million.

    At TSL 4, the average LCC impact is a savings of $75 for gas-fired CWAFs and $400 for oil-fired CWAFs. The simple payback period is 12.3 years for gas-fired CWAFs and 1.9 years for oil-fired CWAFs. The fraction of consumers experiencing a net LCC cost is 58 percent for gas-fired CWAFs, and 11 percent for oil-fired CWAFs.

    At TSL 4, the projected change in INPV ranges from a decrease of $35.9 million to an increase of $28.4 million, which corresponds to a change of −37.3 percent and 29.5 percent, respectively. The industry is expected to incur $47.6 million in total conversion costs at this level. DOE projects that 94 percent of current product listings would require redesign at this level.

    The Secretary tentatively concludes that at TSL 4 for CWAFs, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on many consumers, negative NPV of consumer benefits, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 4 is not economically justified.

    DOE then considered TSL 3. TSL 3 would save 0.41 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer cost would be $0.4 billion using a 7-percent discount rate, and $0.1 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 3 are 22 Mt of CO2, 0.63 thousand tons of SO2, 70.5 thousand tons of NOX, 0.002 ton of Hg, 260 thousand tons of CH4, and 0.05 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 3 ranges from $126 million to $1,891 million.

    At TSL 3, the average LCC impact is a savings of $75 for gas-fired CWAFs. The simple payback period is 12.3 years for gas-fired CWAFs. The fraction of consumers experiencing a net LCC cost is 58 percent for gas-fired CWAFs. The EL at TSL 3 for oil-fired CWAFs is the baseline, so there are no LCC impacts for oil-fired CWAFs at TSL 3.

    At TSL 3, the projected change in INPV ranges from a decrease of $30.9 million to an increase of $28.8 million, which corresponds to a change of −32.0 percent and 29.9 percent, respectively. The industry is expected to incur $41.0 million in total conversion costs at this level. DOE projects that 91 percent of current equipment listings would require redesign at this level.

    The Secretary tentatively concludes that at TSL 3 for CWAFs, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on many consumers, negative NPV of consumer benefits, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has tentatively concluded that TSL 3 is not economically justified.

    DOE then considered TSL 2, which corresponds to the recommendations by the Working Group. TSL 2 would save 0.23 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit would be $0.3 billion using a 7-percent discount rate, and $1.0 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 2 are 12.4 Mt of CO2, 0.40 thousand tons of SO2, 41.2 thousand tons of NOX, 0.001 ton of Hg, 146 thousand tons of CH4, and 0.03 thousand tons of N2O. The estimated monetary value of the CO2 emissions reduction at TSL 2 ranges from $71.4 million to $1,078 million.

    At TSL 2, the average LCC impact is a savings of $284 for gas-fired CWAFs and $400 for oil-fired CWAFs. The simple payback period is 1.4 years for gas-fired CWAF and 1.9 years for oil-fired CWAFs. The fraction of consumers experiencing a net LCC cost is 6 percent for gas-fired CWAFs and 11 percent for oil-fired CWAFs.

    At TSL 2, 57 percent of current equipment listings would require redesign at this level. The projected change in INPV ranges from a decrease of $13.4 million to a decrease of $5.9 million, which corresponds to a decrease of 13.9 percent and 6.1 percent, respectively. The CWAF industry is expected to incur $22.2 million in total conversion costs. However, the industry noted that aligning the compliance dates for the CUAC/CUHP and CWAF standards, as recommended by the Working Group, would allow manufacturers to coordinate their redesign and testing expenses for this equipment. If this occurs, there could be a reduction in the total conversion costs associated with the DFR. The resulting synergies from aligning the compliance dates of the CUAC/CUHP and CWAF standards would produce INPV impacts that are less severe than the forecasted INPV range of −13.9 percent to −6.1 percent.

    After considering the analysis and weighing the benefits and burdens, DOE has tentatively determined that the recommended standards are in accordance with 42 U.S.C. 6313(a)(6)(B), which contains provisions for adopting a uniform national standard more stringent than the amended ASHRAE/IES Standard 90.1 for the equipment considered in this document. Specifically, the Secretary has tentatively determined, supported by clear and convincing evidence, that such adoption would result in significant additional conservation of energy and is technologically feasible and economically justified. In determining whether the recommended standards are economically justified, the Secretary has tentatively determined that the benefits of the recommended standards exceed the burdens. Namely, the Secretary has tentatively concluded that under the recommended standards for CWAFs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers.

    Based on the above analyses, DOE is proposing to amend the energy conservation standards for CWAFs—as expressed in terms of thermal efficiency—in the manner shown in Table II.7.

    Table II.7—Proposed Energy Conservation Standards for Commercial Warm Air Furnaces Equipment type Input capacity (Btu/h) Thermal
  • efficiency
  • (%)
  • Gas-fired CWAFs ≥225,000
  • Btu/h
  • 81
    Oil-fired CWAFs ≥225,000
  • Btu/h
  • 82

    The benefits and costs of the proposed standards can also be expressed in terms of annualized values. The annualized net benefit is the sum of: (1) The annualized national economic value (expressed in 2014$) of the benefits from operating equipment that meet the adopted standards (consisting primarily of operating cost savings from using less energy, minus increases in equipment purchase costs), and (2) the annualized monetary value of the benefits of CO2 and NOX emission reductions.

    Table II.8 shows the annualized values for CWAFs under TSL 2, expressed in 2014$. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO2 reductions, (for which DOE used a 3-percent discount rate along with the average SCC series corresponding to a value of $40.0/ton in 2015 (2014$)), the estimated cost of the adopted standards for CWAFs is $4.31 million per year in increased equipment costs, while the estimated benefits are $49.0 million per year in reduced equipment operating costs, $24 million per year in CO2 reductions, and $5.49 million per year in reduced NOX emissions. In this case, the net benefit amounts to $75 million per year.

    Using a 3-percent discount rate for all benefits and costs and the average SCC series corresponding to a value of $40.0/ton in 2015 (in 2014$), the estimated cost of the adopted standards for CWAFs is $4.38 million per year in increased equipment costs, while the estimated benefits are $71 million per year in reduced operating costs, $24.3 million per year in CO2 reductions, and $8.76 million per year in reduced NOX emissions. In this case, the net benefit amounts to $100 million per year.

    Table II.8—Annualized Benefits and Costs of Proposed Standards (TSL 2) for Commercial Warm Air Furnaces Million 2014$/year Discount
  • rate
  • %
  • Primary
  • estimate *
  • Low
  • net benefits
  • estimate *
  • High
  • net benefits
  • estimate *
  • Benefits Consumer Operating Cost Savings 7
  • 3
  • 49
  • 71
  • 48
  • 70
  • 54
  • 81
  • CO2 Reduction Value ($12.2/t case)** 5 6.99 7.08 7.37 CO2 Reduction Value ($40.0/t case)** 3 24 25 26 CO2 Reduction Value ($62.3/t case)** 2.5 36 36 38 CO2 Reduction Value ($117/t case)** 3 74 75 79 NOX Reduction Value† 7
  • 3
  • 5 to 11
  • 8 to 17
  • 5 to 11
  • 8 to 17
  • 5 to 11
  • 8 to 18
  • Total Benefits†† 7 plus CO2 range 61 to 134 60 to 134 67 to 144 7 78 78 85 3 plus CO2 range 86 to 162 84 to 162 96 to 177 3 103 102 114 Costs Consumer Incremental Installed Costs 7
  • 3
  • 4.31
  • 4.38
  • 5.04
  • 5.22
  • 3.92
  • 3.94
  • Net Benefits Total†† 7 plus CO2 range 57 to 130 55 to 129 63 to 140 7 74 72 81 3 plus CO2 range 82 to 158 79 to 157 92 to 173 3 99 97 110 *This table presents the annualized costs and benefits associated with CWAFs shipped in 2023-2048. These results include benefits to consumers which accrue after 2048 from the CWAFs purchased from 2023-2048. The results account for the incremental variable and fixed costs incurred by manufacturers due to the standard, some of which may be incurred in preparation for the rule. The Primary, Low Benefits, and High Benefits Estimates utilize projections of energy prices from the AEO 2015 Reference case, Low Economic Growth case, and High Economic Growth case, respectively. In addition, incremental equipment costs reflect a medium decline rate in the Primary Estimate, a low decline rate in the Low Benefits Estimate, and a high decline rate in the High Benefits Estimate. **The CO2 values represent global monetized values of the SCC, in 2014$, in 2015 under several scenarios of the updated SCC values. The first three cases use the averages of SCC distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The fourth case represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. The SCC time series incorporate an escalation factor. †The $/ton values used for NOX are described in the Direct Final Rule. DOE estimated the monetized value of NOx emissions reductions using benefit per ton estimates from the Regulatory Impact Analysis titled, “Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants,” published in June 2014 by EPA's Office of Air Quality Planning and Standards. (Available at: http://www3.epa.gov/ttnecas1/regdata/RIAs/111dproposalRIAfinal0602.pdf.) For DOE's Primary Estimate and Low Net Benefits Estimate, the agency is presenting a national benefit-per-ton estimate for particulate matter emitted from the Electric Generating Unit sector based on an estimate of premature mortality derived from the ACS study (Krewski et al., 2009). For DOE's High Net Benefits Estimate, the benefit-per-ton estimates were based on the Six Cities study (Lepuele et al., 2011), which are nearly two-and-a-half times larger than those from the ACS study. Because of the sensitivity of the benefit-per-ton estimate to the geographical considerations of sources and receptors of emission, DOE intends to investigate refinements to the agency's current approach of one national estimate by assessing the regional approach taken by EPA's Regulatory Impact Analysis for the Clean Power Plan Final Rule. ††Total Benefits for both the 3% and 7% cases are derived using the series corresponding to the average SCC with 3-percent discount rate ($40.0/t case. In the rows labeled “7% plus CO2 range” and “3% plus CO2 range,” the operating cost and NOX benefits are calculated using the labeled discount rate, and those values are added to the full range of CO2 values.
    III. Public Participation Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

    Submitting comments via www.regulations.gov. The www.regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.

    DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery/courier, or mail. Comments and documents submitted via email, hand delivery/courier, or mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery/courier two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    IV. Procedural Issues and Regulatory Review

    The regulatory reviews conducted for this proposed rule are identical to those conducted for the direct final rule published elsewhere in this Federal Register. Please see the direct final rule for further details.

    V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed rule.

    List of Subjects in 10 CFR Part 431

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.

    Issued in Washington, DC, on December 17, 2015. David T. Danielson, Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, DOE proposes to amend part 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, to read as set forth below:

    PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 431 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Section 431.77 is revised to read as follows:
    § 431.77 Energy conservation standards and their effective dates.

    (a) Gas-fired commercial warm air furnaces. Each gas-fired commercial warm air furnace must meet the following energy efficiency standard levels:

    (1) For gas-fired commercial warm air furnaces manufactured starting on January 1, 1994, until January 1, 2023, the TE at the maximum rated capacity (rated maximum input) must be not less than 80 percent; and

    (2) For gas-fired commercial warm air furnaces manufactured starting on January 1, 2023, the TE at the maximum rated capacity (rated maximum input) must be not less than 81 percent.

    (b) Oil-fired commercial warm air furnaces. Each oil-fired commercial warm air furnace must meet the following energy efficiency standard levels:

    (1) For oil-fired commercial warm air furnaces manufactured starting on January 1, 1994, until January 1, 2023, the TE at the maximum rated capacity (rated maximum input) must be not less than 81 percent; and

    (2) For oil-fired commercial warm air furnaces manufactured starting on January 1, 2023, the TE at the maximum rated capacity (rated maximum input) must be not less than 82 percent.

    3. Section 431.92 is amended by adding the definition of “Double-duct air conditioner or heat pump means air-cooled commercial package air conditioning and heating equipment” in alphabetical order to read as follows:
    § 431.92 Definitions concerning commercial air conditioners and heat pumps.

    Double-duct air conditioner or heat pump means air-cooled commercial package air conditioning and heating equipment that—

    (1) Is either a horizontal single package or split-system unit; or a vertical unit that consists of two components that may be shipped or installed either connected or split;

    (2) Is intended for indoor installation with ducting of outdoor air from the building exterior to and from the unit, as evidenced by the unit and/or all of its components being non-weatherized, including the absence of any marking (or listing) indicating compliance with UL 1995, “Heating and Cooling Equipment,” or any other equivalent requirements for outdoor use;

    (3)(i) If it is a horizontal unit, a complete unit has a maximum height of 35 inches;

    (ii) If it is a vertical unit, a complete unit has a maximum depth of 35 inches; and

    (4) Has a rated cooling capacity greater than or equal to 65,000 Btu/h and up to 300,000 Btu/h.

    4. Section 431.97 is amended by:

    a. Redesignating Tables 5 through 11 as Tables 7 through 13;

    b. Revising paragraph (b) and the introductory text of paragraph (c);

    c. In paragraph (d)(1) introductory text, removing “Table 7” and adding in its place “Table 9”;

    d. In paragraph (d)(2) introductory text, removing “Table 8” and adding in its place “Table 10”; and

    e. In paragraph (d)(3) introductory text, removing “Table 9” and adding in its place “Table 11”.

    The revisions read as follows:

    § 431.97 Energy efficiency standards and their compliance dates.

    (b) Each commercial air conditioner or heat pump (not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, and variable refrigerant flow systems) manufactured starting on the compliance date listed in the corresponding table must meet the applicable minimum energy efficiency standard level(s) set forth in Tables 1 through 6 of this section.

    Table 1 to § 431.97—Minimum Cooling Efficiency Standards for Air Conditioning and Heating Equipment [Not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, and variable refrigerant flow multi-split air conditioners and heat pumps] Equipment type Cooling capacity Sub-category Heating type Efficiency level Compliance date: Equipment
  • manufactured starting on . . .
  • Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Split-System) <65,000 Btu/h AC All SEER = 13 June 16, 2008. HP All SEER = 13 June 16, 2008.1 Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Single-Package) <65,000 Btu/h AC All SEER = 13 June 16, 2008.1 HP All SEER = 13 June 16, 2008.1 Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h AC No Heating or Electric Resistance Heating EER = 11.2 January 1, 2010.2 All Other Types of Heating EER = 11.0 January 1, 2010.2 HP No Heating or Electric Resistance Heating EER = 11.0 January 1, 2010.2 All Other Types of Heating EER = 10.8 January 1, 2010.2 Large Commercial Package Air Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h AC No Heating or Electric Resistance Heating EER = 11.0 January 1, 2010.2 All Other Types of Heating EER = 10.8 January 1, 2010.2 HP No Heating or Electric Resistance Heating EER = 10.6 January 1, 2010.2 All Other Types of Heating EER = 10.4 January 1, 2010.2 Very Large Commercial Package Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <760,000 Btu/h AC No Heating or Electric Resistance Heating EER = 10.0 January 1, 2010.2 All Other Types of Heating EER = 9.8 January 1, 2010.2 HP No Heating or Electric Resistance Heating EER = 9.5 January 1, 2010.2 All Other Types of Heating EER = 9.3 January 1, 2010.2 Small Commercial Package Air Conditioning and Heating Equipment (Water-Cooled) <65,000 Btu/h AC All EER = 12.1 October 29, 2003. ≥65,000 Btu/h and <135,000 Btu/h AC No Heating or Electric Resistance Heating EER = 12.1 June 1, 2013. All Other Types of Heating EER = 11.9 June 1, 2013. Large Commercial Package Air-Conditioning and Heating Equipment (Water-Cooled) ≥135,000 Btu/h and <240,000 Btu/h AC No Heating or Electric Resistance Heating EER = 12.5 June 1, 2014. All Other Types of Heating EER = 12.3 June 1, 2014. Very Large Commercial Package Air-Conditioning and Heating Equipment (Water-Cooled) ≥240,000 Btu/h and <760,000 Btu/h AC No Heating or Electric Resistance Heating EER = 12.4 June 1, 2014. All Other Types of Heating EER = 12.2 June 1, 2014. Small Commercial Package Air-Conditioning and Heating Equipment (Evaporatively-Cooled) <65,000 Btu/h AC All EER = 12.1 October 29, 2003. ≥65,000 Btu/h and <135,000 Btu/h AC No Heating or Electric Resistance Heating EER = 12.1 June 1, 2013. All Other Types of Heating EER = 11.9 June 1, 2013. Large Commercial Package Air-Conditioning and Heating Equipment (Evaporatively-Cooled) ≥135,000 Btu/h and <240,000 Btu/h AC No Heating or Electric Resistance Heating EER = 12.0 June 1, 2014. All Other Types of Heating EER = 11.8 June 1, 2014. Very Large Commercial Package Air Conditioning and Heating Equipment (Evaporatively-Cooled) ≥240,000 Btu/h and <760,000 Btu/h AC No Heating or Electric Resistance Heating EER = 11.9 June 1, 2014. All Other Types of Heating EER = 11.7 June 1, 2014. Small Commercial Package Air-Conditioning and Heating Equipment (Water-Source: Water-to-Air, Water-Loop) <17,000 Btu/h HP All EER = 11.2 October 29, 2003.3 ≥17,000 Btu/h and <65,000 Btu/h HP All EER = 12.0 October 29, 2003.3 ≥65,000 Btu/h and <135,000 Btu/h HP All EER = 12.0 October 29, 2003.3 1 And manufactured before January 1, 2017. See Table 3 of this section for updated efficiency standards. 2 And manufactured before January 1, 2018. See Table 3 of this section for updated efficiency standards. 3 And manufactured before October 9, 2015. See Table 3 of this section for updated efficiency standards.
    Table 2 to § 431.97—Minimum Heating Efficiency Standards for Air Conditioning and Heating Equipment [Heat pumps] [Not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, variable refrigerant flow multi-split air conditioners and heat pumps, and double-duct air-cooled commercial package air conditioning and heating equipment] Equipment type Cooling capacity Efficiency level Compliance date: Equipment manufactured starting on . . . Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Split-System) <65,000 Btu/h HSPF = 7.7 June 16, 2008.1 Small Commercial Package Air-Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Single-Package) <65,000 Btu/h HSPF = 7.7 June 16, 2008.1 Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h COP = 3.3 January 1, 2010.2 Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h COP = 3.2 January 1, 2010.2 Very Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <760,000 Btu/h COP = 3.2 January 1, 2010.2 Small Commercial Packaged Air Conditioning and Heating Equipment (Water-Source: Water-to-Air, Water-Loop) <135,000 Btu/h COP = 4.2 October 29, 2003. 1 And manufactured before January 1, 2017. See Table 4 of this section for updated heating efficiency standards. 2 And manufactured before January 1, 2018. See Table 4 of this section for updated heating efficiency standards. Table 3 to § 431.97—Updates to the Minimum Cooling Efficiency Standards for Air Conditioning and Heating Equipment [Not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, variable refrigerant flow multi-split air conditioners and heat pumps, and double-duct air-cooled commercial package air conditioning and heating equipment] Equipment type Cooling capacity Sub-category Heating type Efficiency level Compliance date: Equipment manufactured starting on . . . Small Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h AC Electric Resistance Heating or No Heating IEER = 12.9
  • IEER = 14.8
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 12.7
  • IEER = 14.6
  • January 1, 2018.1
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating IEER = 12.2
  • IEER = 14.1
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 12.0
  • IEER = 13.9
  • January 1, 2018.1
  • January 1, 2023.
  • Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h AC Electric Resistance Heating or No Heating IEER = 12.4
  • IEER = 14.2
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 12.2
  • IEER = 14.0
  • January 1, 2018.1
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating IEER = 11.6
  • IEER = 13.5
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 11.4
  • IEER = 13.3
  • January 1, 2018.1
  • January 1, 2023.
  • Very Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <760,000 Btu/h AC Electric Resistance Heating or No Heating IEER = 11.6
  • IEER = 13.2
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 11.4
  • IEER = 13.0
  • January 1, 2018.1
  • January 1, 2023.
  • HP Electric Resistance Heating or No Heating IEER = 10.6
  • IEER = 12.5
  • January 1, 2018.1
  • January 1, 2023.
  • All Other Types of Heating IEER = 10.4
  • IEER = 12.3
  • January 1, 2018.1
  • January 1, 2023.
  • Small Commercial Package Air-Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Split-System) <65,000 Btu/h AC All SEER = 13.0 June 16, 2008. HP All SEER = 14.0 January 1, 2017. Small Commercial Package Air-Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Single-Package) <65,000 Btu/h AC All SEER = 14.0 January 1, 2017. HP All SEER = 14.0 January 1, 2017. Small Commercial Packaged Air-Conditioning and Heating Equipment (Water Source: Water-to-Air, Water-Loop) <17,000 Btu/h HP All EER = 12.2 October 9, 2015. ≥17,000 Btu/h and <65,000 Btu/h HP All EER = 13.0 October 9, 2015. ≥65,000 Btu/h and <135,000 Btu/h HP All EER = 13.0 October 9, 2015. 1 And manufactured before January 1, 2023.
    Table 4 to § 431.97—Updates to the Minimum Heating Efficiency Standards for Air-Cooled Air Conditioning and Heating Equipment [Heat Pumps] [Not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, variable refrigerant flow multi-split air conditioners and heat pumps, and double-duct air-cooled commercial package air conditioning and heating equipment] Equipment type Cooling capacity Efficiency level 1 Compliance date:
  • equipment manufactured
  • starting on . . .
  • Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Split-Sytem) <65,000 Btu/h HSPF = 8.2 January 1, 2017. Small Commercial Package Air Conditioning and Heating Equipment (Air-Cooled, 3-Phase, Single Package) <65,000 Btu/h HSPF = 8.0 January 1, 2017. Small Commercial Package Air Conditioning and Heating Equipment (Water-Source: Water-to-Air, Water-Loop) <135,000 Btu/h COP = 4.3 October 9, 2015. Small Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h COP = 3.3
  • COP = 3.4
  • January 1, 2018.2.
  • January 1, 2023.
  • Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h COP = 3.2
  • COP = 3.3
  • January 1, 2018.2.
  • January 1, 2023.
  • Very Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <760,000 Btu/h COP = 3.2 January 1, 2018. 1 For units tested using the relevant AHRI Standards, all COP values must be rated at 47 °F outdoor dry-bulb temperature for air-cooled equipment. 2 And manufactured before January 1, 2023.
    Table 5 to § 431.97—Minimum Cooling Efficiency Standards for Double-Duct Air-Conditioning and Heating Equipment Equipment type Cooling capacity Sub-category Heating type Efficiency level Compliance date: equipment manufactured starting on. . . Small Double-Duct Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h AC Electric Resistance Heating or No Heating EER = 11.2 January 1, 2010. All Other Types of Heating EER = 11.0 January 1, 2010. HP Electric Resistance Heating or No Heating EER = 11.0 January 1, 2010. All Other Types of Heating EER = 10.8 January 1, 2010. Large Commercial Double-Duct Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h AC Electric Resistance Heating or No Heating EER = 11.0 January 1, 2010. All Other Types of Heating EER = 10.8 January 1, 2010. HP Electric Resistance Heating or No Heating EER = 10.6 January 1, 2010. All Other Types of Heating EER = 10.4 January 1, 2010. Very Large Double-Duct Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <300,000 Btu/h AC Electric Resistance Heating or No Heating EER = 10.0 January 1, 2010. All Other Types of Heating EER = 9.8 January 1, 2010. HP Electric Resistance Heating or No Heating EER = 9.5 January 1, 2010. All Other Types of Heating EER = 9.3 January 1, 2010. Table 6 to § 431.97—Minimum Heating Efficiency Standards for Double-Duct Air-Cooled Air Conditioning and Heating Equipment [Heat pumps] Equipment type Cooling capacity Heating type Efficiency level 1 Compliance date:
  • Equipment manufactured
  • starting on . . .
  • Small Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥65,000 Btu/h and <135,000 Btu/h Electric Resistance Heating or No Heating COP = 3.3 January 1, 2010. All Other Types of Heating COP = 3.3 January 1, 2010. Large Commercial Packaged Air-Conditioning and Heating Equipment (Air-Cooled) ≥135,000 Btu/h and <240,000 Btu/h Electric Resistance Heating or No Heating COP = 3.2 January 1, 2010. All Other Types of Heating COP = 3.2 January 1, 2010. Very Large Commercial Packaged Air Conditioning and Heating Equipment (Air-Cooled) ≥240,000 Btu/h and <300,000 Btu/h Electric Resistance Heating or No Heating COP = 3.2 January 1, 2010. All Other Types of Heating COP = 3.2 January 1, 2010. 1 For units tested using the relevant AHRI Standards, all COP values must be rated at 47 °F outdoor dry-bulb temperature for air-cooled equipment.

    (c) Each packaged terminal air conditioner (PTAC) and packaged terminal heat pump (PTHP) manufactured starting on January 1, 1994, but before October 8, 2012 (for standard size PTACs and PTHPs) and before October 7, 2010 (for non-standard size PTACs and PTHPs) must meet the applicable minimum energy efficiency standard level(s) set forth in Table 7 of this section. Each standard size PTAC and PTHP manufactured starting on October 8, 2012, and each non-standard size PTAC and PTHP manufactured starting on October 7, 2010, must meet the applicable minimum energy efficiency standard level(s) set forth in Table 6 of this section.

    [FR Doc. 2015-33069 Filed 1-14-16; 8:45 am] BILLING CODE 6450-01-P
    SMALL BUSINESS ADMINISTRATION 13 CFR Part 120 RIN 3245-AG76 Economic Development Investments for Certified Development Companies AGENCY:

    U.S. Small Business Administration.

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The U.S. Small Business Administration (SBA) is soliciting comments on whether Certified Development Companies (CDCs) should be required to invest specific amounts in local economic development activities (other than lending through the CDC program) and to reserve specific amounts for their future operations. SBA is also soliciting input into what types of activities may qualify as economic development activities.

    DATES:

    Comments must be submitted on or before March 15, 2016.

    ADDRESSES:

    You may submit comments, identified by RIN 3245-AG76, by any of the following methods: (1) Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments; or (2) Mail/Hand Delivery/Courier: U.S. Small Business Administration, Attn: Linda Reilly, Acting Director, Office of Financial Assistance, 409 Third Street SW., 8th Floor, Washington, DC 20416. All comments will be posted on www.regulations.gov. If you wish to submit confidential business information (CBI) as defined in the User Notice at www.regulations.gov, you must submit such information to the U.S. Small Business Administration, Attn: Linda Reilly, Acting Director, Office of Financial Assistance, 409 Third Street SW., 8th Floor, Washington, DC 20416, or send an email to [email protected] Highlight the information that you consider to be CBI and explain why you believe SBA should hold this information as confidential. SBA will review your information and determine whether it will make the information public.

    FOR FURTHER INFORMATION CONTACT:

    Linda Reilly, Acting Director, Office of Financial Assistance, U.S. Small Business Administration, 409 3rd Street SW., 8th Floor, Washington, DC 20416, telephone number (202) 205-9949 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    The Certified Development Company (CDC) program, also referred to as the 504 Loan Program, is authorized pursuant to Title V of the Small Business Investment Act of 1958, 15 U.S.C. 695 et seq. The 504 Loan Program is an SBA financing program established to target companies in their growth cycle to create jobs, expand the tax base, and improve American communities. Specifically, the core mission of the 504 Loan Program is to provide long-term fixed asset financing (504 Loans) to small businesses for the purchase or improvement of land, buildings, and major equipment purchases, in an effort to facilitate the creation of jobs and local economic development.

    Under the 504 Loan Program, loans are made to small business applicants by CDCs, which are SBA's community-based partners for providing 504 Loans. With the exception of several for-profit CDCs grandfathered into the 504 Loan Program, a CDC is a nonprofit corporation that promotes economic development within its community through 504 Loans. CDCs are certified and regulated by the SBA, and work with SBA and participating lenders (typically banks) to provide financing to small businesses with the goal of facilitating the creation and retention of jobs and local economic development. There are over 260 CDCs nationwide each with a defined Area of Operations covering a specific geographic area. The Area of Operations for most CDCs is the state in which they are incorporated.

    Under 13 CFR 120.825, CDCs are required to be able to sustain their operations continuously with reliable sources of funds, such as income from services rendered and contributions from government or other sponsors. This regulation also provides that any funds generated from loan activity in the 504 Loan Program that remain after payment of staff and overhead expenses (such funds referred to herein as “remaining funds”) must be retained by the CDC as a reserve for future operations or for investment in other local economic development activity in the CDC's Area of Operations. In addition, on March 21, 2014, SBA issued a Final Rule (79 FR 15641) that requires each CDC's Board of Directors to ensure that the CDC establishes and maintains adequate reserves for operations (13 CFR 120.823(d)(9)) and invests in economic development in each State in its Area of Operations where the CDC has outstanding 504 Loans (13 CFR 120.823(d)(10)). Accordingly, in reading 13 CFR 120.823(d)(9) and (10) and 120.825 together, each CDC's Board of Directors must ensure that any remaining funds are either retained as a reserve or invested in the CDC's community, but the current rules do not require the CDC to retain or invest any specific amounts or percentages.

    CDCs have requested that SBA provide guidance on the acceptable types and amounts of investments that should apply to the remaining funds. To address the issue raised by the CDCs, SBA is considering whether to issue a future Proposed Rulemaking that would require CDCs to set aside a certain amount of their revenues for investing in other local economic development activities. SBA is also considering whether the rulemaking should address minimum and/or maximum requirements with respect to the size of the reserve that a CDC retains for its future operations. As stated above, 13 CFR 120.825 requires a CDC “to be able to sustain its operations continuously, with reliable sources of funds,” and a minimum reserve requirement would assist CDCs in complying with this provision. Excessive reserves, however, could limit the amount a CDC would have available for investing in local economic development activities. To develop a proposed rule to address these issues, SBA needs additional information and invites interested parties to provide it by responding to the questions set forth below.

    Finally, SBA is considering providing guidance, through an agency directive (e.g., Standard Operating Procedure, Procedural or Policy Notice), on what constitutes acceptable types of investment in other local economic development activities under 13 CFR 120.825, and is soliciting comments on how to define investments in economic development activity.

    II. Comments Requested

    To assist SBA in addressing the above issues, SBA requests comments from interested parties on the following questions:

    1. What percentage of the CDC's 504 Loan Program revenues do remaining funds typically represent at the end of the CDC's fiscal year?

    2. Should SBA require CDCs to use a certain amount or percentage of their remaining funds to invest in other local economic development activity in the CDC's Area of Operations? Please provide reasons for your response.

    3. If the answer to question 2 is yes, how should the amount required to be invested in other local economic development activity in the CDC's Area of Operations be calculated? Some possibilities could include a percentage of the original loan amount of the CDC's 504 portfolio, a percentage of the current outstanding loan amount of the CDC's 504 portfolio, a percentage of the annual fees received by the CDC as a result of its 504 lending, or a percentage of the CDC's remaining funds. Should the percentage vary depending upon the dollar value of the CDC's portfolio or other factors? If so, describe how the percentage should vary and upon what factors.

    4. Should SBA require CDCs to retain a minimum amount as a reserve for future operations if there are any remaining funds? If not, why not?

    5. If the answer to question 4 is yes, how should the amount of a CDC's required reserve be calculated? Some possibilities could include a percentage of the original loan amount of the CDC's 504 portfolio, a percentage of the current outstanding loan amount of the CDC's 504 portfolio, a percentage of the annual fees received by the CDC as a result of its 504 lending, or a percentage of the CDC's remaining funds. Another approach would be to calculate the required reserve as a dollar amount equal to at least six months, but no more than 12 months, of staff and overhead expenses of the CDC.

    6. Should SBA limit the amount that CDCs may retain as a reserve for future operations? If not, why not? If yes, what would be a reasonable maximum amount to allow as a reserve?

    7. Should a CDC be able to decide that the reserve option would be a more prudent use of its remaining funds than economic development investments to ensure that it has the ability to “sustain its operations continuously”? Why or why not?

    8. Should SBA require CDCs to first apply any remaining funds to the reserve for future operations before using any remaining funds for investments? Please provide reasons for your response.

    9. What requirements, if any, should apply to a CDC's remaining funds if it voluntarily decertifies or is removed from the 504 Loan Program? Should the CDC be required to invest these funds in local economic development activities prior to decertification or removal?

    10. What types of economic development activities should be included in the definition of “acceptable investments in economic development”? Are there any activities that should not be included in the definition? Examples of such acceptable investments in economic development could include loans, grants or other forms of direct financial support that are issued by the CDC for: (1) Other federal, state or local lending programs, such as microlending or revolving loan funds; (2) Small Business Development Centers; (3) business incubators; (4) industrial development; and (5) other non-profit economic development entities. Should the definition include business or technical procurement assistance provided by the CDC or paid for by the CDC?

    Interested parties are invited to provide any other comments that they may have relating to the issues described in this Advance Notice of Proposed Rulemaking. We ask that you provide a brief justification for any suggested changes.

    Dated: January 7, 2016. Maria Contreras-Sweet, Administrator.
    [FR Doc. 2016-00731 Filed 1-14-16; 8:45 am] BILLING CODE 8025-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2134; Directorate Identifier 2015-CE-012-AD] RIN 2120-AA64 Airworthiness Directives; B/E Aerospace Protective Breathing Equipment Part Number 119003-11 AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.

    SUMMARY:

    We are revising an earlier proposed airworthiness directive (AD) for certain B/E Aerospace protective breathing equipment (PBE) that is installed on airplanes. The NPRM proposed inspecting the PBE to determine if the pouch has the proper vacuum seal and replacing if necessary. The NPRM was prompted by reports of a compromise in the vacuum seal of the pouch that contains the PBE. This action revises the NPRM by requiring replacement of the PBE following newly issued service information regardless of inspection results. We are proposing this supplemental NPRM (SNPRM) to correct the unsafe condition on these products. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.

    DATES:

    We must receive comments on this SNPRM by February 29, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this proposed rule, contact B/E Aerospace, Inc., Commercial Aircraft Products Group, 10800 Pflumm Road, Lenexa, Kansas 66215; telephone: (913) 338-9800; fax: (913) 338-8419; Internet: www.beaerospace.com. You may review this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2134; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    David Enns, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 S. Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4147; fax: (316) 946-4107; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-2134; Directorate Identifier 2015-CE-012-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain B/E Aerospace protective breathing equipment (PBE) that is installed on airplanes. The NPRM published in the Federal Register on June 16, 2015 (80 FR 34330). The NPRM proposed to require inspecting the PBE to determine if the pouch has the proper vacuum seal and replacing if necessary.

    Actions Since Previous NPRM Was Issued

    Since we issued the NPRM (80 FR 34330, June 16, 2015), further investigation into the fire of the PBE, part number (P/N) 119003-11, found that the ignitor candles from the PBE units that caught fire had a breach of the filter in the candle assembly. The breach of the filter in the candle assembly allowed hot particles from the igniter candle to enter the oxygen rich environment of the PBE hood, which could cause a fire. All ignitor candles that were examined after fire events showed a breach in the filter. Due to the complexities involved with the chemical reaction within the candle, a definitive cause for the breached filters has not been identified. B/E Aerospace PBE, P/N 119003-21, contains a stainless steel mesh in the outlet path of the igniter candle. It has been established that the installation of the stainless steel mesh will prevent hot particles from entering the PBE hood as a result of a breached filter. Also, it was initially believed that the fire events occurred only with PBEs that had compromised vacuum sealed pouches. Two recent events occurred with PBEs that were reported by the operators to be in serviceable conditions, although the FAA and PBE manufacturer could not verify the condition of the pouch or PBE before the event. Therefore, we can no longer conclude that a PBE, P/N 119003-11, with an intact vacuum seal will prevent the possibility of spark and fire.

    This condition, if not corrected, could result in the PBE catching fire.

    Comments

    We gave the public the opportunity to comment on the NPRM (80 FR 34330, June 16, 2015). The following presents the comments received on the NPRM (80 FR 34330, June 16, 2015) and the FAA's response to each comment.

    Request To Change Cost of Compliance Section

    B/E Aerospace, Inc. requested that the labor cost stated for doing the inspection be changed from .5 work-hour to .1 work-hour.

    The commenter stated that the manpower specified in the related service bulletin for doing the inspection is 1 minute for 1 person. By comparison, the labor cost stated in the NPRM is .5 work-hour. The commenter believes that 0.5 work-hour is unreasonably long based on experience with the PBE. The commenter also stated that as a consequence, this aspect of the NPRM incorrectly suggests a substantial burden on the industry given the number of PBE units requiring the inspection.

    The commenter requested that the labor cost for doing the inspection be changed to be consistent with the related service information.

    We partially agree with the commenter. Even though we agree that it may take less than .5 work-hour to inspect the PBE, it is FAA practice to present labor cost in .5 work-hour increments. We have not changed this proposed AD based on this comment.

    Request To Change Applicability

    Airbus stated that the Applicability section should also include PBE, P/N 119003-21, all FAA-approved PBEs.

    The commenter stated that the candle in PBE, P/N 119003-21, is identical to the one in PBE, P/N 119003-11, and the abnormal behavior of the candle is also possible on the PBE, P/N 119003-21. The remaining effects of a candle malfunction from a PBE, P/N 119003-21, are still not sufficiently known, e.g. functional aspects, heat, or generation of noxious gases. A compromised seal could also lead to a malfunction of a PBE, P/N 119003-21, or other FAA-approved PBEs as well.

    The commenter requested that the inspections also apply to PBE, P/N 119003-21, and all other FAA-approved PBEs as well.

    We do not agree with the commenter. Our investigation revealed that the cause of the unsafe condition has been limited to PBE, P/N 119003-11. The manufacturer has tested PBE, P/N 119003-21, with candle assemblies that had a breach in the filter. The PBE, P/N 119003-21, has been shown to stop hot particles from entering the hood and causing a fire. Due to additional testing and investigation, this proposed AD now requires replacing the PBE, P/N 119003-11, with a PBE, P/N 119003-21, or other FAA-approved PBE. We are still allowing inspecting the PBE, P/N 119003-11, until the required replacement time.

    We have not changed this proposed AD based on this comment.

    Request To Include Allowance for Minimum Equipment List (MEL) Relief

    United Airlines requested incorporating existing MEL procedures into the AD.

    The commenter stated that the proposed AD requires replacing a PBE that has a compromised vacuum seal before further flight. The commenter requested a revision to the AD to allow airplane operation with a minimum equipment list (MEL).

    We agree with the commenter. An MEL is intended to permit operation with inoperative instruments or equipment for a period of time until repairs can be done. Repairs must be done at the earliest opportunity. To maintain an acceptable level of safety and reliability, the MEL establishes limitations on the duration of and conditions for operation with inoperative equipment.

    We have changed this proposed AD based on this comment.

    Related Service Information Under 1 CFR Part 51

    We reviewed B/E Aerospace Service Bulletin No. 119003-35-011, Rev. 000, dated February 4, 2015, and Service Bulletin 119003-35-009, Rev. 009, dated November 9, 2015. The B/E Aerospace Service Bulletin No. 119003-35-011, Rev. 000, dated February 4, 2015, describes procedures for inspecting PBE, P/N 119003-11, to determine if the vacuum seal of the pouch containing the PBE is compromised. B/E Aerospace Service Bulletin 119003-35-009, Rev. 009, dated November 9, 2015, describes procedures for replacing PBE, P/N 119003-11, with P/N 119003-21. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this SNPRM.

    FAA's Determination

    We are proposing this SNPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the NPRM (80 FR 34330, June 16, 2015). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

    Proposed Requirements of This SNPRM

    This SNPRM would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this SNPRM and the Service Information.

    Differences Between This SNPRM and the Service Information

    B/E Aerospace Service Bulletin No. 119003-35-011, Rev. 000, dated February 4, 2015, applies to all PBE with P/N 119003-11 and P/N 119003-21. We have determined that this proposed AD would apply only to a PBE with P/N 119003-11 with regard to the inspection requirement of paragraph (g) of this proposed AD. B/E Aerospace Service Bulletin 119003-35-009, Rev. 009, dated November 9, 2015, includes instructions for disposal. In this proposed AD, we are requiring only the replacement action.

    Costs of Compliance

    We estimate that this proposed AD affects 9,000 products installed on airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspecting the pouch containing the PBE for proper vacuum seal .5 work-hour × $85 per hour = $42.50 Not applicable $42.50 $382,500 Replace the PBE P/N 119003-11 with a PBE P/N 119003-21 .5 work-hour × $85 per hour = $42.50 $1,510 1,552.50 13,972,500
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): B/E Aerospace: Docket No. FAA-2015-2134; Directorate Identifier 2015-CE-012-AD. (a) Comments Due Date

    We must receive comments by February 29, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to B/E Aerospace Protective Breathing Equipment (PBE), part number (P/N) 119003-11, that is installed on airplanes.

    (d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 35; Oxygen.

    (e) Unsafe Condition

    This AD was prompted by a report of a PBE, P/N 119003-11, catching fire upon activation by a crewmember. We are issuing this AD to correct the unsafe condition on these products.

    (f) Compliance

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

    (g) Inspection

    Within 3 months after the effective date of this AD, while still in the stowage box, physically inspect the PBE pouch to determine if it has an intact vacuum seal. Do this inspection following paragraph III.A.1. of the Accomplishment Instructions in B/E Aerospace Service Bulletin No. 119003-35-011. Rev. 000, dated February 4, 2015.

    (h) Replacement

    (1) If a PBE pouch is found that does not have an intact vacuum seal during the inspection required in paragraph (g) of this AD: Before further flight or following existing minimum equipment list (MEL) procedures, replace the PBE with a PBE, P/N 119003-21, following paragraphs III.C., III.D.(4), III.D.(6), and III.D.(7) of the Accomplishment Instructions in B/E Aerospace Service Bulletin No. 119003-35-009, Rev. 000, dated November 9, 2015, or replace it with another FAA-approved serviceable PBE.

    (2) If a PBE pouch is found during the inspection required in paragraph (g) of this AD where the vacuum seal is intact: Within 18 months after the effective date of this AD, remove PBE, P/N 119003-11, and replace the PBE with PBE, P/N 119003-21, following paragraphs III.C., III.D.(4), III.D.(6), and III.D.(7) of the Accomplishment Instructions in B/E Aerospace Service Bulletin No. 119003-35-009, Rev. 000, dated November 9, 2015, or replace it with another FAA-approved serviceable PBE.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (j) Related Information

    (1) For more information about this AD, contact David Enns, Aerospace Engineer, Wichita ACO, FAA, 1801 S. Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946-4147; fax: (316) 946-4107; email: [email protected]

    (2) For service information identified in this AD, contact B/E Aerospace, Inc., 10800 Pflumm Road, Commercial Aircraft Products Group, Lenexa, Kansas 66215; telephone: (913) 338-9800; fax: (913) 338-8419; Internet: www.beaerospace.com. You may review this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Issued in Kansas City, Missouri, on January 6, 2016. Kelly Broadway, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-00374 Filed 1-14-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-0068; Directorate Identifier 2015-CE-037-AD] RIN 2120-AA64 Airworthiness Directives; SOCATA Airplanes AGENCY:

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

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for SOCATA Models MS 880B, MS 885, MS 892A-150, MS 892E-150, MS 893A, MS 893E, MS 894A, MS 894E, Rallye 100S, Rallye 150ST, Rallye 150T, Rallye 235E, and Rallye 235C airplanes that would supersede AD 92-06-10. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as fatigue failure of the nose landing gear wheel axle. We are issuing this proposed AD to require actions to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 29, 2016.

    ADDRESSES:

    You may send comments by any of the following methods:

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

    Fax: (202) 493-2251.

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

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

    For service information identified in this proposed AD, contact SOCATA, Direction des services, 65921 Tarbes Cedex 9, France; phone: +33 (0) 5 62 41 73 00; fax: +33 (0) 5 62 41 76 54; email: [email protected]; Internet: http://www.tbm.aero/. For the United States, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm. You may review copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-0068; Directorate Identifier 2015-CE-037-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    On February 25, 1992, we issued AD 92-06-10, Amendment 39-8190 (57 FR 8063; March 6, 1992) (“92-06-10”). That AD required actions intended to address an unsafe condition on SOCATA Models MS 880B, MS 885, MS 894A, MS 893A, MS 892A-150, MS 892E-150, MS 893E, MS 894E, Rallye 100S, Rallye 150T, Rallye 150ST, Rallye 235E, and Rallye 235C airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

    Since we issued AD 92-06-10, new findings led to an adjustment of the inspection intervals.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2015-0203, dated October 7, 2015 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

    A nose landing gear (NLG) wheel axle rupture occurred in service. The results of the technical investigation revealed that this failure was due to premature wear.

    This condition, if not detected and corrected, could lead to cracks in the axle and detachment of axle and wheel, possibly resulting in failure of the NLG with consequent damage to the aeroplane and injury to occupants.

    To address this potential unsafe condition, DGAC France issued AD 91-163(A) (later revised twice) to require repetitive detailed inspections (DET) of the NLG wheel axle and replacement of the NLG wheel axle attachment screws in accordance with the instructions of SOCATA Service Bulletin (SB) 150-32.

    Since DGAC France AD 91-163(A)R2 was issued, new findings led to an adjustment of the inspection interval. Consequently, SOCATA issued SB 150-32, now at Revision 3.

    For the reasons described above, this new AD retains the requirements of the DGAC France AD 91-163(A)R2, which is superseded, but requires these actions to be accomplished within reduced intervals.

    You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0068. Related Service Information Under 1 CFR Part 51

    SOCATA has issued Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015. The service bulletin describes procedures for inspection of the nose gear wheel axle. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    FAA's Determination and Requirements of the Proposed AD

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

    Costs of Compliance

    We estimate that this proposed AD will affect 77 products of U.S. registry. We also estimate that it would take about 10 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $500 per product.

    Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $103,950, or $1,350 per product.

    In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $1,450, for a cost of $1,705 per product. We have no way of determining the number of products that may need these actions.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Amendment 39-8190 (57 FR 8063; March 6, 1992), and adding the following new AD: SOCATA: Docket No. FAA-2016-0068; Directorate Identifier 2015-CE-037-AD. (a) Comments Due Date

    We must receive comments by February 29, 2016.

    (b) Affected ADs

    This AD supersedes AD 92-06-10 Amendment 39-8190 (57 FR 8063; March 6, 1992) (“AD 92-06-10”).

    (c) Applicability

    This AD applies to SOCATA Models MS 880B, MS 885, MS 892A-150, MS 892E-150, MS 893A, MS 893E, MS 894A, MS 894E, Rallye 100S, Rallye 150ST, Rallye 150T, Rallye 235E, and Rallye 235C airplanes, all serial numbers, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 32: Landing Gear.

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as fatigue failure of the nose landing gear wheel axle. We are issuing this proposed AD to detect and correct chafing and cracking of the nose gear wheel axle, which could lead to failure of the nose landing gear with consequent damage to the airplane and/or occupants.

    (f) Actions and Compliance

    Unless already done, do the following actions in paragraphs (f)(1) through (f)(5) of this AD, including all subparagraphs.

    (1) Do a detailed visual inspection of the intersection between the axle radius and the nose landing gear fork area for chafing at whichever occurs later in paragraph (f)(1)(i) or (f)(1)(ii) of this AD and repetitively thereafter at intervals not to exceed 200 hours time-in-service (TIS) following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 200 hours TIS since the airplane's first flight or 200 hours TIS since the last inspection required by AD 92-06-10; or

    (ii) Within the next 50 hours TIS after the effective date of this AD or within 500 hours TIS since the last inspection required by AD 92-06-10, whichever occurs first.

    (2) Do a dye penetrant inspection on the nose wheel axle for cracks, distortion, and nicks or wear at whichever occurs later in paragraph (f)(2)(i) or (f)(2)(ii) of this AD and repetitively thereafter at intervals not to exceed 200 hours time-in-service (TIS) following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 200 hours TIS since the airplane's first flight or 200 hours TIS since the last inspection required by AD 92-06-10; or

    (ii) Within the next 50 hours TIS after the effective date of this AD or within 500 hours TIS since the last inspection required by AD 92-06-10, whichever occurs first.

    (3) If any cracks or damage is found in any inspection required by paragraphs (f)(1) or (f)(2) in this AD, contact SOCATA for FAA-approved repair or replacement instructions approved specifically for this AD and, before further flight, implement those instructions. Use the contact information found in paragraph (i) of this AD to contact SOCATA.

    (4) Replace the nose landing gear wheel axle attachment screws with new screws at whichever occurs later in paragraph (f)(4)(i) or (f)(4)(ii) of this AD following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 2,000 hours TIS since airplane's first flight or 2,000 hours TIS since last nose landing gear wheel attachment screw replacement with new screws; or

    (ii) Within 50 hours TIS since April 17, 1992 (the effective date retained from AD 92-06-10).

    (5) After the effective date of this AD, a used nose landing gear or a used nose landing gear wheel axle may be installed provided it has been inspected and found free of cracks and/or damage and the nose landing gear wheel axle attachment screws have been replaced with new screws as specified in paragraphs (f)(1), (f)(2), and (f)(4) of this AD.

    (g) Credit for Actions Accomplished in Accordance With Previous Service Information

    This AD allows credit for the inspections required in paragraph (f)(1) and (f)(2) of this AD, if done before the effective date of this AD, following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 2, dated January 1994.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (i) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD 2015-0203, dated October 7, 2015; and Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 2, dated January 1994, for related information. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0068. For service information related to this AD, contact SOCATA, Direction des services, 65921 Tarbes Cedex 9, France; phone: +33 (0) 5 62 41 73 00; fax: +33 (0) 5 62 41 76 54; email: [email protected]; Internet: http://www.tbm.aero/. For the United States, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm. You may review copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Issued in Kansas City, Missouri, on January 5, 2016. Kelly Broadway, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-00320 Filed 1-14-16; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2012-959; FRL-9941-14-Region 9] Revisions to the California State Implementation Plan, Sacramento Metropolitan Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing a partial approval and partial disapproval of revisions to the Sacramento Metropolitan (Metro) Air Quality Management District (SMAQMD or District) portion of the California State Implementation Plan (SIP). These revisions concern the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). We are proposing action on a local SIP revision under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by February 16, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2012-959 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Tong, EPA Region IX, (415) 947-4122, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. The State's Submittal A. What documents did the State submit? B. Are there other versions of these documents? C. What is the purpose of the RACT SIP submissions? II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the RACT SIP submissions? B. Do the RACT SIP submissions meet the evaluation criteria? C. What are the RACT deficiencies? D. EPA Recommendations To Further Improve the RACT SIP. E. Proposed Action and Public Comment III. Statutory and Executive Order Reviews I. The State's Submittal A. What documents did the State submit?

    Table 1 lists the documents addressed by this proposal with the dates that they were adopted by the local air agency and submitted to the EPA by the California Air Resources Board (CARB).

    Table 1—Submitted Documents Local agency Document Adopted Submitted SMAQMD Reasonably Available Control Technology (RACT) as Applicable to the 8-Hour Ozone Standard, dated October 26, 2006 (“2006 RACT SIP”) 10/26/06 07/11/07 SMAQMD Reasonably Available Control Technology (RACT) Update as Applicable to the 8-Hour Ozone Standard, dated October 23, 2008 (“Updated RACT SIP”) 10/23/08 1/21/09

    The 2006 RACT SIP and Updated RACT SIP became complete by operation of law under CAA section 110(k)(1)(B) on January 11, 2008 and July 21, 2009, respectively.

    B. Are there other versions of these documents?

    There are no previous versions of these documents in the SMAQMD portion of the California SIP.

    C. What is the purpose of the RACT SIP submissions?

    Volatile organic compounds (VOCs) and nitrogen oxides (NOX) help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC and NOX emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as moderate or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and any major stationary source of VOCs or NOX. The Sacramento Metro area is subject to this requirement as it is designated and classified as a severe ozone nonattainment area for the 1997 8-hour ozone NAAQS. 40 CFR 81.305; 69 FR 23858 at 23887 (April 30, 2004) (final rule designating and classifying Sacramento Metro area as serious nonattainment for the 1997 8-hour ozone NAAQS); 75 FR 24409 (May 5, 2010) (final rule reclassifying the Sacramento Metro area as severe-15 nonattainment for the 1997 8-hour ozone NAAQS). Therefore, the SMAQMD must, at a minimum, adopt RACT-level controls for all sources covered by a CTG document and for all major non-CTG sources of VOCs or NOX within the Sacramento Metro nonattainment area. Any stationary source that emits or has a potential to emit at least 25 tons per year (tpy) of VOCs or NOX is a major stationary source in a severe ozone nonattainment area (CAA section 182(d) and (f)).

    Section IV.G. of the preamble to the EPA's final rule to implement the 1997 8-hour ozone NAAQS (70 FR 71612, November 29, 2005) discusses RACT requirements. It states in part that where a RACT SIP is required, States implementing the 8-hour standard generally must assure that RACT is met either through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes or through a new RACT determination. The submitted documents provide SMAQMD's analyses of its compliance with the CAA section 182 RACT requirements for the 1997 8-hour ozone NAAQS. The EPA's technical support documents (TSDs)(“2006 RACT SIP TSD” and “RACT SIP Update TSD”) have more information about the District's submissions and the EPA's evaluations thereof.

    II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the RACT SIP submissions?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). Generally, SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of NOX or VOCs in ozone nonattainment areas classified as moderate or above (see CAA section 182(b)(2)). The SMAQMD regulates a severe ozone nonattainment area (see 40 CFR 81.305), so the District's rules must implement RACT.

    Guidance and policy documents that we use to evaluate enforceability and CAA section 182 RACT SIPs include the following:

    1. “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005).

    2. “State Implementation Plans, General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498; April 16, 1992).

    3. Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations: Clarification to Appendix D of November 24, 1987 Federal Register, May 25, 1988, Revised January 11, 1990, U.S. EPA, Air Quality Management Division, Office of Air Quality Planning and Standards (“The Blue Book”).

    4. Guidance Document for Correcting Common VOC and Other Rule Deficiencies, August 21, 2001, U.S. EPA Region IX (the “Little Bluebook”).

    5. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 55620, November 25, 1992) (“the NOX Supplement”).

    6. RACT SIPs, Letter dated March 9, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) describing Region IX's understanding of what constitutes a minimally acceptable RACT SIP.

    7. Memorandum from William T. Harnett to Regional Air Division Directors, (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers”.

    8. RACT SIPs, Letter dated April 4, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) listing EPA's current CTGs, ACTs, and other documents which may help to establish RACT.

    With respect to major stationary sources, because the Sacramento Metro nonattainment area was classified as “serious” nonattainment for the 1997 8-hour ozone NAAQS at the time that California submitted the 2006 RACT SIP to the EPA, the EPA evaluated this submission in accordance with the 50 ton per year (tpy) threshold for “major stationary sources” of VOC or NOX emissions in serious ozone nonattainment areas. CAA section 182(c) and (f). The SMAQMD's Updated RACT SIP contains the District's RACT evaluation for additional major stationary sources based upon the 25 tpy major source threshold in severe ozone nonattainment areas (see CAA section 182(d) and (f)), which the EPA evaluated for compliance with the additional RACT requirements that became applicable following the EPA's reclassification of the Sacramento Metro area from “serious” to “severe” nonattainment for the 1997 8-hour ozone NAAQS. See 69 FR 23858 at 23887 (April 30, 2004) (final rule designating and classifying the Sacramento Metro area as serious nonattainment for the 1997 8-hour ozone NAAQS) and 75 FR 24409 (May 5, 2010) (final rule reclassifying the Sacramento Metro area as severe-15 nonattainment for the 1997 8-hour ozone NAAQS).

    B. Do the RACT SIP submissions meet the evaluation criteria?

    The 2006 RACT SIP and Updated RACT SIP provide the District's conclusion that the applicable SIP for the Sacramento Metro area satisfies CAA section 182 RACT requirements for the 1997 8-hour ozone NAAQS. This conclusion is based on the District's analyses of SIP-approved requirements that apply to: (1) CTG source categories; (2) certain non-CTG source categories or emission units located at major stationary sources; and (3) all major stationary sources of VOC or NOX emissions. See 2006 RACT SIP Staff Report at Appendices A-D and Updated RACT SIP Staff Report at Appendices A-B. SMAQMD's 2006 RACT SIP Staff Report and Updated RACT SIP Staff Report include detailed analyses of its SIP rules including discussions of how those rules continue to implement RACT for the 1997 8-hour ozone NAAQS.

    First, with respect to CTG source categories, Table 1 of the 2006 RACT SIP Staff Report and Table 1 of the Updated RACT SIP Staff Report lists all CTG source categories and match those CTG categories with corresponding District rules which implement RACT. SMAQMD also searched its database of permitted sources and telephone directories for potential sources belonging to those CTG categories for which the District did not have rules. Based on these evaluations, the District concluded that there were no CTG source categories for which the District had sources but no applicable RACT requirement. See 2006 RACT SIP Staff Report at 2 and Updated RACT SIP Staff Report at 3. Our review of CARB's emissions inventory database for potential CTG sources did not uncover any CTG source categories missing from the District's analyses.

    Where there are no existing sources covered by a particular CTG document, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. Table 2 below lists all of the source categories for which SMAQMD's 2006 RACT SIP and Updated RACT SIP provide negative declarations.

    Table 2—SMAQMD Negative Declarations CTG Source category CTG Document title Aerospace Coating EPA-453/R-97-004 and 59 FR 29216 (6/06/94)—Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations. Automobile Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Dry Cleaning (Petroleum Solvent) EPA-450/3-82-009—Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners. Graphic Arts (Rotogravure) EPA-450/2-78-033—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume VIII: Graphic Arts—Rotogravure and Flexography. Large Appliance Coating EPA-450/2-77-034—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume V: Surface Coating of Large Appliances.
  • EPA-453/R-07-004—Control Techniques Guidelines for Large Appliance Coatings.
  • Magnetic Wire Coating EPA-450/2-77-033—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume IV: Surface Coating for Insulation of Magnetic Wire. Metal Coil Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Natural Gas/Gasoline Processing EPA-450/2-83-007—Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. Paper and Fabric Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. Resin Manufacturing (High-Density Polyethylene, Polypropylene, and Polystyrene) EPA-450/3-83-008—Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. Refineries EPA-450/2-77-025—Control of Refinery Vacuum Producing Systems, Wastewater Separators and Process Unit Turnarounds.
  • EPA-450/2-78-036—Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment.
  • Rubber Tire Manufacturing EPA-450/2-78-030—Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. Ship Coating 61 FR 44050—Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface Coating). Wood Coating (Flat Wood Paneling) EPA-450/2-78-032—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume VII: Factory Surface Coating of Flat Wood Paneling.
  • EPA-453/R06-004—Control Techniques Guidelines for Flat Wood Paneling Coatings.
  • Paper, Film and Foil EPA-453/R-07-004—Control Techniques Guidelines for Paper, Film, and Foil Coatings. Source: 2006 RACT SIP at 1-2 and Updated RACT SIP at 2-3.

    Subsequent to submitting its 2006 RACT SIP and Updated RACT SIP, SMAQMD submitted, and the EPA approved, negative declarations for the following CTG source categories: Coating Operations at Aerospace Manufacturing and Rework Operations (77 FR 23130, April 18, 2012), Fiberglass Boat Manufacturing Materials (77 FR 63743, October 17, 2012), and Automobile and Light-Duty Truck Assembly Coatings (77 FR 63743, October 17, 2012).

    With the exception of the Pharmaceuticals Manufacturing CTG and the municipal landfill category, we are proposing to find that SMAQMD's 2006 RACT SIP and Updated RACT SIP, including the above negative declarations, largely demonstrate that the applicable SIP rules for the CTG source categories operating within the Sacramento Metro area satisfy RACT for the 1997 8-hour ozone NAAQS. We will discuss the deficiencies with Rule 455, Pharmaceuticals Manufacturing and the municipal landfill category, in the next section.

    Our 2006 RACT SIP TSD provides a more detailed discussion of the EPA's rationale, including an overview of the District's analyses which were made available for public comment during the District's rulemaking process, together with recommendations for rule improvements.

    Second, with respect to certain non-CTG source categories located at facilities that are major stationary sources of VOC or NOX emissions, the 2006 RACT SIP Staff Report contains: (1) A summary of recommendations or requirements contained in applicable Alternative Control Technique (ACT) documents, federal and state RACT guidance documents, and/or regulations; (2) a summary of the applicable District rules; and (3) an evaluation of the District's rules in light of the applicable RACT guidance documents and/or regulations. See 2006 RACT SIP Staff Report at Appendix B. Based on these evaluations, SMAQMD concludes that non-CTG emission sources located within these VOC or NOX major stationary sources are generally covered by SIP-approved rules that satisfy RACT for the 1997 8-hour ozone NAAQS. We are proposing to find that the SMAQMD's 2006 RACT SIP and Updated RACT SIP submissions adequately demonstrate that the applicable SIP rules for these non-CTG sources located at major stationary sources satisfy RACT for the 1997 8-hour ozone NAAQS.

    Our 2006 RACT SIP TSD provides a more detailed discussion of the EPA's rationale for these proposals, including an overview of the District's analyses which were made available for public comment during the District's rulemaking process.

    Finally, with respect to all other major stationary sources of VOC or NOX emissions, the 2006 RACT SIP and Updated RACT SIP identify the applicable SIP rules or SIP-approved permit provisions that the EPA has previously approved as satisfying RACT. Our review of CARB's emissions inventory database did not uncover any additional major stationary sources that were missed in the District's analyses. Based on the EPA's review of the District's evaluations, we propose to conclude that with the exception of the Pharmaceuticals Manufacturing rule and municipal waste landfill category, all of the identified SIP rules and permit conditions satisfy RACT for the 1997 8-hour ozone NAAQS.

    C. What are the RACT deficiencies?

    Rule 455, Pharmaceuticals Manufacturing, (amended 11/29/83 and 9/5/96) lacks test methods, recordkeeping, and monitoring requirements which are necessary to support enforcement of the rule. See CAA section 110(a). These are deficiencies listed in the EPA's “Blue Book” (Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, May 25, 1988, revised January 11, 1990) and should be corrected.

    The Kiefer landfill is a major source of VOCs located within the Sacramento Metro area. SMAQMD Rule 485, Municipal Landfill Gas, exempts landfills covered under the NSPS, 40 CFR part 60 Subpart WWW, including Kiefer Landfill. Although the District has been delegated authority to implement and enforce the NSPS, as well as the relevant NESHAP (40 CFR part 63 Subpart AAAA), those requirements have not been incorporated into the SIP. The District should amend the rule or submit relevant portions of the facility's permit for SIP approval.

    D. EPA Recommendations To Further Improve the RACT SIP

    Our TSDs for the 2006 RACT SIP and Updated RACT SIP provide additional recommendations for future rule improvements.

    E. Proposed Action and Public Comment

    For the reasons discussed above and explained more fully in our 2006 RACT SIP TSD and Updated RACT SIP TSD, the EPA proposes to partially approve and partially disapprove SMAQMD's 2006 RACT SIP and Updated RACT SIP. Under CAA section 110(k)(3), we propose to approve the 2006 RACT SIP and Updated RACT SIP, with the exception of Rule 455, Pharmaceutical Manufacturing and the municipal waste landfill category, as satisfying the RACT requirements of CAA section 182(b)(2) and (f).

    Also under CAA section 110(k)(3), we propose to disapprove those elements of the 2006 RACT SIP and Updated RACT SIP that pertain to Rule 455 and the municipal waste landfill category, which the EPA has determined do not meet all of the applicable CAA requirements. We will not finalize this partial disapproval, however, if we fully approve revisions to Rule 455 and the municipal waste landfill category as satisfying RACT before finalizing action on the 2006 RACT SIP and Updated RACT SIP.

    The EPA is committed to working with CARB and the District to resolve the Rule 455 and municipal waste landfill RACT deficiencies identified in this proposed action.

    If finalized, this partial disapproval would trigger the 2-year clock for the federal implementation plan (FIP) requirement under section 110(c).

    In addition, final disapproval would trigger sanctions under CAA section 179 and 40 CFR 52.31 unless the EPA approves subsequent SIP revisions that correct the RACT SIP deficiencies within 18 months of the effective date of the final action.

    We will accept comments from the public on the proposed partial approval and partial disapproval for the next 30 days.

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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.

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 11, 2015. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2016-00571 Filed 1-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0048; FRL-9940-95-Region 9] Clean Air Plans; 1-Hour and 1997 8-Hour Ozone Nonattainment Area Requirements; San Joaquin Valley, California AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of California to provide for attainment of the 1-hour ozone national ambient air quality standard in the San Joaquin Valley, California ozone nonattainment area and to meet other Clean Air Act requirements. Specifically, with respect to the 1-hour ozone standard, the EPA is proposing to find the emissions inventories to be acceptable and to approve the reasonably available control measures demonstration, the rate of progress demonstrations, the attainment demonstration, contingency measures for failure to meet rate of progress milestones, the provisions for advanced technology/clean fuels for boilers, and the demonstration that the plan provides sufficient transportation control strategies and measures to offset emissions increases due to increases in motor vehicle activity. For the 1997 8-hour ozone standard, the EPA is proposing to approve the demonstration that the plan provides sufficient transportation control strategies and measures to offset emissions increases due to increases in motor vehicle activity.

    DATES:

    Any comments must arrive by February 16, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R09-OAR-2015-0048, by one of the following methods:

    1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected].

    3. Mail or deliver: John Ungvarsky (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Deliveries are only accepted during the Regional Office's normal hours of operation.

    Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an anonymous access system, and the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the EPA, your email address will be automatically captured and included as part of the public comment. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment.

    Docket: The index to the docket and documents in the docket for this action are generally available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    John Ungvarsky, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 972-3963, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Regulatory Context A. Ozone Standards, SIPs, and Area Designations B. The San Joaquin Valley Nonattainment Area II. CARB's SIP Revision Submittal To Address Remaining 1-Hour and 1997 8-Hour Ozone Requirements in the San Joaquin Valley A. CARB's SIP Submittal B. CAA Procedural Requirements for Adoption and Submittal of SIP Revisions III. Evaluation of the 2013 Ozone Plan A. Emissions Inventories B. Reasonably Available Control Measures Demonstration and Control Strategy C. Rate of Progress Demonstration D. Attainment Demonstration E. Contingency Measures F. Clean Fuels or Advanced Control Technology for Boilers G. Transportation Control Strategies and Transportation Control Measures to Offset Growth in Emissions from Growth in Vehicle Miles Traveled or Number of Vehicle Trips IV. Proposed Action V. Statutory and Executive Order Reviews I. Regulatory Context A. Ozone Standards, SIPs, and Area Designations

    Ground-level ozone is formed when oxides of nitrogen (NOX) and volatile organic compounds (VOC) react in the presence of sunlight.1 These two pollutants, referred to as ozone precursors, are emitted by many types of pollution sources, including on- and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints. Scientific evidence indicates that adverse public health effects occur following exposure to ozone, particularly in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. See “Fact Sheet, Proposal to Revise the National Ambient Air Quality Standards for Ozone,” January 6, 2010 and 75 FR 2938 (January 19, 2010).

    1 California plans sometimes use the term Reactive Organic Gases (ROG) for VOC. These terms are essentially synonymous. For simplicity, we use the term VOC herein to mean either VOC or ROG.

    Under section 109 of the Clean Air Act (CAA), the EPA promulgates national ambient air quality standards (NAAQS or standards) for pervasive air pollutants, such as ozone. In 1979, the EPA established the NAAQS for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period (“1-hour ozone standard”). 44 FR 8202 (February 8, 1979). An area is considered to have attained the 1-hour ozone standard if there are no violations of the standard, as determined in accordance with the regulation codified at 40 CFR 50.9, based on three consecutive calendar years of complete, quality assured and certified monitoring data. A violation occurs when the ambient ozone air quality monitoring data show greater than one (1.0) “expected number” of exceedances per year at any site in the area, when averaged over three consecutive calendar years.2 An exceedance occurs when the maximum hourly ozone concentration during any day exceeds 0.124 ppm. For more information, see “National 1-hour primary and secondary ambient air quality standards for ozone” (40 CFR 50.9) and “Interpretation of the 1-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR part 50, appendix H).

    2 An “expected number” of exceedances is a statistical term that refers to an arithmetic average. An “expected number” of exceedances may be equivalent to the number of observed exceedances plus an increment that accounts for incomplete sampling. See, 40 CFR part 50, appendix H. Because, in this context, the term “exceedances” refers to days (during which the daily maximum hourly ozone concentration exceeded 0.124 ppm), the maximum possible number of exceedances in a given year is 365 (or 366 in a leap year).

    In 1997, the EPA revised the NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period (“1997 8-hour ozone standard”). 62 FR 38856 (July 18, 1997). The EPA determined that the 1997 8-hour standard would be more protective of human health, especially children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma. In 2008, the EPA revised and further strengthened the NAAQS for ozone by setting the acceptable level of ozone in the ambient air at 0.075 ppm, averaged over an 8-hour period (“2008 8-hour ozone standard”). 73 FR 16436 (March 27, 2008). In 2015, the EPA further tightened the 8-hour ozone standard to 0.070 ppm. 80 FR 65292 (October 26, 2015). While both the 1979 1-hour ozone standard and the 1997 8-hour ozone standard have been revoked, certain requirements that had applied under the revoked standards continue to apply under the anti-backsliding provisions of CAA section 172(e).

    Once the EPA has promulgated a NAAQS, states are required to develop and submit plans that provide for the implementation, maintenance, and enforcement of the NAAQS under CAA section 110(a)(1). The content requirements for such plans, which are referred to as state implementation plans (SIPs) are found in CAA section 110(a)(2). Under the Clean Air Act, as amended in 1977, the EPA designated all areas of the country as “attainment,” “nonattainment,” or “unclassifiable” for the various NAAQS depending upon the availability of ambient concentration data and depending upon whether violations of the NAAQS were occurring in a given area. The CAA further requires states with “nonattainment” areas to submit revisions to their SIPs that provide for, among other things, attainment of the relevant standard within certain prescribed periods.

    In California, the California Air Resources Board (CARB) is responsible for adoption and submittal to the EPA of California SIPs and California SIP revisions and is the primary State agency responsible for regulation of mobile sources. Local and regional air pollution control districts are responsible for developing regional air quality plans and for regulation of stationary sources. For the San Joaquin Valley, the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) develops and adopts air quality management plans to address CAA SIP planning requirements applicable to that region. Such plans are then submitted to CARB for adoption and submittal to the EPA as revisions to the California SIP.

    B. The San Joaquin Valley Nonattainment Area

    Under the 1977 CAA Amendments, the EPA designated the San Joaquin Valley Air Basin (“San Joaquin Valley” or “Valley”) as a “nonattainment” area for the photochemical oxidant (later, the 1-hour ozone) NAAQS. 43 FR 8962, at 8972 (March 3, 1978). Initially, eight entire counties comprised the San Joaquin Valley: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and Kern counties. In 2001, however, the EPA approved a request to revise the boundary of the San Joaquin Valley to exclude eastern Kern County. 66 FR 56476 (November 8, 2001). As such, the San Joaquin Valley ozone nonattainment area stretches over 250 miles from north to south, averages a width of 80 miles, and encompasses over 23,000 square miles. It is partially enclosed by the Coast Mountain range to the west, the Tehachapi Mountains to the south, and the Sierra Nevada range to the east. The San Joaquin Valley is one of the nation's leading agricultural areas, and in recent decades, has experienced a high rate of growth in population. From 1990 to 2010, the population in the Valley increased from approximately 2.7 million to 4 million people. For a precise description of the geographic boundaries of the San Joaquin Valley, see 40 CFR 81.305.

    The CAA, as amended in 1977, required states to submit SIP revisions for nonattainment areas that, among other requirements, provided for attainment no later than 1987; however, like many areas of the country, the San Joaquin Valley failed to attain the ozone NAAQS by 1987. In the 1990 CAA Amendments, Congress established a classification system for ozone nonattainment areas under which areas with more severe ozone problems were given a higher classification and more time to attain the standard but were subject to a greater number of, and more stringent, SIP requirements. The classifications include “Marginal,” “Moderate,” “Serious,” “Severe,” and “Extreme.” See CAA section 181(a)(1).

    Under this classification system, the San Joaquin Valley was classified as a “Serious” ozone nonattainment area for the 1-hour ozone standard with an attainment date of no later than November 15, 1999. 56 FR 56694 (November 6, 1991). In response, in 1994, CARB submitted The California Ozone State Implementation Plan (“1994 California Ozone Plan”), a comprehensive ozone plan for the State of California that included a state strategy as well as certain regional ozone plans, such as the regional plan for the San Joaquin Valley. The EPA approved the 1994 California Ozone Plan in 1997. 62 FR 1150 (January 8, 1997).

    In 2001, the EPA found that the San Joaquin Valley had failed to attain the 1-hour ozone standard by the “Serious” area deadline and reclassified the area to “Severe.” 66 FR 56476 (November 8, 2001). In 2004, the EPA granted the State's request to voluntarily reclassify the San Joaquin Valley from “Severe” to “Extreme” for the 1-hour ozone standard and required the state to submit a SIP revision providing for the “Extreme” area SIP elements in CAA section 182(e), which include a demonstration of attainment of the standard as expeditiously as practicable, but no later than November 15, 2010. 69 FR 20550 (April 16, 2004).

    In response, CARB and the District developed and adopted the Extreme Ozone Attainment Demonstration Plan (“2004 Ozone Plan”) for the San Joaquin Valley, and, in 2004, CARB submitted the 2004 Ozone Plan to the EPA as a revision to the California SIP. The 2004 Ozone Plan was supported by certain measures and commitments contained in the state's “2003 State Strategy.” The 2004 Ozone Plan was later amended and clarified, and the EPA approved the plan, as amended and clarified, in 2010. 75 FR 10420 (March 8, 2010).

    Specifically, we approved the following elements of the 2004 Ozone Plan: (1) Rate-of-progress (ROP) demonstration as meeting the requirements of CAA section 172(c)(2) and 182(c)(2) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(4); (2) ROP contingency measures as meeting the requirements of CAA section 172(c)(9) and 182(c)(9); (3) the attainment demonstration as meeting the requirements of 182(c)(2)(A) and 181(a) and 40 CFR 51.905(a)(1)(ii); (4) the attainment contingency measures as meeting the requirements of CAA section 172(c)(9); and (5), along with certain measures contained in the 2003 State Strategy, the demonstration of implementation of reasonably available control measures (RACM)(exclusive of RACT) 3 as meeting the requirements of CAA section 172(c) and 40 CFR 51.905(a)(1)(ii). Id., at 10436-10437. In connection with the control strategy of the attainment demonstration, we approved certain committal measures and aggregate emission reduction commitments made by CARB and the District. Id. We also found that the 2004 Ozone Plan met the following requirements: (1) CAA section 182(e)(3) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(7) for clean fuel/clean technology boilers; and (2) CAA section 182(d)(1)(A) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(11) for transportation control measures (TCMs) sufficient to offset growth in emissions from growth in vehicle-miles-traveled (VMT) or the number of vehicle trips. Lastly, in our approval of the 2004 Ozone Plan, we approved a specific rule, District Rule 9310, related to school buses.

    3 We addressed the SIP requirements related to implementation of reasonably available control technology (RACT) for the 1-hour ozone standard in separately rulemakings. See, e.g., 77 FR 1417 (January 10, 2012)(final partial approval and partial disapproval of the San Joaquin Valley RACT SIP).

    Our approval of the 2004 Ozone Plan was challenged, and the U.S. Court of Appeals for the Ninth Circuit remanded the approval of the plan back to the EPA based on its conclusion that the EPA had not adequately considered and addressed the implications of more recent emissions data in determining that the 2004 Ozone Plan had met all applicable CAA requirements. Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012) (“Sierra Club”).4 In response to the Sierra Club decision, the EPA withdrew its approval of the 2004 Ozone Plan. 77 FR 70376 (November 26, 2012).5 CARB indicated that it intended to withdraw the plan upon EPA's approval withdrawal action, and thus, in the same Federal Register document as the withdrawal of approval, the EPA issued a finding of failure to submit required SIP revisions to provide for attainment of the 1-hour ozone NAAQS in the San Joaquin Valley.

    4 For further background on this court decision, see our proposed rule at 77 FR 58078 (September 19, 2012).

    5 The EPA's March 8, 2010 final rule taking action on the 2004 Ozone Plan also took final approval action on SJVUAPCD Rule 9310 (“School Bus Fleets”). Approval of District Rule 9310 was not affected by the decision in Sierra Club, and thus the EPA did not withdraw its approval of that rule when it withdrew its approval of the rest of the action taken on March 8, 2010. However, the EPA did intend to withdraw approval of all of the elements of the 2004 Ozone Plan but inadvertently failed to withdraw its approval of the 2008 Clarification submitted by CARB in support of the 2004 Ozone Plan. See 40 CFR 52.220(c)(371), and the EPA intends to fix this error by withdrawing that paragraph from 40 CFR 52.220(c) when it takes final action on the 2013 Ozone Plan.

    Meanwhile, as noted above, in 1997, the EPA established an 8-hour ozone standard to replace the 1-hour ozone standard, and in 2004, the EPA designated the San Joaquin Valley as a “Serious” nonattainment area for the 1997 8-hour ozone standard. 69 FR 23858, at 23888-23899 (April 30, 2004). In 2010, the EPA approved a request by CARB to reclassify the San Joaquin Valley as “Extreme” for the 1997 8-hour ozone standard. 75 FR 24409 (May 5, 2010). In 2004, the EPA also established regulations governing the transition from the 1-hour ozone standard to the 1997 8-hour ozone standard, and under these regulations, the 1-hour ozone standard was revoked in most areas of the country, including the San Joaquin Valley, effective June 15, 2005, but the SIP revision requirements that applied at the time of revocation of the standard continue to apply after revocation consistent with the anti-backsliding provisions in section 172(e). This means that, notwithstanding revocation of the 1-hour ozone standard, the San Joaquin Valley remained subject to “Extreme” area requirements for the 1-hour ozone standard and is also subject to the “Extreme” area requirements for the 1997 8-hour ozone standard.

    In 2007, in response to SIP revision requirements for the 1997 8-hour ozone standard, CARB and the District developed and adopted the 2007 Ozone Plan (“2007 Ozone Plan”) and related portions of the 2007 State Strategy and submitted them to the EPA as revisions to the SIP. The 2007 Ozone Plan was revised in 2008 and 2011, and in 2012, the EPA approved the plan, as revised, together with the related portions of the 2007 State Strategy. 77 FR 12652 (March 1, 2012). Our approval of the 2007 Ozone Plan and related portions of the 2007 State Strategy were challenged in the Ninth Circuit. In 2015, the Ninth Circuit upheld the EPA's approval of CARB's and the District's committal measures but rejected the EPA's longstanding interpretation of the CAA as allowing California to take emissions reduction credit for mobile source regulations that the EPA has waived or authorized under CAA section 209 notwithstanding their absence from the federally enforceable California SIP. See Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015) (“Committee for a Better Arvin”). In light of the decision in Committee for a Better Arvin, the EPA has proposed approval as a revision to the California SIP of a number of CARB's mobile source regulations for which preemption has been waived or authorized under CAA section 209. 80 FR 69915 (November 12, 2015).

    As part of the approval of the 2007 Ozone Plan, the EPA approved the demonstration that the plan provides for transportation control strategies (TCS) and TCMs sufficient to offset any growth in emissions from growth in VMT or the number of vehicle trips as meeting the requirements of CAA section 182(d)(1)(A). Id., at 12670.6 In approving the VMT emissions offset demonstration in 2012, the EPA applied its then-longstanding interpretation of the VMT emissions offset requirement in CAA section 182(d)(1)(A), first explained in guidance in the General Preamble to Title I of the CAA (see 57 FR 13498, at 13521-13523, April 16, 1992) (herein referred to as the “General Preamble”), that no transportation control measures are necessary if aggregate motor vehicle emissions are projected to decline each year from the base year of the plan to the attainment year. See 76 FR 57872, at 57889 (September 16, 2011). The EPA approved the plan as meeting the requirements of CAA section 182(d)(1)(A) because the emissions inventories in the 2007 Ozone Plan showed decreases in aggregate year-over-year motor vehicle emissions in the San Joaquin Valley from a base year through the applicable attainment year.

    6 CAA section 182(d)(1)(A), which, in relevant part, requires the state, if subject to its requirements, to “submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area.” Herein, we use “VMT” to refer to vehicle miles traveled, and refer to the related SIP requirement as the “VMT emissions offset requirement.” In addition, we refer to the SIP revision intended to demonstrate compliance with the VMT emissions offset requirement as the “VMT emissions offset demonstration.”

    However, between the time when the EPA's approval of the 2007 Ozone Plan was signed and when it was published in the Federal Register, the EPA's petition for rehearing in a case challenging the EPA's longstanding interpretation of CAA section 182(d)(1)(A) was denied. See Association of Irritated Residents v. EPA, 632 F.3d. 584, at 596-597 (9th Cir. 2011), reprinted as amended on January 27, 2012, 686 F.3d 668, further amended February 13, 2012 (“Association of Irritated Residents”). In the Association of Irritated Residents case, the Court ruled that additional transportation control measures are required whenever vehicle emissions are projected to be higher than they would have been had VMT not increased, even when aggregate vehicle emissions are actually decreasing. In light of the Association of Irritated Residents decision, the EPA withdrew its determination that the 2007 Ozone Plan provided sufficient TCMs to offset the growth in emissions from the growth in VMT in the same Federal Register document as the Agency's withdrawal of the approval of the 2004 Ozone Plan and finding of failure to submit required SIP revisions. 77 FR 70376 (November 26, 2012).

    In 2013, in response to the EPA's withdrawal of approval of the 2004 Ozone Plan and the VMT emission offset demonstration for the 1997 8-hour ozone standard and the related finding of failure to submit, CARB and the District prepared, adopted, and submitted the 2013 Plan for the Revoked 1-Hour Ozone Standard (“2013 Ozone Plan”). The 2013 Ozone Plan addresses the various 1-hour ozone SIP elements for which the EPA had withdrawn approval (i.e., RACM, ROP and attainment demonstrations, ROP and attainment contingency measures, clean fuels/clean technology boilers, and VMT emissions offset demonstration) and also addresses the VMT emissions offset requirement for the 1997 8-hour ozone standard. The 2013 Ozone Plan builds upon the regulatory foundation built by previous San Joaquin Valley attainment plans for ozone as well as for other nonattainment pollutants, including PM10 and PM2.5, including, but not limited to, dozens of District rules establishing VOC or NOX emissions limits and other requirements for various types of stationary sources, and dozens of state regulations establishing such limits and requirements for various types of mobile sources, for vehicle inspection and maintenance, for gasoline and diesel fuels, for consumer products and pesticides. These various regulatory programs have resulted in significant emissions reductions of ozone precursors and corresponding ozone concentrations in the San Joaquin Valley despite high rates of growth in population and regional VMT. For instance, 1-hour ozone exceedance days within the Valley (i.e., number of days in a year during which the 0.12 ppm standard was violated at a (i.e., at least one) monitoring site) have decreased from 45 in 1990 to 3 in 2012. See table A-1 of 2013 Ozone Plan. However, as of 2012, the Valley continued to experience violations of the 1-hour ozone standard, and the 2013 Ozone Plan was developed to demonstrate attainment of that standard, and to meet the other remaining 1-hour ozone SIP obligations (and the VMT emissions offset requirement for the 1997 8-hour ozone standard).

    Lastly, as noted above, the EPA tightened the 8-hour ozone standard in 2008 and tightened the standard further in 2015. The EPA has designated the San Joaquin Valley as an “Extreme” area for the 2008 8-hour ozone standard. 77 FR 30088 (May 21, 2012). The “Extreme” area plan for the San Joaquin Valley for the 2008 ozone standard is due in 2016. In establishing final implementation rules for the 2008 8-hour ozone standard, the EPA revoked the 1997 8-hour ozone standards and includes anti-backsliding requirements that apply upon revocation of the 1997 8-hour ozone standards. 80 FR 12264 (March 6, 2015). Consistent with the application of anti-backsliding provisions upon revocation of the 1-hour ozone standards, areas that remain designated as nonattainment for the 1997 8-hour ozone standard at the time of revocation of the 1997 8-hour ozone standard continue to be subject to certain SIP requirements that had applied by virtue of the area's classifications for the now-revoked 1997 8-hour ozone standard as well as the revoked 1-hour ozone standard. Id. at 12296; 40 CFR 51.1105 and 51.1100(o). For the purposes of this proposed action, this means that outstanding SIP requirements linked to the San Joaquin Valley's “Extreme” nonattainment area classifications for the 1-hour ozone standard and 1997 8-hour ozone standard continue to apply notwithstanding the revocation of these two ozone NAAQS. The EPA has not yet established area designations for the 2015 8-hour ozone standard.

    II. CARB's SIP Revision Submittal To Address Remaining 1-Hour and 1997 8-Hour Ozone Requirements in the San Joaquin Valley A. CARB's SIP Submittal

    The District adopted the 2013 Ozone Plan on September 19, 2013, and CARB approved the plan as a revision to the California SIP on November 21, 2013.7 CARB submitted the 2013 Ozone Plan to the EPA on December 20, 2013.8 The 2013 Ozone Plan includes base year and projected future year emissions inventories, air quality modeling, provisions demonstrating implementation of RACM, provisions for advanced technology/clean fuels for boilers, provisions for transportation control strategies and measures, an ROP demonstration, an attainment demonstration, and contingency measures for failure to make ROP or attain.

    7 See SJVUAPCD Governing Board Resolution 2013-09-13: In the Matter of Adopting the San Joaquin Valley Unified Air Pollution Control District 2013 Plan For The Revoked 1-Hour Ozone Standard, September 19, 2013; CARB Resolution No. 13-45, November 21, 2013.

    8 Letter, Richard Corey, Executive Officer, CARB to Jared Blumenfeld, Regional Administrator, EPA Region 9, December 20, 2013 with enclosures.

    Appendix D of the 2013 Ozone Plan contains the VMT emissions offset demonstrations for the 1-hour ozone and 1997 8-hour ozone NAAQS. On June 19, 2014, CARB submitted a technical supplement to the VMT emissions offset demonstrations submitted as part of the 2013 Ozone Plan.9 CARB's technical supplement includes a revised set of motor vehicle emissions estimates reflecting technical changes to the inputs used to develop the original set of calculations.10 While the vehicle emissions estimates in CARB's technical supplement differ from those contained in the demonstrations in the 2013 Ozone Plan, the conclusions of the analyses remain the same.

    9 See June 19, 2014 letter and enclosures from Lynn Terry, Deputy Executive Officer, CARB, to Deborah Jordan, Director, Air Division, EPA Region 9. On July 25, 2014, CARB sent the EPA a revised technical supplement that corrected a minor typographical error. See record of July 25, 2014 email and attachment from Jon Taylor, CARB, to Matt Lakin, EPA Region 9, included in the docket.

    10 The principal difference between the two sets of calculations is that CARB's technical supplement includes running exhaust, start exhaust, hot soak, and running loss emissions of VOCs in all of the emissions scenarios. These processes are directly related to VMT and vehicle trips. The revised calculation excludes diurnal and resting loss emissions of VOCs from all of the emissions scenarios because such evaporative emissions are related to vehicle population rather than to VMT or vehicle trips.

    B. CAA Procedural Requirements for Adoption and Submittal of SIP Revisions

    CAA sections 110(a)(1) and (2) and 110(l) require a state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.

    Both the District and CARB have satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of the 2013 Ozone Plan. The District conducted a public workshop on April 16, 2013. On August 20, 2013, the District posted on its Web site an announcement and supporting documents for a September 19, 2013 public hearing and also sent out an email to [email protected] informing interested individuals and parties about the public hearing and links to key documents and participation via webcast.11 The District thereby provided the required public notice and opportunity for public comment prior to its public hearing on the 2013 Ozone Plan. On September 19, 2013, the District held a public hearing to adopt the 2013 Ozone Plan and adopted the plan on that date. See 2013 Ozone Plan, appendix J (“Summary of Significant Comments and Responses”) and SJVUAPCD Governing Board Resolution 2013-9-13.

    11 January 30, 2015 email from Elizabeth Melgoza, CARB, to John Ungvarsky, EPA Region 9; May 13, 2015 and May 19, 2015 emails from SJVUAPCD staff to John Ungvarsky, EPA Region 9.

    CARB also provided the required public notice and opportunity for public comment prior to its November 21, 2013 public hearing and approval of the 2013 Ozone Plan as a revision to the California SIP. See CARB “Notice of Public Meeting” dated October 21, 2013, and CARB Resolution No. 13-45. As noted previously, on December 20, 2013, CARB submitted the 2013 Ozone Plan and related public process documentation to the EPA. The EPA determined that CARB's December 20, 2013 SIP revision submittal was complete on May 19, 2014.12

    12 See letter from Deborah Jordan, Director, Air Division, EPA Region 9, to Richard W. Corey, Executive Officer, CARB, dated May 19, 2014.

    Based on information in the December 20, 2013 SIP submittal and subsequent email communication with District staff, the EPA has determined that all hearings were properly noticed. We find, therefore, that the submittal of the 2013 Ozone Plan meets the procedural requirements for public notice and hearing in CAA sections 110(a) and 110(l).

    III. Evaluation of the 2013 Ozone Plan A. Emissions Inventories

    We have evaluated the emissions inventories in the 2013 Ozone Plan to determine if they are consistent with EPA guidance (General Preamble at 13502) and adequate to support that plan's RACM, ROP and attainment demonstrations. Appendix B of the 2013 Ozone Plan presents the base year and projected emission inventories relied on for the ROP and attainment demonstrations. Appendix B also discusses the methodology used to determine base year (2007) emissions and identifies the growth and control factors used to project emissions for the 2013 and 2016 (ROP milestone years) and 2017 (ROP increment and attainment) projected year inventories. The plan includes summer (May through October) average daily inventories for the base year of 2007 and projected inventories for years 2013 through 2022 for all major source categories (stationary sources, area sources, and on-road and nonroad mobile sources). Emissions are calculated for the two major ozone precursors—NOX and VOC. See tables B-1 and B-2 of appendix B of the 2013 Ozone Plan. Additional documentation for the inventories prepared for the 2013 Ozone Plan are found in appendix E, section 6 of the 2013 Ozone Plan.

    The emissions inventories in the 2013 Ozone Plan were developed using data provided by CARB, the California Department of Transportation, and the San Joaquin Valley's eight metropolitan planning organizations (MPO).13 These agencies collect data (e.g., industry growth factors, socioeconomic projections, travel activity levels, emission factors, emission speciation profiles, and emissions) and develop methodologies (e.g., model and demographic forecast improvements) used to generate comprehensive emissions inventories. CARB maintains statewide inventories in its California Emissions Inventory Development and Reporting System (CEIDARS) and uses the California Emission Forecasting and Planning Inventory System (CEFS) to forecast or backcast emissions. CEFS is designed to generate year-specific emissions estimates for each county/air basin/district combination taking into account two factors: the effects of growth, and the effects of adopted emission control rules. It does this by linking these growth and control factors directly to CEIDARS emission categories for a particular base year. The 2007 inventory was used to project future years using CARB's CEFS v 1.06.

    13 These eight MPOs represent the eight counties in the San Joaquin Valley air basin: the San Joaquin Council of Governments, the Stanislaus Council of Governments, the Merced County Association of Governments, the Madera County Transportation Commission, the Council of Fresno County Governments, Kings County Association of Governments, the Tulare County Association of Governments, and the Kern Council of Governments.

    CARB also conducts periodic evaluations and updates of the growth profiles to ensure that emission forecasts are based on data that reflect historical trends, current conditions, and recent forecasts. CARB staff conducted a category-by-category review and update of the growth profile data for source categories that, in aggregate, comprise more than 95 percent of the NOX or VOC emissions in the San Joaquin Valley. To capture the effects of the economic recession, CARB staff ensured that the growth profiles included historical data through at least 2008 (data through 2009 or 2010 were included when available). Growth forecasts for the years 2009 and beyond were obtained primarily from government entities with expertise in developing forecasts for specific sectors, or in some cases, from econometric models.

    Motor vehicle emissions were based on estimates of VMT provided by the regional transportation planning agencies and the California Department of Transportation. The plan uses CARB's Emission FACtor (EMFAC) model, version EMFAC2011, to calculate the emission factors for cars, trucks and buses. At the time that the 2013 Ozone Plan was developed, EMFAC2011 was the mobile source model approved for use in California SIPs.14 Nonroad emissions estimates were based on CARB's OFFROAD model.

    14 See 78 FR 14533 (March 6, 2013) regarding the EPA approval of the 2011 version of the California EMFAC model and announcement of its availability. The software and detailed information on the EMFAC vehicle emission model can be found on the following CARB Web site: http://www.arb.ca.gov/msei/msei.htm. EMFAC2011 was the approved version of EMFAC at the time of adoption and submittal of the 2013 Ozone Plan. Recently, the EPA approved an updated version of the model, EMFAC2014. 80 FR 77337 (December 14, 2015).

    Table 1 provides a summary of the emissions estimates prepared for the 2013 Ozone Plan for the base year (2007) and ROP and attainment years 2013, 2016, and 2017.

    Table 1—San Joaquin Valley Ozone Precursor Base Year and Projected Future Year Emissions [Summer average, tpd] Category NOX 2007 2013 2016 2017 VOC 2007 2013 2016 2017 Stationary 57 40 30 30 100 96 97 97 Area 11 11 11 11 221 186 191 193 On-road Mobile 273 158 119 110 71 49 35 33 Off-road Mobile 144 108 99 97 65 49 45 43 Total 485 316 259 247 457 381 368 366 Source: 2013 Ozone Plan, appendix B. Note: Because of rounding conventions, the totals may not reflect total of categories.

    We have determined that the 2007 base year emission inventory in the 2013 Ozone Plan is comprehensive, accurate, and current and that this inventory as well as the 2013, 2016, and 2017 projected inventories have been prepared consistent with EPA guidance. Accordingly, we propose to find that these inventories provide an appropriate basis for the various other elements of the 2013 Ozone Plan, including RACM, and the ROP and attainment demonstrations.

    B. Reasonably Available Control Measures Demonstration and Control Strategy 1. Requirements for RACM and Control Strategies

    CAA section 172(c)(1) requires nonattainment area plans to provide for the implementation of all RACM. The RACM demonstration requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” 1-hour ozone nonattainment area under EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(17).

    The EPA has previously provided guidance interpreting the RACM requirement in the General Preamble at 13560 and a memorandum entitled “Guidance on the Reasonably Available Control Measure Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas,” John Seitz, Director, OAQPS to Regional Air Directors, November 30, 1999 (Seitz memo). In summary, EPA guidance provides that states, in addressing the RACM requirement, should consider all potential measures for source categories in the nonattainment area to determine whether they are reasonably available for implementation in that area and whether they would advance the area's attainment date by one or more years.

    2. RACM and Control Strategy in the 2013 Ozone Plan

    The District's RACM demonstration and control strategy for the 1-hour ozone standard in the 2013 Ozone Plan relies on control measures that have been adopted by CARB and the District under previous attainment plans. In the more recent years prior to the adoption of the 2013 Ozone Plan, CARB and the District have developed and implemented comprehensive plans for the 1997 8-hour ozone standards, 1997 PM2.5 standards, and 2006 PM2.5 standards that resulted in the adoption of many new rules and revisions to existing rules for stationary, area, and mobile sources. These previously adopted measures generated significant reductions in NOX and VOC emissions. The measures are listed in the Technical Support Document (TSD) for today's action. The control measures were developed and adopted under previous San Joaquin Valley attainment plans, including the 2007 Ozone Plan, the 2008 PM 2.5 Plan (adopted April 30, 2008) (“2008 PM2.5 Plan”), and the 2012 PM 2.5 Plan (adopted December 20, 2012) (“2012 PM2.5 Plan”), which were developed to provide, among other things, for attainment of the 1997 8-hour ozone standard, the 1997 PM2.5 standards, and the 2006 PM2.5 standard, respectively, and which relied on adoption and implementation by CARB of new or tightened mobile source regulations under CARB's 2007 State Strategy.15

    15 The EPA approved the San Joaquin Valley 2007 Ozone Plan and related portions of the 2007 State Strategy at 77 FR 12652 (March 1, 2012); the San Joaquin Valley 2008 PM2.5 Plan and related portions of the 2007 State Strategy at 76 FR 69896 (November 9, 2011). The EPA proposed to approve portions of the 2012 PM2.5 Plan on January 13, 2015 (80 FR 1816).

    a. The District's RACM Analysis and Adopted Control Strategy

    The District's RACM analysis builds on previously adopted measures. Table 3-1 (p. 3-3) in the 2013 Ozone Plan lists currently adopted District rules that are contributing towards attainment of the 1-hour ozone standard. The 2013 Ozone Plan's RACM evaluation for NOX and VOC sources is summarized in section 4.2 (p. 4-2) and detailed in appendix C (“Stationary and Area Source Control Strategy Evaluation”) of the 2013 Ozone Plan. The evaluation of potential controls in the 2013 Ozone Plan is presented by source category. For stationary and area source categories, the evaluation is broken down by the current District rule or rules that fall within a given source category.

    The following information is provided in appendix C of the 2013 Ozone Plan for each stationary or area source category or District rule:

    • A description of the sources within the category or sources subject to the rule;

    • Base year (2007) and projected baseline year emissions (for every year from 2013 to 2022) in the source category or affected by the rule;

    • A discussion of the current rule requirements and/or listing and discussion of existing rules, regulations, or other control efforts that address the source category; and

    • Identification and discussion of potential new controls, including in many cases, a discussion of the technological and economic feasibility of the new controls. Rules adopted by other agencies (including the EPA, South Coast Air Quality Management District (AQMD), and Bay Area AQMD) are discussed and compared to existing SJVUAPCD rules. Measures proposed by the public for the source category/rule are also identified and discussed. In addition, non-regulatory approaches to reducing emissions in each stationary and area source category are discussed, including the use of incentives, opportunities for technology advancement programs, policy initiatives, and education/outreach programs.

    Through its RACM evaluation process, the District identified two new control measures for adoption, and through adoption of the 2013 Ozone Plan, the District committed to adopt and submit these measures as a revision to the California SIP (see District Resolution 2013-9-13, page 5), although the District and State do not rely on reductions from these commitments in their attainment demonstration. See 2013 Ozone Plan, section 3.1.3 (p. 3-8).

    The District's commitments have been fulfilled in that the anticipated rule amendments have been adopted and the rules have been submitted to the EPA as a revision to the California SIP. The current status of the rules is shown in table 2, and as shown there, the EPA has approved one of the two rules and has proposed approval of the other. We expect to take final action on the second rule prior to final action on the 2013 Ozone Plan.

    Table 2—Status of Rule Adoption Commitments in the 2013 Ozone Plan Rule Measure description Adoption date Submittal date Emission reductions Status 4308 Boilers, Steam Generators, and Process Heaters 0.075 to <2 MMBtu/hr 11/14/13 5/13/14 Minimal in 2017 Approved 2/12/15 (80 FR 7803). 4905 Natural Gas-Fired, Fan Type Residential Central Furnaces 1/22/15 4/7/15 To Be Determined Proposed Approval 11/5/15 (80 FR 68484). Source: 2013 Ozone Plan, p. 3-9, table 3-3.

    In light of the comprehensiveness of the District's stationary and area source program, and the stringency of the District's regulations, the 2013 Ozone Plan concludes that RACM is being implemented for sources under the District's jurisdiction. See section 4.2.1 of the 2013 Ozone Plan.

    The District also identified a number of source categories for which existing information is inadequate to determine the feasibility of additional controls. These categories and the additional controls to be studied are discussed in section 3.1.4. (p. 3-9). The schedule for these studies is given in table 3-4 (see 2013 Ozone Plan, p. 3-10).

    The TSD for today's action includes additional information on each District rule, including its status in terms of federal approval and the net inventory changes between 2007 and 2017.

    b. CARB and Metropolitan Planning Organizations' RACM Analysis and Adopted Control Strategy

    Given the need for significant emissions reductions in California nonattainment areas, CARB has been a leader in the development and adoption of stringent mobile source control measures nationwide and has unique authority under CAA section 209 (subject to a waiver or authorization by the EPA) to adopt and implement new emissions standards for many categories of on-road vehicles and engines and new and in-use off-road engines. CARB has adopted standards and other requirements related to the control of emissions from numerous types of on-road motor vehicles and new and in-use off-road vehicles, such as passenger cars, trucks, buses, motorcycles, off-road engines (gasoline and diesel-powered), in-use off-road diesel fueled fleets, portable equipment, marine engines, and many others.

    Historically, the EPA has allowed California to take into account emissions reductions from CARB regulations for which the EPA has issued waivers or authorizations under CAA section 209 notwithstanding the fact that these regulations have not been approved as part of the California SIP. However, in response to the decision by the Ninth Circuit in Committee for a Better Arvin v. EPA, discussed previously, the EPA has now proposed to approve the current set of mobile source regulations for which waivers or authorizations have been issued as a revision to the California SIP. 80 FR 69915 (November 12, 2015). We expect to take final action on California's mobile source regulations prior to final action on the 2013 Ozone Plan.

    CARB's mobile source program extends beyond regulations that are subject to the waiver or authorization process set forth in CAA section 209 to include standards and other requirements to control emissions from in-use heavy-duty trucks and buses, gasoline and diesel fuel specifications, and many other types of mobile sources. Generally, these regulations have been submitted and approved as revisions to the California SIP. See, e.g., 77 FR 20308 (April 4, 2012) (EPA approval of standards and other requirements to control emissions from in-use heavy-duty diesel-powered trucks).

    Section 3.1.1.2 of the 2013 Ozone Plan discusses the emissions reductions from CARB's mobile source program and includes a table (table 3-2) that lists all of the regulations adopted or amended by CARB from 2000 through early 2012. While all of the listed measures contribute to some degree to attainment of the 1-hour ozone standard in the San Joaquin Valley, some are called out in particular as providing significant emissions reductions relied upon for attainment of the ozone standard under the 2013 Ozone Plan. These measures include the in-use heavy-duty diesel-powered truck regulation, the in-use off-road equipment regulation, and the advanced clean car program, among others. The 2013 Ozone Plan concludes that, in light of the comprehensiveness and stringency of CARB's mobile source program, all reasonable control measures under CARB's jurisdiction are being implemented.

    With respect to TCMs, the 2013 Ozone Plan relies on the documentation found in appendix C of the 2012 PM2.5 Plan to conclude that all reasonably available control measures under the jurisdiction of the Valley's MPOs are being implemented. Appendix C of the 2012 PM2.5 Plan describes the efforts by the San Joaquin Valley's eight MPOs to implement cost-effective transportation control measures (TCMs). See section C.11.4 (p. C-33) of appendix C of the 2012 PM2.5 Plan. While no additional TCMs were identified by the MPOs, the 2012 PM2.5 Plan includes a discussion of the on-going implementation of a broad range of TCMs in the Valley. There is also a discussion of the MPOs' Congestion Management and Air Quality funding policy, which is a standardized process across the Valley for distributing 20 percent of the Congestion Management and Air Quality funds to projects that meet a minimum cost-effectiveness. During the comment period for the 2012 PM2.5 Plan, a number of TCMs were suggested by the public for consideration. See appendix I, pp. I-10 to I-13 of the 2012 PM2.5 Plan. The feasibility of these measures is discussed in the District's responses to comments. Id.

    c. RACM Demonstration

    The 2013 Ozone Plan concludes that the RACM requirement is met through implementation of the measures described above under the District's jurisdiction, CARB's jurisdiction, and the MPOs' jurisdiction for stationary and area sources, mobile sources, and TCMs, respectively. The plan also concludes that to advance the attainment date by one year (i.e., from 2017 to 2016) would require an additional reduction of 12.1 tpd of NOX, and that there are no reasonable measures that collectively would reduce emissions in the Valley by that amount by 2016. In support for that conclusion, the plan notes that about 90 percent of NOX emission reductions occurring between the 2007 base year and the 2017 attainment year come from mobile sources and that such reductions cannot be expedited through additional District action because, generally, the District does not have jurisdiction over mobile sources.

    3. Proposed Action on RACM Demonstration

    The process followed by the District in the 2013 Ozone Plan to identify RACM is generally consistent with the EPA's recommendations in the General Preamble. The process included compiling a comprehensive list of potential controls measures for sources of NOX and VOC in the San Joaquin Valley. This list included measures suggested in public comments on the 2013 Ozone Plan. See 2013 Ozone Plan, appendix J. As part of this process, the District evaluated potential controls for all relevant source categories for economic and technological feasibility and provided justifications for the rejection of certain identified measures. Id. After completing this evaluation, the District committed to adopt and submit two measures (i.e., Rules 4308 and 4905), which it has now done. See 2013 Ozone Plan, table 3-3, p. 3-10 and table 2 above.

    We have reviewed the District's determination in the 2013 Ozone Plan that its stationary and area source control measures represent RACM for NOX and VOC. In our review, we also considered our previous evaluations of the District's rules in connection with our approval of the San Joaquin Valley RACT SIP demonstration for the 1997 8-hour ozone standard, our comments on the 2012 PM2.5 Plan, and our comments on the District's RACT SIP demonstration for the 2008 8-hour ozone standard.16 We also reviewed measures suggested by the public in comments on the 2013 Ozone Plan. Based on this review, we believe that the District's rules provide for the implementation of RACM for stationary and area sources of NOX and VOC.17

    16 See 77 FR 1417 (January 10, 2012); EPA Region 9, Technical Support Document for the EPA's Notice of Proposed Rulemaking for the California State Implementation Plan—EPA's Evaluation of the San Joaquin Valley Unified Air Pollution Control District's Reasonably Available Control Technology (RACT) Demonstration for Ozone State Implementation Plan (SIP), Adopted April 16, 2009 (dated August 29, 2011); letter dated October 19, 2012, from Kerry Drake, Associate Director, Air Division EPA—Region 9 to Samir Sheikh, SJVUAPCD; and letter dated June 4, 2014, from Andrew Steckel, Chief, Rules Office, EPA Region 9 to Errol Villegas, Planning Manager, SJVUAPCD.

    17 A full list of the District's rules, including cites to our most recent final or proposed rulemaking on each can be found in the TSD.

    With respect to mobile sources, we recognize CARB as a leader in the development and implementation of stringent control measures for on-road and off-road mobile sources. Its current program addresses the full range of mobile sources in the San Joaquin Valley through regulatory programs for both new and in-use vehicles. See 2013 Ozone Plan, table 3-2 and appendix A of the TSD. With respect to transportation controls, we note that the MPOs have a program to fund cost-effective TCMs. See appendix C, p. C-33 of the 2012 PM2.5 Plan. Overall, we believe that CARB's and the MPOs' programs provide for the implementation of RACM for NOX and VOC from mobile sources in the San Joaquin Valley.

    Based on our review of the results of these RACM analyses, the District's and CARB's adopted rules, we propose to find that there are, at this time, no additional reasonably available measures that would advance attainment of the 1-hour ozone standard in the San Joaquin Valley. In the 2013 Ozone Plan, the District estimates that it would take a reduction between of 12.1 tpd of NOX to advance attainment from 2017 to 2016 in the San Joaquin Valley. See section 4.2 (p. 4-3). We find that no reasonably available and unadopted measures identified in the 2013 Ozone Plan, either individually or collectively, could deliver this additional increment of reductions in 2016 because of the extent to which the emissions inventory reflects mobile sources (see table 1 above) and the extent to which the mobile source inventory already reflects CARB's emissions standards and other requirements for new and in-use on-road and off-road vehicles and engines.

    For the foregoing reasons, we propose to find that the 2013 Ozone Plan provides for the implementation of all RACM as required by CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17).

    C. Rate of Progress Demonstration 1. Requirements for Rate of Progress Demonstrations

    CAA section 172(c) requires nonattainment area plans to provide for reasonable further progress (RFP) which is defined in section 171(1) as such annual incremental reductions in emissions as are required in part D or may reasonably be required by the Administrator in order to ensure attainment of the relevant ambient standard by the applicable date. CAA sections 182(c)(2) and (e) require that “Serious” and above area SIPs include ROP quantitative milestones that are to be achieved every 3 years after 1996 until attainment. For ozone areas classified as Serious and above, section 182(c)(2) requires that the SIP must provide for reductions in ozone-season, weekday VOC emissions of at least 3 percent per year net of growth averaged over each consecutive 3-year period. This is in addition to the 15 percent reduction over the first 6-year period required by CAA section 182(b)(1) for areas classified as moderate and above. The CAA requires that these milestones be calculated from the 1990 inventory after excluding, among other things, emission reductions from “[a]ny measure related to motor vehicle exhaust or evaporative emissions promulgated by the Administrator by January 1, 1990” and emission reductions from certain federal gasoline volatility requirements. CAA section 182(b)(1)(B)-(D). The EPA has issued guidance on meeting 1-hour ozone ROP requirements. See General Preamble at 13516 and “Guidance on the Post-1996 Rate-of-Progress Plan and the Attainment Demonstration,” EPA-452/R-93-015, EPA Office of Air Quality Planning and Standards, February 18, 1994 (corrected).

    CAA section 182(c)(2)(C) allows for NOX reductions that occur after 1990 to be used to meet the post-1996 ROP emission reduction requirements, provided that such NOX reductions meet the criteria outlined in the CAA and the EPA guidance. The criteria require that: (1) The sum of all creditable VOC and NOX reductions must meet the 3 percent per year ROP requirement; (2) the substitution is on a percent-for-percent of adjusted base year emissions for the relevant pollutant; and (3) the sum of all substituted NOX reductions cannot be greater than the cumulative NOX reductions required by the modeled attainment demonstration. See General Preamble at 13517 and “NOX Substitution Guidance,” EPA Office of Air Quality Planning and Standards, December 1993. Our guidance in the General Preamble states that by meeting the specific ROP milestones discussed above, the general RFP requirements in CAA section 172(c)(2) will also be satisfied. General Preamble at 13518.

    The ROP demonstration requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” 1-hour ozone nonattainment area under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

    2. ROP Demonstration in the 2013 Ozone Plan

    Section 4.3.2 (beginning on page 4-5) of the 2013 Ozone Plan provides a demonstration that the San Joaquin Valley meets the 2010, 2013, and 2016 ROP milestones and 2017 increment.18 We have summarized the ROP demonstrations in table 3.

    18 In later 2014, i.e., after adoption and submittal of the 2013 Ozone Plan, CARB revised the state's Truck and Bus regulation (see http://www.arb.ca.gov/regact/2014/truckbus14/truckbus14.htm). The 2014 revisions resulted in a temporary emission reduction disbenefit of approximately 5 tpd of NOX in the 2016 and 2017 milestone years in the San Joaquin Valley. See letter from Sylvia Vanderspek, Chief, Air Quality Planning Branch, CARB, to Matthew Lakin, Manager, Air Planning Office, EPA Region 9, dated April 23, 2015. The EPA has determined that because the 2013 Ozone Plan demonstrates that ROP milestones are met by a significant margin in 2016 and 2017, even if the 5 tpd NOX disbenefit was added back into the 2016 and 2017 baselines, the 2013 Ozone Plan would still exceed the 2016 and 2017 ROP milestones by approximately 33% for both years.

    Table 3—San Joaquin ROP Demonstrations [Tpd or percent] 2007 2010 2013 2016 2017 VOC Emission Calculations Baseline VOC inventory 457.2 440.5 380.5 368 366.3 Non-creditable FMVCP/RVP adjustments 5.6 3.7 2.7 0.7 Adjusted baseline VOC inventory in baseline year (Line 1-Line 2) 451.6 447.9 445.2 444.5 Basis for required VOC reductions 451.6 407.3 367.9 334.1 RFP Percent Reduction Required from prior milestone 9% 9% 9% 3% Target level 411.0 370.6 334.8 324.1 Apparent Shortfall 29.5 9.9 33.2 42.2 Forecasted Percent VOC shortfall 6.5% 2.2% 7.5% 9.5% VOC percent shortfall previously addressed provided by NOX substitution 0% 6.5% 2.2% 7.5% Actual VOC percent shortfall 6.5% −4.3% 5.2% 2.0% NO X Emission Calculations Baseline NOX inventory 484.9 368.2 316.0 259.2 247.1 Non-creditable FMVCP adjustments 4.9 −1.9 6.3 0.4 Adjusted baseline NOX inventory for milestones 480.0 481.9 475.6 475.2 Change since 2007 111.8 165.9 216.4 228.1 Forecasted Percent NOX creditable reductions since 2007 23.3% 34.4% 45.5% 48.0% NOX percent previously used for VOC shortfall by NOX substitution 0% 6.5% 6.5% 11.7% NOX percent available for VOC shortfall by NOX substitution and contingency 23.3% 27.9% 39.0% 36.3% NOX percent substitution needed for VOC shortfall 6.5% 0.0% 5.2% 2.0% Forecasted NOX percent reduction surplus 16.7% 27.9% 33.8% 34.2% Contingency measure reserve achieved? Yes Yes Yes Yes ROP achieved? Yes Yes Yes Yes Source: 2013 Ozone Plan, table 4-2 (page 4-6). 3. Proposed Action on the ROP Demonstration

    Based on our review of the ROP calculations in the 2013 Ozone Plan, summarized in table 3 above, we conclude the 2013 Ozone Plan demonstrates that sufficient emission reductions have or will be achieved to meet the 2010, 2013, and 2016 ROP milestones and the 2017 increment. Therefore, we propose to approve the ROP demonstration in the 2013 Ozone Plan as meeting the requirements of CAA section 172(c)(2) and 182(c)(2)(B), and 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

    D. Attainment Demonstration 1. Requirements for Attainment Demonstrations

    CAA section 182(c)(2)(A) requires states with ozone nonattainment areas classified as “Serious” or above to submit plans that demonstrate attainment of the 1-hour ozone standard by the applicable attainment date. Under the CAA, as amended in 1990, the San Joaquin Valley “Extreme” nonattainment area was to have attained the 1-hour ozone standard by November 15, 2010. In 2011, we determined that the San Joaquin Valley had failed to attain the standard by the 2010 attainment date. 76 FR 82133 (December 30, 2011). Given that the original statutory attainment date had passed and the 1-hour ozone standard had been revoked, in our 2012 final action withdrawing our approval of the 2004 Ozone Plan and issuing findings of failure to submit, we set a new attainment date by reference to CAA section 172(a)(2). 77 FR 70376, at 70377 (November 26, 2012), effective November 26, 2012. Application of the attainment date formulation in section 172(a)(2) means that the state was required to submit a revised San Joaquin Valley plan demonstrating attainment of the 1-hour ozone standard as expeditiously as practicable, but no later than five years from the effective date of the findings of failure to submit, or, in this case, no later than November 26, 2017.

    An attainment demonstration should include a control strategy that identifies specific measures to reduce emissions and photochemical modelling results showing that the emissions reductions from implementation of the control strategy is sufficient to attain the standard by the applicable attainment date. The attainment demonstration requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” 1-hour ozone nonattainment area under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(12).

    2. One-Hour Ozone Attainment Demonstration in the 2013 Ozone Plan a. Control Strategy for Attainment of the 1-Hour Ozone Standard

    The 2013 Ozone Plan relies entirely on reductions from previously adopted measures. Tables 3-1 and 3-2 in the 2013 Ozone Plan documents District and State measures that contribute to attainment of the 1-hour ozone standard in 2017. Although the 2013 Ozone Plan includes two commitment measures (see table 3-3 in 2013 Ozone Plan), reductions from those measures were not relied on for attainment. Moreover, the two measures have been adopted and submitted to the EPA.

    The future year inventories, which include reductions from adopted and creditable measures, were used in the 2013 Ozone Plan's modeling analysis described in appendix E of the 2013 Ozone Plan. Based on the modeling analysis, the District determined that the 1-hour ozone standard could be attained in 2017. A summary of the base year (2007) and 2017 attainment-year emissions inventories is shown in table 1 above. It reflects reductions of 238 tpd of NOX and 91 tpd of VOCs from the 2007 base year emissions inventory. For a more detailed comparison of the 2007 base year and 2017 attainment year inventories, see appendix B of the 2013 Ozone Plan and the TSD for today's action.

    For purposes of evaluating the 2013 Ozone Plan, all of the measures relied on to satisfy the applicable control requirements are baseline measures. As the term is used here, baseline measures are federal, State, and District rules and regulations adopted prior by the end of January 2012 (i.e., prior to the development of 2013 Ozone Plan) that continue to achieve emissions reductions through the projected 2017 attainment year and beyond.19

    19 These measures are typically rules that may have compliance dates that occur after the adoption date of a plan and mobile source measures that achieve reductions as older engines are replaced through attrition (e.g., through fleet turnover). On December 31, 2014 and subsequent to the submittal of the 2013 Ozone Plan, the State of California's Office of Administrative Law approved revisions to CARB's Truck and Bus regulation (see http://www.arb.ca.gov/regact/2014/truckbus14/truckbus14.htm). The revisions resulted in a temporary emission reduction disbenefit of approximately 5 tpd of NOX in 2017. In an April 23, 2015 letter from Sylvia Vanderspek, Chief, Air Quality Branch, CARB to Matt Lakin, Manager, Air Planning Office, EPA Region IX, the State provides an adequate technical justification showing that the demonstration of attainment in 2017 is not affected.

    The District has adopted more than 50 prohibitory rules that limit emissions of either VOC or NOX. These rules include controls for a variety of sources including boilers, oil field and refinery equipment, surface coatings operations, and open burning. The 2013 Ozone Plan lists many of these measures in table 3-1. Reductions from these measures are incorporated into the future year baseline inventories. Appendix C of the 2013 Ozone Plan includes inventory information that allows for a comparison of 2007 rule-specific emissions inventory data for stationary and area sources against future year rule-specific inventories. The net inventory impact of the rule reductions and growth is included in the TSD for today's proposal. We have also provided in the TSD a list of the District's prohibitory NOX and VOC rules and SIP approval status.

    The state's baseline measures fall within two categories: Measures for which the State has obtained a waiver or authorization of federal pre-emption under CAA section 209 (“waiver” measures) and those for which the state is not required to obtain a waiver (“non-waiver” measures). Non-waiver measures include: Improvements to California's inspection and maintenance (I/M) program, SmogCheck; cleaner burning gasoline and diesel regulations; and limits on the VOC content and reactivity of consumer products. Table 3-2 of the 2013 Ozone Plan lists many of the state's measures adopted since 2006 that are contributing to attainment of the 1-hour ozone standard.

    Over the years, the EPA has approved the non-waiver measures and amendments to those measures as part of the California SIP. Historically, the EPA has allowed California to take credit for waiver measures (to meet CAA SIP requirements including ROP and attainment demonstrations) notwithstanding the fact that the regulations themselves have not been submitted or approved into the California SIP. However, in light of the Ninth Circuit's decision in Committee for a Better Arvin v. EPA, as discussed above, CARB has submitted the most recent set of waiver measures that contribute emissions reductions to the state's attainment plans as part of the SIP, and the EPA has proposed approval of the measures. 80 FR 69915 (November 12, 2015). We anticipate final action on the CARB mobile source SIP submittal prior to final action on the 2013 Ozone Plan.

    The 2013 Ozone Plan also includes reductions from federal measures. These measures include, for example, the EPA's national emission standards for heavy duty diesel trucks,20 certain new construction and farm equipment,21 and locomotives.22 States are allowed to rely on reductions from federal measures in attainment and ROP demonstrations.

    20 66 FR 5001 (January 18, 2001). CARB estimates that interstate trucks registered outside of California represent over 50 percent of the heavy duty trucks in California. See Table III-1 in “Staff Report: Initial Statement of Reason for Proposed Rulemaking, Proposed Regulation for In-Use, On-road Diesel Vehicles,” California Air Resources Board (October 2008).

    21 Tier 2 and 3 non-road engines standards, 63 FR 56968 (October, 23 1998); Tier 4 diesel non-road engine standard, 69 FR 38958 (June 29, 2004).

    22 63 FR 18978 (May 16, 1998) and 73 FR 37045 (June 30, 2008).

    b. Air Quality Modeling in the 2013 Ozone Plan

    CAA section 182(c)(2)(A) requires SIPs for ozone nonattainment areas to include a “demonstration that the plan, as revised, will provide for attainment of the ozone [NAAQS] by the applicable attainment date. This attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective.” Air quality modeling is used to establish emissions attainment targets, that is, the combination of emissions of ozone precursors that the area can accommodate without exceeding the relevant standard, and to assess whether the proposed control strategy will result in attainment of that standard. The procedures for modeling ozone as part of an attainment demonstration are contained in the EPA's Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for the 8-Hour Ozone and PM2.5 NAAQS and Regional Haze (“Modeling Guidance”).23 The Modeling Guidance recommends for a modeling protocol to be reviewed by the EPA prior to performance of the modeling. The Guidance includes recommendations for model input preparation, model performance evaluation, use of the model output for the attainment demonstration, and modeling documentation. Air quality modeling is performed using meteorology and emissions from a base year, and the modeled concentrations are compared to air quality monitoring data from that year to evaluate model performance. Once the performance is determined to be acceptable, future year emissions are simulated with the model. The relative (or percent) change in modeled concentration due to future emissions reductions provides a Relative Response Factor (RRF). For each monitoring site, the site's RRF is applied to its monitored base year design value to provide the future design value for comparison to the NAAQS. The Modeling Guidance also recommends supplemental air quality analyses, which may be used as part of a Weight of Evidence (WOE) analysis. A WOE analysis assesses attainment by considering evidence other than the main air quality modeling attainment test, such as trends and additional monitoring and modeling analyses.

    23 “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for the 8-Hour Ozone and PM2.5 NAAQS and Regional Haze,” EPA-454/B-07-002, April 2007. Additional EPA modeling guidance can be found in the “Guideline on Air Quality Models” in 40 CFR part 51, appendix W.

    Older guidance for the 1-hour ozone NAAQS was provided in Guideline for Regulatory Application of the Urban Airshed Model; 24 however, much of its content is outdated. Most importantly, formerly photochemical models were used in an absolute sense for the modeled attainment test, whereas currently the EPA recommends that models be used in a relative sense. That is, formerly the modeled concentration due to future emissions (absolute model prediction) was used directly to compare to the NAAQS. Currently, the EPA recommends that the relative change in modeled concentration (RRF) due to future emission reductions be used; this is applied to the monitored design value and the result compared to the NAAQS. Given that the current guidance is aimed at the 8-hour standard, whereas the older guidance is aimed at the 1-hour standard but is outdated, the State has flexibility in the approach to be used. Discussions between the EPA, CARB, and the District resulted in the approach described in the Plan's Modeling Protocol, which mainly followed the more recent Modeling Guidance, but accommodated the form and level of the 1-hour standard and incorporated model performance goals from the older 1-hour guidance.

    24 “Guideline for Regulatory Application of the Urban Airshed Model,” EPA-450/4-91-013, July 1991.

    CARB performed the air quality modeling for the 2013 Ozone Plan, with assistance from the District. The 2013 Ozone Plan's modeling protocol is contained in appendix E (“Modeling Protocol”). This protocol was reviewed by the EPA, and contains all of the elements recommended in the Guidance, including selection of model, and modeling period, modeling domain, and model boundary conditions and initialization procedures; a thorough discussion of emission inventory development and their spatial and temporal allocation; and other model input preparation procedures, model performance evaluation procedures; selection of days and other details for calculating RRFs; and provisions for the archiving of and access to raw model inputs and outputs. While some additional detail on the input meteorological data could have been useful, overall the protocol adequately addresses all of the expected elements.

    The modeling analysis uses the Community Multiscale Air Quality (CMAQ) photochemical model, developed by the EPA. The SAPRC99 (State-wide Air Pollution Research Center, 1999 version) chemical mechanism was used in CMAQ, based on CARB's historical experience with it, its favorable scientific review and good performance over the years. The modeling incorporates routinely available meteorological and air quality data collected during 2007, the base year for the 2013 Ozone Plan. The WRF model (Weather and Research Forecasting model, from the National Center for Atmospheric Research) was used to prepare meteorological input for CMAQ. CMAQ and WRF are both recognized in the Modeling Guidance as technically sound, state-of-the-art models. Air quality modeling was performed for May through September, 2007, a period that spans the ozone season in the San Joaquin Valley. The overall air quality modeling domain includes the entire State of California with 12 km resolution, and a nested domain of finer 4 km resolution that covers the San Joaquin Valley. The overall meteorological modeling covers California's neighboring states, and major portions of the next outer ring of states, with 35 km resolution; it has nested domains at 12 km and 4 km, with the latter, innermost covering the entire State of California. The areal extent, and the horizontal and vertical resolution used in these models were more than adequate for modeling San Joaquin Valley ozone.

    Model performance information is provided in appendix F of the 2013 Ozone Plan in the form of time series and scatter plots of modeled ozone compared to monitored ozone, for the May-September, 2007 period. The time series show a good match between predicted and observed concentrations. While there is some underprediction during the second half of the period (mid-July through September), performance is generally good, and the overall peaks were captured by the model. Scatter plots also show good performance, with very few outliers. Modeled values are generally within 20% of observations, and root-mean-square error (RMSE) values are typically near 0.7, showing good correlation between modeled and monitored concentrations. While current Modeling Guidance does not prescribe specific performance goals, the Modeling Protocol adopted goals from the older, 1991 EPA 1-hour ozone modeling guidance, section 5.2: Unpaired highest prediction accuracy: Within 20 percent; Normalized bias within 15 percent; and Gross error of all pairs above 60 parts per billion (ppb) (i.e., 0.060 ppm) within 35 percent (appendix F, section 1.4.1). The Modeling Protocol mentions evaluation of model performance within multiple geographic subregions, as well as additional performance statistics and spatial plots for ozone and precursor species, but these were not provided in the SIP submittal. The CARB Staff Report stated that all the performance goals were met. See CARB's “Staff Report, San Joaquin Valley 2013 Plan for the Federal 1-Hour Ozone Standard,” dated November 8, 2013, page 8. The EPA agrees that the model performance is adequate for the San Joaquin Valley 1-hour ozone attainment demonstration.

    The 2013 Ozone Plan used a “band-RRF” approach for the use of modeling results in the modeled attainment test. This a refinement of the approach in the Modeling Guidance, and is described in appendix F (“Modeling Approach and Results,” section 1.4.1) of the 2013 Ozone Plan, as well as in the Modeling Protocol and in a journal paper.25 The Modeling Guidance approach is briefly reviewed here before the band-RRF approach is described. As mentioned above, in simplest terms, an RRF is the relative model response to emissions changes, that is, the ratio of future modeled concentration to base year modeled concentration. Since the model provides concentrations for every grid square, for every hour of the simulated period, in actually implementing an RRF, a choice must be made of which particular model concentrations should be included in the calculation. The Modeling Guidance recommends that high concentration days selected from grid cells near the monitor be used; these will be most relevant for estimating the future design value at the monitor. Specifically, for the 1997 0.08 ppm (80 ppb) 8-hour ozone NAAQS in effect at the time, the Modeling Guidance recommends that the highest concentration among grid cells within 15 km of the monitor be used to represent the monitor, and that all modeled maximum daily 8-hour concentrations at or above 085 ppb 26 (0.085 ppm) be averaged. The RRF is the average for future days divided by the average for base year days; this ratio reflects the average response of high ozone concentrations near the monitor to future emission changes.

    25 Sarika Kulkarni, Ajith P. Kaduwela, Jeremy C. Avise, John A. DaMassa & Daniel Chau (2014), “An extended approach to calculate the ozone relative response factors used in the attainment demonstration for the National Ambient Air Quality Standards”, Journal of the Air & Waste Management Association, 64:10, 1204-1213, DOI: 10.1080/10962247.2014.936984.

    26 The 1997 8-hour ozone NAAQS is actually 0.08 ppm; concentrations of 84.999 ppb or below round to 80 and comply with the NAAQS, and concentrations of 85.0 or higher exceed the NAAQS.

    The 2013 Ozone Plan band-RRF approach parallels the Modeling Guidance, but differs in several specifics, especially in the choice of concentration levels to include in calculating the RRF. The 2013 Ozone Plan applied an initial performance screen: Only days that meet the model performance criteria cited above were retained for the calculation. For the choice of grid cell to represent the monitor, the 2013 Ozone Plan used the grid cell containing the monitor itself, rather than the maximum cell within 15 km; this puts a somewhat greater reliance on the spatial accuracy of the model, but is not necessarily less conservative. The 2013 Ozone Plan's choice of concentration days to include is more complex than in the Guidance. Instead of using an average over all high concentration days, in the band-RRF approach there is a different RRF for each 10 ppb-wide (0.010 ppm) band of ozone concentrations; the RRF used for a particular monitored day is computed from future and base year averages only within the concentration band relevant for that day, rather than from all high days.27 This refinement has the advantage of allowing the model response to vary depending on the concentration, instead of assuming the relative response is always the same, as the Modeling Guidance procedure does. The Modeling Guidance acknowledges that there tends to be a greater model response to emission changes at higher ozone concentrations (Modeling Guidance, page 37), so the use of RRF bands is a reasonable refinement. The use of band-RRFs requires that each day be scaled by its corresponding RRF, and that the future design value be estimated from those scaled values concentrations. This is different than the Modeling Guidance approach, in which a single RRF is applied to the monitored design value itself. The “design value” for the 1-hour ozone standard is nearly equivalent to the 4th highest concentration.28 In the 2013 Ozone Plan's approach, the 10 days with the highest observed concentration were multiplied by their respective RRFs, and the 4th highest resulting concentration was used as the predicted future design value for the monitor. The inclusion of 10 candidate days accommodates any shifts in the concentration rank of the days as the result of controls; it ensures the inclusion of days that could contribute to the post-control design value. Applying different RRFs to different days and estimating the design value afterward is very similar to the EPA's updated guidance procedure for PM2.5 attainment demonstrations.29 The band-RRF approach is a refinement to the 8-hour ozone approach recommended in the Modeling Guidance for the modeled attainment test, and is adequate for the San Joaquin Valley 1-hour ozone attainment demonstration.

    27 Specifically, a linear regression between observed and modeled concentrations was used to choose a modeled concentration for each observed day; that modeled concentration predicted from the linear fit was then used to select a ppb band and the corresponding RRF. This indirect procedure avoids quirks of individual days, providing a typical model response appropriate for future projections. It also avoids introducing any inconsistency and model bias into the RRF calculation. If the observed value were used directly to choose a band, and the model happened to underpredict on that day, then the RRF, chosen on the basis of the higher observed value, would be the model response appropriate for a higher ozone concentration, rather than for the modeled base year concentration. In short, it keeps both the RRF numerator and denominator both as modeled values, consistent with the definition of an RRF.

    28 The 1-hour ozone NAAQS is met when the “expected number of days per calendar year with maximum hourly average concentrations above 0.12 parts per million . . . is equal to or less than 1” (40 CFR 50.9); 40 CFR part 50, appendix H describes the procedure for calculating this, based on three calendar years. This is approximately the same as allowing one exceedance per year over three years, that is, the three highest values are allowed to exceed 0.12 ppm. Thus, the fourth highest concentration is a unbiased single-year value to use for comparison to the NAAQS level in a modeling context.

    29 “Update to the 24 Hour PM2.5 NAAQS Modeled Attainment Test,” EPA memorandum dated June 28, 2011, from Tyler Fox, Air Quality Modeling Group, EPA Office of Air Quality Planning and Standards. The updated guidance allowed for the shifting of PM2.5 day ranks. A shift is possible since emission controls affect PM2.5 species components differently, and species composition may be different for different seasons: Control could affect mainly winter days, with summer days little affected and so becoming higher ranked. The 2013 Ozone Plan's RRF procedure was carried out for the top 10 observed days. This accommodates differences in ranking between the observed days and their corresponding modeled days and bands, ensuring that days that were not the highest before controls, but are so after control, are available for the design value calculation. It also accommodates the fact that applying controls may result in shifting in the ranks of the days; the particular day that is 4th highest before controls may not be the 4th highest post-control day. The 2013 Ozone Plan does explicitly state whether such rank shifts actually occurred in applying the band-RRF approach, but table 4 in appendix G of the 2013 Ozone Plan does not appear to show such shifts: The 2017 design values remain sorted from high to low as are the 2007 design values. Shifts might be expected to occur if a concentration near the bottom of a band with a relatively small RRF was reduced more than a concentration at the top of the next lower band.

    An additional difference between the 2013 Ozone Plan modeled attainment test and the Modeling Guidance is that it uses only the single 2005-2007 design value as the starting point, whereas for a 2007 base year the Modeling Guidance would recommend the average of the three design values for 2005-2007, 2006-2008, and 2007-2009. It is not clear how to use band-RRF approach in conjunction with this Guidance recommendation, but presumably it would involve using ozone observations from a longer period than 2005 through 2007. Using a longer period might make for more stable design value estimates, less subject to year-to-year meteorological variability; conversely it also introduces some inconsistency given that emissions changes during a longer period would generally be larger. The EPA estimated the effect of using an alternative starting point by applying modeled percent change in design value from the 2013 Ozone Plan to the 2006-2008 design value, and to the three-design value average mentioned above. The results were 120.2 and 119.6 ppb (0.1202 and 0.1196 ppm), respectively, both slightly higher than the 2013 Ozone Plan's 119.3 ppb (0.1193 ppm), but both less than the NAAQS-compliant value of 124 ppb (or 0.124 ppm, which rounds to 0.12 ppm). Documentation on the rationale for the 2013 Ozone Plan choice of the 2005-2007 design value starting point would have strengthened the support for the attainment demonstration, but even in its absence, the EPA finds the procedure followed to be adequate for the San Joaquin Valley 1-hour ozone attainment demonstration.

    The final model results appear in chapter 2 of the 2013 Ozone Plan (and are repeated in appendix F, section 1.4.2 “Attainment Demonstration”). These are tables of three-year design values for base year 2007 and for the projected year 2017. The highest monitored 2007 design value was 135 ppb (0.135 ppm) at the Edison monitor. The highest projected 2017 design value, accounting for emission reductions occurring during 2007-2017 was 119.3 ppb (0.1193 ppm) at Edison monitor. This is comfortably below the maximum 124 ppb (0.124 ppm) consistent with NAAQS attainment. The next highest 2017 design value was substantially less, 107.4 ppb (0.1074 ppm) at the Arvin monitor.

    The 2013 Ozone Plan contains a “Weight of Evidence” (WOE) section in its appendix G. This section includes analyses of ambient concentration and emission trends, and additional analyses that strengthen the 2013 Ozone Plan's attainment demonstration conclusion that NAAQS attainment will be achieved in 2017. The overall San Joaquin Valley design value trend from 1994 through 2012 is downward, despite some individual multi-year periods of little progress, and corroborates the projection of attainment in 2017 (appendix G, figure 1, page G-2). This pattern is also seen for individual monitoring site design values trends (appendix G, figures 4-6 and 8-10, pages G-6—G-10). An exception to this is the Fresno-Drummond site, for which the 2007-2011 trend is upward, though the number of NAAQS exceedance days remains small (appendix G, figure 6, page G-7). Since VOC and especially NOX emission trends have been steadily downward (appendix G, figures 18-22, pages G-20—G-23), these stagnant periods are likely due to unfavorable meteorology. The 2013 Ozone Plan also includes trends adjusted for the effect of meteorology, based on a statistical analysis that estimates what ozone would have been had wind speeds and temperatures been more typical (appendix G, section G-2). Since a statistical analysis requires numerous data points, 20-day averages were examined rather than the design values, of which there are only one per year. While this means that the results cannot be used to directly adjust the design value trends, it is clear that for 2008-2011, unfavorable meteorology resulted in higher ozone concentrations (appendix G, figure 12, page G-14), and partly explains the slower recent progress in the design values at some monitoring sites.

    The 2013 Ozone Plan includes NOX vs. VOC diagrams showing the modeled sensitivity of ozone to reductions at each monitoring site (appendix G, figure 23, pages G-34—G-39.). The relatively flat slopes mean that ozone changes relatively little with VOC reductions. While the relative effectiveness varies by site and reduction amount, on a tpd basis NOX reductions approximately 20 times as effective as VOC reductions; for the Edison design value site, the relative effectiveness is closer to 7. In conjunction with the pronounced downward NOX emission trend referred to above, these findings provide confidence in the attainment strategy.

    Finally, the 2013 Ozone Plan provides a supplemental attainment demonstration using a traditional “single RRF” approach, in addition to the “band-RRF” approach (appendix G, sections 6.1 and 6.2, pages G-26—G-33). (As described above, in the former approach, described in the Modeling Guidance for 8-hour ozone, a single RRF is used regardless of the ozone concentration. In the latter approach there is a different RRF for each “band” or range of ozone values.) The single RRF approach is more conservative, giving slightly higher future concentrations; this was expected since the RRF includes model results from lower, less responsive, ozone levels. The single RRF approach nevertheless also shows 2017 attainment.

    The various analyses provided in appendix G of the 2013 Ozone Plan provide assurance in the attainment demonstration's conclusion that the 1-hr ozone NAAQS will be attained in 2017.

    c. Evaluation of the Air Quality Modeling in the 2013 Ozone Plan

    The modeling showed that existing State and District control measures are sufficient to attain the 1979 1-hour Ozone NAAQS by 2017 at all monitoring sites in the San Joaquin Valley. Given the extensive discussion of modeling procedures, tests, and performance analyses called for in the Modeling Protocol and the good model performance, the EPA finds that the modeling is adequate for purposes of supporting the 1-hour ozone attainment demonstration.

    3. Proposed Action on the Attainment Demonstration

    To approve a SIP's attainment demonstration, the EPA must make several findings: First, we must find that the demonstration's technical bases—emissions inventories and air quality modeling—are adequate. As discussed above in section III.A, we propose to find that the inventories in the 2013 Ozone Plan provide an appropriate basis for the various other elements of the 2013 Ozone Plan, including the attainment demonstration, and for the reasons discussed above, we find the air quality modeling adequate to support the attainment demonstration.

    Second, we must find that the SIP provides for expeditious attainment through the implementation of all RACM. As discussed above in section III.B, we are proposing to approve the RACM demonstration in the 2013 Ozone Plan.

    Third, we must find that the emissions reductions that are relied on for attainment are creditable and are sufficient to provide for attainment. As stated previously in today's action, the EPA is proposing to approve the 2013 Ozone Plan in part based on the permanence and enforceability of the waiver measures flowing from the approval of the measures as part of the SIP. Thus, the EPA will not finalize approval of the 2013 Ozone Plan until the Agency takes final action to approve the waiver measures as part of the California SIP. Once that occurs, the 2013 Ozone Plan will rely entirely on adopted and approved rules to achieve the emissions reductions needed to attain the 1-hour ozone standards in the San Joaquin Valley in 2017.

    E. Contingency Measures 1. Requirements for Contingency Measures

    Section 172(c)(9) and 182(c)(9) of the CAA require that SIPs contain contingency measures that will take effect without further action by the state or the EPA if an area fails to attain the ozone standard by the applicable attainment date (section 172(c)(9)) or fails to meet an ROP milestone (section 182(c)(9)). This requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” 1-hour ozone nonattainment area under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(13).

    The Act does not specify how many contingency measures are needed or the magnitude of emission reductions that must be provided by these measures. However, the EPA provided initial guidance interpreting the contingency measure requirements in the General Preamble at 13510. Our interpretation is based upon the language in sections 172(c)(9) and 182(c)(9) in conjunction with the control measure requirements of sections 172(c), 182(b) and 182(c)(2)(B), the reclassification and failure to attain provisions of section 181(b) and other provisions. In the General Preamble, the EPA indicated that states with moderate and above ozone nonattainment areas should include sufficient contingency measures so that, upon implementation of such measures, additional emissions reductions of three percent of the emissions in the adjusted base year inventory (or such lesser percentage what will cure the identified failure) would be achieved in the year following the year in which the failure is identified. These reductions should be beyond what is needed to meet the attainment and/or ROP requirement. States may use reductions of either VOC or NOX or a combination of both to meet the contingency measure requirements. General Preamble at 13520, footnote 6. The states must show that the contingency measures can be implemented with minimal further action on their part and with no additional rulemaking actions.

    In subsequent guidance,30 the EPA indicated that contingency measures could be implemented early, i.e., prior to the milestone or attainment date. Consistent with this policy, states are allowed to use excess reductions from already adopted measures to meet the CAA sections 172(c)(9) and 182(c)(9) contingency measures requirement. This is because the purpose of contingency measures is to provide extra reductions that are not relied on for ROP or attainment that will provide continued progress while the plan is being revised to fully address the failure to meet the required milestone. Nothing in the CAA precludes a state from implementing such measures before they are triggered. This approach has been approved by the EPA in numerous SIPs. See 62 FR 15844 (April 3, 1997) (approval of the Indiana portion of the Chicago area 15 percent ROP plan); 62 FR 66279 (December 18, 1997) (approval of the Illinois portion of the Chicago area 15 percent ROP plan); 66 FR 30811 (June 8, 2001) (proposed approval of the Rhode Island post-1996 ROP plan); and 66 FR 586 and 66 FR 634 (January 3, 2001) (approval of the Massachusetts and Connecticut 1-hour ozone attainment demonstrations). In the only adjudicated challenge to this approach, the court upheld it. See LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004). 70 FR 71611, 71651.

    30 G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, EPA Office of Air Quality Planning and Standards, memorandum titled “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,” August 13, 1993.

    2. Contingency Measures in the 2013 Ozone Plan

    Contingency measure provisions are described in Section 4.4 of the 2013 Ozone Plan. To provide for contingency measures for failure to meet the ROP milestones, the SIP relies on surplus NOX reductions in the ROP demonstration. See 2013 Ozone Plan, table 4-2. See also table 3 above.

    For the failure to attainment contingency measure, the 3 percent reduction from the 2007 baseline can come from either VOC or NOX. A three percent reduction from the 2007 baseline is equivalent to 14.5 tpd of NOX. VOC emission reductions are only 0.3 tpd between 2017 and 2018; thus, NOX emission reductions are necessary to satisfy the attainment contingency measure requirement. Fleet turnover in 2018 is expected to reduce NOX emissions by 11.0 tpd. See 2013 Ozone Plan, appendix B, Tables B-1 and B-2. In the 2013 Ozone Plan, the District relies on 3.5 tpd of NOX reductions from unspecified incentive programs plus the NOX reductions from fleet turnover to achieve the 14.5 tpd of NOX necessary for the failure to attainment contingency measure. See 2013 Ozone Plan, table 4-4.

    3. Proposed Action on the Contingency Measures

    Contingency measures for ROP. As discussed above in section III.C, we are proposing to approve the 2013 Ozone Plan's ROP demonstration. As seen in the second to last line on table 3 above (in the ROP demonstration), there are sufficient excess reductions of NOX in each milestone year beyond those needed to meet the next ROP percent reduction requirement to provide the 3 percent of adjusted baseline emissions reductions needed to meet the RFP contingency measure requirement for 2010, 2013, 2016, and 2017. Accordingly, we propose to approve the ROP contingency measures in the 2013 Ozone Plan under CAA section 182(c)(9) and 40 CFR 51.1105(a)(1) and 51.1100(o)(13).

    Contingency measures for failure to attain. We are not proposing action on the plan's attainment contingency measures at this time. Attainment contingency measures are a distinct provision of the CAA that we may act on separately from the attainment demonstration.

    F. Clean Fuels or Advanced Control Technology for Boilers 1. Requirements for Clean Fuels or Advanced Control Technology for Boilers

    CAA section 182(e)(3) provides that SIPs must require each new, modified, and existing electric utility and industrial and commercial boiler that emits more than 25 tons per year (tpy) of NOX to either burn as its primary fuel natural gas, methanol, or ethanol (or a comparably low polluting fuel), or use advanced control technology (such as catalytic control technology or other comparably effective control methods). This requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” 1-hour ozone nonattainment area under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 51.1105(a)(1) and 51.1100(o)(6).

    Further guidance on this requirement is provided in the General Preamble at 13523. According to the General Preamble, a boiler should generally be considered as any combustion equipment used to produce steam and generally does not include a process heater that transfers heat from combustion gases to process streams. General Preamble at 13523. In addition, boilers with rated heat inputs less than 15 million Btu (MMBtu) per hour which are oil or gas fired may generally be considered de minimis and exempt from these requirements since it is unlikely that they will exceed the 25 tpy NOX emission limit. General Preamble at 13524.

    2. Provisions for Controls on Boilers in the San Joaquin Valley District Rules

    The 2013 Ozone Plan, which addresses the CAA section 182(e)(3) requirements on page 4-10, states that District Rules 4306 and 4352 address NOX from affected boilers and that these rules meet the requirements of the CAA.

    Rule 4306 “Boilers, Steam Generators, and Process Heaters—Phase 3” as revised on October 16, 2008, applies to any gaseous fuel or liquid fuel fired boiler, steam generator, or process heater with a total rated heat input greater than 5 million Btu per hour. The emission limits in the rule (5 ppm to 30 ppm for gaseous fuels and 40 ppm for liquid fuels) cannot be achieved without the use of advanced control technologies. See “Alternative Control Techniques Document—NOX Emissions from Industrial/Commercial/Institutional (ICI) Boilers,” Emissions Standards Division, EPA, March 1994; see also 76 FR 57846 at 57864-57865 (September 11, 2011) and 77 FR 12652 at 12670 (March 1, 2012) (proposed and final rules approving 2007 Ozone Plan for the San Joaquin Valley). All units subject to Rule 4306 were required to comply with the limits in the rule no later than December 1, 2008. See Rule 4306, section 7.0. We most recently approved Rule 4306 as a SIP revision at 75 FR 1715 (January 13, 2010).

    Rule 4352 “Solid Fuel Fired Boilers, Steam Generators And Process Heaters” as revised December 15, 2011, applies to any boiler, steam generator or process heater fired on solid fuel at a source that has a potential to emit more than 10 tpy of NOX or VOC. All units subject to Rule 4352 were required to comply with the rule's most stringent limits no later than January 1, 2013. Rule 4352, section 5.1. We most recently approved Rule 4352 into the California SIP at 77 FR 66548 (November 6, 2012). In an EPA action on the previous version of Rule 4352, we determined that all of the NOX emission limits in Rule 4352 effectively require operation of Selective Noncatalytic Reduction (SNCR) control systems, which are comparably effective to Selective Catalytic Reduction for the affected sources. SNCR also appears to achieve NOX emission reductions comparable to combustion of clean fuels at these types of boilers. We therefore concluded that Rule 4352 satisfies the requirements of section 182(e)(3) for solid fuel-fired boilers in the San Joaquin Valley. 75 FR 60623 (October 10, 2010).

    New and modified boilers that will emit or have the potential to emit 25 tpy or more of NOX are subject to the District's new source permitting rule, Rule 2201 “New and Modified Stationary Source Review Rule.” This rule requires new and modified source to install and operate best available control technology/lowest achievable emissions reductions technology. The EPA most recently approved Rule 2201 into the California SIP at 79 FR 55637 (September 17, 2014).

    3. Proposed Finding on the Clean Fuel/Advanced Technology for Boilers

    Based on our review of, and previous approval of, the emission limitations in the District's rules discussed above, we propose to find that the 2013 Ozone Plan meets the clean fuels or advanced control technology for boilers requirement in CAA section 182(e)(3) and 40 CFR 40 CFR 51.1105(a)(1) and 51.1100(o)(6).

    G. Transportation Control Strategies and Transportation Control Measures To Offset Growth in Emissions From Growth in Vehicle Miles Traveled or Number of Vehicle Trips 1. Requirements for VMT Emissions Offset Demonstrations

    Section 182(d)(1)(A) of the Act requires, in relevant part, the state, if subject to its requirements for a given area, to “submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures to offset any growth in emissions from growth in vehicle miles traveled or number of vehicle trips in such area.” 31 This requirement is a continuing applicable requirement for the San Joaquin Valley “Extreme” ozone nonattainment area for the 1-hour and 1997 8-hour standards under the EPA's anti-backsliding rules that apply once a standard has been revoked. See 40 CFR 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

    31 CAA section 182(d)(1)(A) includes three separate elements. In short, under section 182(d)(1)(A), states are required to adopt transportation control strategies and measures (1) to offset growth in emissions from growth in VMT, and, (2) in combination with other emission reduction requirements, to demonstrate RFP, and (3) to demonstrate attainment. For more information on the EPA's interpretation of the three elements of section 182(d)(1)(A), please see 77 FR 58067, at 58068 (September 19, 2012)(proposed withdrawal of approval of South Coast VMT emissions offset demonstrations). The decision by the Ninth Circuit in the Association of Irritated Residents case, and the EPA's related withdrawal of the San Joaquin Valley approvals and finding of failure to submit, relate only to the first element of CAA section 182(d)(1)(A)(i.e., the VMT emissions offset requirement). Accordingly, this proposed action relates only to the first element of CAA section 182(d)(1)(A).

    As described above, in 2012, 77 FR 70376 (November 26, 2012), the EPA withdrew the Agency's approvals of the VMT emissions offset demonstrations for the San Joaquin Valley for the 1-hour ozone and 1997 8-hour ozone standards. In both instances, the EPA had based its approvals on the Agency's long-standing interpretation of the VMT emissions offset requirement that was rejected by the Ninth Circuit in the Association of Irritated Residents case. In response to the Court's decision, the EPA issued a memorandum titled “Guidance on Implementing Clean Air Act Section 182(d)(1)(A): Transportation Control Measures and Transportation Control Strategies to Offset Growth in Emissions Due to Growth in Vehicle Miles Travelled” (herein referred to as the “August 2012 guidance”).32

    32 Memorandum from Karl Simon, Director, Transportation and Climate Division, Office of Transportation and Air Quality, to Carl Edland, Director, Multimedia Planning and Permitting Division, EPA Region 6, and Deborah Jordan, Director, Air Division, EPA Region 9, August 30, 2012.

    The August 2012 Guidance discusses the meaning of the terms, “transportation control strategies” (TCSs) and “transportation control measures” (TCMs), and recommends that both TCSs and TCMs be included in the calculations made for the purpose of determining the degree to which any hypothetical growth in emissions due to growth in VMT should be offset. Generally, TCSs is a broad term that encompasses many types of controls including, for example, motor vehicle emission limitations, inspection and maintenance (I/M) programs, alternative fuel programs, other technology-based measures, and TCMs, that would fit within the regulatory definition of “control strategy.” See, e.g., 40 CFR 51.100(n). TCMs are defined at 40 CFR 51.100(r) as meaning “any measure that is directed toward reducing emissions of air pollutants from transportation sources. Such measures include, but are not limited to those listed in section 108(f) of the Clean Air Act[,]” and generally refer to programs intended to reduce the VMT, the number of vehicle trips, or traffic congestion, such as programs for improved public transit, designation of certain lanes for passenger buses and high-occupancy vehicles (HOVs), trip reduction ordinances, and the like.

    The August 2012 guidance explains how states may demonstrate that the VMT emissions offset requirement is satisfied in conformance with the Court's ruling. States are recommended to estimate emissions for the nonattainment area's base year and the attainment year. One emission inventory is developed for the base year, and three different emissions inventory scenarios are developed for the attainment year. For the attainment year, the state would present three emissions estimates, two of which would represent hypothetical emissions scenarios that would provide the basis to identify the “growth in emissions” due solely to the growth in VMT, and one that would represent projected actual motor vehicle emissions after fully accounting for projected VMT growth and offsetting emissions reductions obtained by all creditable TCSs and TCMs. See the August 2012 guidance for specific details on how states might conduct the calculations.

    The base year on-road VOC emissions should be based on VMT in that year and it should reflect all enforceable TCSs and TCMs in place in the base year. This would include vehicle emissions standards, state and local control programs such as I/M programs or fuel rules, and any additional implemented TCSs and TCMs that were already required by or credited in the SIP as of that base year.

    The first of the emissions calculations for the attainment year would be based on the projected VMT and trips for that year, and assume that no new TCSs or TCMs beyond those already credited in the base year inventory have been put in place since the base year. This calculation demonstrates how emissions would hypothetically change if no new TCSs or TCMs were implemented, and VMT and trips were allowed to grow at the projected rate from the base year. This estimate would show the potential for an increase in emissions due solely to growth in VMT and trips. This represents a “no action” taken scenario. Emissions in the attainment year in this scenario may be lower than those in the base year due to the fleet that was on the road in the base year gradually being replaced through fleet turnover; however, provided VMT and/or numbers of vehicle trips will in fact increase by the attainment year, they would still likely be higher than they would have been assuming VMT had held constant.

    The second of the attainment year's emissions calculations would also assume that no new TCSs or TCMs beyond those already credited have been put in place since the base year, but would also assume that there was no growth in VMT and trips between the base year and attainment year. This estimate reflects the hypothetical emissions level that would have occurred if no further TCMs or TCSs had been put in place and if VMT and trip levels had held constant since the base year. Like the “no action” attainment year estimate described above, emissions in the attainment year may be lower than those in the base year due to the fleet that was on the road in the base year gradually being replaced by cleaner vehicles through fleet turnover, but in this case they would not be influenced by any growth in VMT or trips. This emissions estimate would reflect a ceiling on the attainment emissions that should be allowed to occur under the statute as interpreted by the Court because it shows what would happen under a scenario in which no offsetting TCSs or TCMs have yet been put in place and VMT and trips are held constant during the period from the area's base year to its attainment year. This represents a “VMT offset ceiling” scenario. These two hypothetical status quo estimates are necessary steps in identifying the target level of emissions from which states would determine whether further TCMs or TCSs, beyond those that have been adopted and implemented in reality, would need to be adopted and implemented in order to fully offset any increase in emissions due solely to VMT and trips identified in the “no action” scenario.

    Finally, the state would present the emissions that are actually expected to occur in the area's attainment year after taking into account reductions from all enforceable TCSs and TCMs that in reality were put in place after the baseline year. This estimate would be based on the VMT and trip levels expected to occur in the attainment year (i.e., the VMT and trip levels from the first estimate) and all of the TCSs and TCMs expected to be in place and for which the SIP will take credit in the area's attainment year, including any TCMs and TCSs put in place since the base year. This represents the “projected actual” attainment year scenario. If this emissions estimate is less than or equal to the emissions ceiling that was established in the second of the attainment year calculations, the TCSs or TCMs for the attainment year would be sufficient to fully offset the identified hypothetical growth in emissions.

    If, instead, the estimated projected actual attainment year emissions are still greater than the ceiling which was established in the second of the attainment year emissions calculations, even after accounting for post-baseline year TCSs and TCMs, the state would need to adopt and implement additional TCSs or TCMs to further offset the growth in emissions and bring the actual emissions down to at least the “had VMT and trips held constant” ceiling estimated in the second of the attainment year calculations, in order to meet the VMT offset requirement of section 182(d)(1)(A) as interpreted by the Court.

    2. Revised San Joaquin Valley VMT Emissions Offset Demonstrations

    For the revised San Joaquin Valley VMT emissions offset demonstrations, the State used EMFAC2011, the latest EPA-approved motor vehicle emissions model for California. The EMFAC2011 model estimates the on-road emissions from two combustion processes (i.e., running exhaust and start exhaust) and four evaporative processes (i.e., hot soak, running losses, diurnal losses, and resting losses). The EMFAC2011 model combines trip-based VMT data from the eight San Joaquin Valley MPOs (e.g., Council of Fresno County Governments), starts data based on household travel surveys, and vehicle population data from the California Department of Motor Vehicles. These sets of data are combined with corresponding emission rates to calculate emissions.

    Emissions from running exhaust, start exhaust, hot soak, and running losses are a function of how much a vehicle is driven. As such, emissions from these processes are directly related to VMT and vehicle trips, and the State included emissions from them in the calculations that provide the basis for the revised San Joaquin Valley VMT emissions offset demonstrations. The State did not include emissions from resting loss and diurnal loss processes in the analysis because such emissions are related to vehicle population, not to VMT or vehicle trips, and thus are not part of “any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area” (emphasis added) under CAA section 182(d)(1)(A).

    The revised San Joaquin Valley VMT emissions offset demonstrations address both the 1-hour ozone standard and the 1997 8-hour ozone standard and include two different “base year” scenarios: 1990, for the purposes of the VMT emissions offset demonstration for the 1-hour ozone standard, and 2002, for the purposes of the VMT emissions offset demonstration for the 1997 8-hour ozone standard. The “base year” for VMT emissions offset demonstration purposes should generally be the same “base year” used for nonattainment planning purposes. In 2012, the EPA approved the 2002 base year inventory for the San Joaquin Valley for the purposes of the 1997 8-hour ozone standard, 77 FR 12652, at 12670 (March 1, 2012), and thus, the State's selection of 2002 as the base year for the revised San Joaquin Valley VMT emissions offset demonstration for the 1997 8-hour ozone standard is appropriate. With respect to the 1-hour ozone standard, the attainment demonstration in the 2013 Ozone Plan relies on a base year of 2007, rather than 1990; however, the State's selection of 1990 as the base year for the VMT offset demonstration is appropriate because 1990 was used as the base year for 1-hour ozone SIP planning purposes under the CAA Amendments of 1990, which established, among other requirements, the VMT emissions offset requirement in section 182(d)(1)(A).

    The demonstrations also include the previously described three different attainment year scenarios (i.e., no action, VMT offset ceiling, and projected actual) but the attainment year differs between the two demonstrations. Year 2017 was selected as the attainment year for the revised VMT emissions offset demonstration for the 1-hour ozone standard, and year 2023 was selected as the attainment year for the revised demonstration for the 1997 8-hour ozone standard. For the 1997 8-hour ozone standard, the State's selection of 2023 is appropriate given that the approved San Joaquin Valley 1997 8-hour ozone plan demonstrates attainment by the applicable attainment date of June 15, 2024 based on the 2023 controlled emissions inventory. See 76 FR 57846, at 57856-57861 (September 16, 2011) and 77 FR 12652, at 12670 (March 1, 2012).

    The San Joaquin Valley 2013 Ozone Plan, which includes the revised VMT emissions offset demonstrations in appendix D, provides a demonstration of attainment by 2017. The revised San Joaquin Valley 1-hour ozone attainment demonstration thus provides a demonstration of attainment of the 1-hour ozone standard in the San Joaquin Valley by 2017 based on the controlled 2017 emissions inventory. As described in section III.D of this document, the EPA is proposing to approve 2017 as the attainment year for the 1-hour ozone standard in the San Joaquin Valley.33 Based on the proposed approval of 2017 as the attainment year for the San Joaquin Valley for the 1-hour ozone standard, we find CARB's selection of year 2017 as the attainment year for the revised VMT emissions offset demonstration for the 1-hour ozone standard to be acceptable. For additional background and justification regarding the 2017 attainment year, please see section III.D in today's notice.

    33 In this context, “attainment year” refers to the ozone season immediately preceding a nonattainment area's attainment date. In the case of the San Joaquin Valley for the 1-hour ozone standard, the proposed applicable attainment date is November 26, 2017, and the ozone season immediately preceding that date will occur in year 2017.

    Tables 4 and 5 summarize the relevant distinguishing parameters for each of the emissions scenarios and show the State's corresponding VOC emissions estimates. Table 4 provides the parameters and emissions estimates for the revised VMT emissions offset demonstration for the 1-hour ozone standard, and table 5 provides the corresponding values for the revised demonstration for the 1997 8-hour ozone standard.

    Table 4—VMT Emissions Offset Inventory Scenarios and Results for 1-Hour Ozone Standard Scenario VMT Year 1000/day Starts Year 1000/day Controls Year VOC
  • Emissions
  • tpd
    Base Year 1990 52,199 1990 7,730 1990 196 No Action 2017 115,070 2017 17,133 1990 178 VMT Offset Ceiling 1990 52,199 1990 7,730 1990 81 Projected Actual 2017 115,070 2017 17,133 2017 30 Source: CARB's Technical Supplement, April 24, 2014. 2017 VMT based on 2013 Federal Transportation Improvement Plans from the eight San Joaquin Valley MPOs.
    Table 5—VMT Emissions Offset Inventory Scenarios and Results for 1997 8-Hour Ozone Standard Scenario VMT Year 1000/day Starts Year 1000/day Controls Year VOC
  • Emissions
  • tpd
    Base Year 2002 78,400 2002 11,307 2002 76 No Action 2023 130,431 2023 19,466 2002 49 VMT Offset Ceiling 2002 78,400 2002 11,307 2002 28 Projected Actual 2023 130,431 2023 19,466 2023 24 Source: CARB's Technical Supplement, April 24, 2014. 2023 VMT based on 2013 Federal Transportation Improvement Plans from the eight San Joaquin Valley MPOs.

    For the two “base year” scenarios, the State ran the EMFAC2011 model for the applicable base year (i.e., 1990 for the 1-hour ozone standard and 2002 for the 1997 8-hour ozone standard) using VMT and starts data corresponding to those years. As shown in tables 5 and 6, the State estimates the San Joaquin Valley VOC emissions at 196 tpd in 1990 and 76 tpd in 2002.

    For the two “no action” scenarios, the State first identified the on-road motor vehicle control programs (i.e., TCSs or TCMs) put in place since the base years and incorporated into EMFAC2011 and then ran EMFAC2011 with the VMT and starts data corresponding to the applicable attainment year (i.e., 2017 for the 1-hour ozone standard and 2023 for the 1997 8-hour ozone standard) without the emissions reductions from the on-road motor vehicle control programs put in place after the base year. Thus, the “no action” scenarios reflect the hypothetical VOC emissions that would occur in the attainment years in the San Joaquin Valley if the State had not put in place any additional TCSs or TCMs after 1990 (for the 1-hour ozone VMT emissions offset demonstration) or after 2002 (for the 8-hour ozone demonstration). As shown in tables 5 and 6, the State estimates the “no action” San Joaquin Valley VOC emissions at 178 tpd in 2017 and 49 tpd in 2023. The principal difference between the two estimates is that the latter value (used for the revised VMT emissions offset demonstration for the 8-hour ozone standard) reflects the emissions reductions from TCSs and TCMs put in place by the end of 2002 whereas the former value (used for the revised demonstration for the 1-hour ozone standard) reflects only the emissions reductions from TCSs and TCMs put in place by the end of 1990. The most significant of the measures adopted since 1990 and relied upon for the 1-hour ozone VMT emissions offset demonstration include tiered (series of increasingly stringent limits) emissions standards for new motor vehicles (i.e., Low Emissions Vehicles I, II, and III standards), content specifications for gasoline (i.e., California Reformulated Gasoline Phases 1, 2, and 3), and enhancements to the State's I/M program (i.e., Smog Check II). See attachments A and B to appendix D of the 2013 Ozone Plan for lists of TCSs and TCMs adopted by the State and MPOs since 1990.34

    34 The docket for today's action includes an updated list of the post-1990 transportation control strategies in attachment A of appendix D to the 2013 Ozone Plan.

    For the “VMT offset ceiling” scenarios, the State ran the EMFAC2011 model for the attainment years but with VMT and starts data corresponding to base year values. Like the “no action” scenarios, the EMFAC2011 model was adjusted to reflect the VOC emissions levels in the attainment years without the benefits of the post-base-year on-road motor vehicle control programs. Thus, the “VMT offset ceiling” scenarios reflect hypothetical VOC emissions in the San Joaquin Valley if the State had not put in place any TCSs or TCMs after the base years and if there had been no growth in VMT or vehicle trips between the base years and the attainment years.

    The hypothetical growth in emissions due to growth in VMT and trips can be determined from the difference between the VOC emissions estimates under the “no action” scenarios and the corresponding estimates under the “VMT offset ceiling” scenarios. Based on the values in tables 5 and 6, the hypothetical growth in emissions due to growth in VMT and trips in the San Joaquin Valley would have been 97 tpd (i.e., 178 tpd minus 81 tpd) for the purposes of the revised VMT emissions offset demonstration for the 1-hour ozone standard, and 21 tpd (i.e., 49 tpd minus 28 tpd) for the purposes of the corresponding demonstration for the 8-hour ozone standard. These hypothetical differences establish the levels of VMT growth-caused emissions that need to be offset by the combination of post-baseline year TCMs and TCSs and any necessary additional TCMs and TCSs.

    For the “projected actual” scenario calculations, the State ran the EMFAC2011 model for the attainment years with VMT and starts data at attainment year values and with the full benefits of the relevant post-baseline year motor vehicle control programs. For this scenario, the State included the emissions benefits from TCSs and TCMs put in place since the base year. The most significant measures put in place during the 2002 to 2023 time frame include Low Emission Vehicles II and III standards, Zero Emissions Vehicle standards, and California Reformulated Gasoline Phase 3. These measures are also relied upon for the revised 1-hour ozone attainment demonstration (proposed for approval herein) and the approved 8-hour ozone attainment demonstration.

    As shown in tables 5 and 6, the results from these calculations establish projected actual attainment-year VOC emissions of 30 tpd for the 1-hour standard demonstration and 24 tpd for the 1997 8-hour standard demonstration. The State then compared these values against the corresponding VMT offset ceiling values to determine whether additional TCMs or TCSs would need to be adopted and implemented in order to offset any increase in emissions due solely to VMT and trips. Because the “projected actual” emissions are less than the corresponding “VMT Offset Ceiling” emissions, the State concluded that the demonstration shows compliance with the VMT emissions offset requirement and that there are sufficient adopted TCSs and TCMs to offset the growth in emissions from the growth in VMT and vehicle trips in the San Joaquin Valley for both the 1-hour and 1997 8-hour standards. In fact, taking into account of the creditable post-baseline year TCMs and TCSs, the State showed that they offset the hypothetical differences by 148 tpd for the 1-hour standard and by 25 tpd for the 1997 8-hour standards, rather than merely the required 97 tpd and 21 tpd, respectively.35

    35 The offsetting VOC emissions reductions from the TCSs and TCMs put in place after the respective base year can be determined by subtracting the “projected actual” emissions estimates from the “no action” emissions estimates in tables 5 and 6. For the purposes of the 1-hour ozone demonstration, the offsetting emissions reductions, 148 tpd (178 tpd minus 30 tpd), exceed the growth in emissions from growth in VMT and vehicle trips (97 tpd). For the purposes of the 8-hour ozone demonstration, the offsetting emissions reductions, 25 tpd (49 tpd minus 24 tpd), exceed the growth in emissions from growth in VMT and vehicle trips (21 tpd).

    3. Proposed Action on the VMT Emissions Offset Demonstrations

    Based on our review of revised San Joaquin Valley VMT emissions offset demonstrations in appendix D of the 2013 Ozone Plan and the related technical supplement, we find the State's analysis to be acceptable and agree that the State has adopted sufficient TCSs and TCMs to offset the growth in emissions from growth in VMT and vehicle trips in the San Joaquin Valley for the purposes of the 1-hour ozone and 1997 8-hour ozone standards. As such, we find that the revised San Joaquin Valley VMT emissions offset demonstrations comply with the VMT emissions offset requirement in CAA section 182(d)(1)(A). Therefore, we propose approval of the revised San Joaquin Valley VMT emissions offset demonstrations for the 1-hour ozone and 1997 8-hour ozone standards as a revision to the California SIP.

    IV. Proposed Action

    For the reasons discussed above, the EPA is proposing to approve, under CAA section 110(k)(3), CARB's submittal dated December 20, 2013 of the San Joaquin Valley 2013 Ozone Plan as a revision to the California SIP.36 In so doing, the EPA is proposing to approve the following elements of the plan as meeting the specified requirements for the revoked 1-hour ozone standard:

    36 In our final action, we also intend to remove a certain paragraph from the “Identification of Plan” section of 40 CFR part 52 for the State of California. In withdrawing our approval of the 2004 Ozone Plan, as revised and clarified, 77 FR 70376 (November 26, 2012), we inadvertently failed to remove 40 CFR 52.220(c)(371) which codified our March 8, 2010 final approval of the “2008 Clarifications” for the 2004 San Joaquin Valley (1-hour ozone) plan.

    • RACM demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17);

    • ROP demonstrations as meeting the requirements of CAA section 172(c)(2) and 182(c)(2)(B), and 40 CFR 51.1105(a)(1) and 51.1100(o)(4);

    • Attainment demonstration as meeting the requirements of CAA section 182(c)(2)(A), and 40 CFR 51.1105(a)(1) and 51.1100(o)(12);

    • ROP contingency measures as meeting the requirements of CAA sections 182(c)(9) and 40 CFR 51.1105(a)(1) and 51.1100(o)(13); and

    • Provisions for clean fuels or advanced control technology for boilers as meeting the requirements of CAA section 182(e)(3) and 40 CFR 51.1105(a)(1) and 51.1100(o)(6).

    The EPA is also proposing to approve the 2013 Ozone Plan as meeting the specified requirements for the revoked 1-hour ozone standard and the revoked 1997 8-hour ozone standard:

    • VMT emissions offset demonstrations as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

    The EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve a state plan as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”

    Eight Indian tribes are located within the boundaries of the San Joaquin Valley air quality planning area for the 1-hour ozone and 1997 8-hours ozone standards: The Big Sandy Rancheria of Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the North Fork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Rancheria of the Tachi Yokut Tribe, the Table Mountain Rancheria of California, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation.

    The EPA's proposed approval of the various SIP elements submitted by CARB to address the 1-hour ozone and 1997 8-hours ozone standards in the San Joaquin Valley would not have tribal implications because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed SIP approvals do not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, the EPA has concluded that the proposed action will not have tribal implications for the purposes of Executive Order 13175, and would not impose substantial direct costs upon the tribes, nor would it preempt Tribal law. We note that none of the tribes located in the San Joaquin Valley has requested eligibility to administer programs under the CAA.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental regulations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 24, 2015. Alexis Strauss, Acting Regional Administrator, EPA Region 9.
    [FR Doc. 2016-00089 Filed 1-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 70 [EPA-R07-OAR-2015-0790; FRL-9941-02-Region 7] Approval of Missouri's Air Quality Implementation Plans; Reporting Emission Data, Emission Fees and Process Information AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve revisions to the Operating Permits Program for the State of Missouri submitted on March 16, 2015. These revisions update the emissions fee for permitted sources as set by Missouri Statute from $40 to $48 per ton of air pollution emitted annually, effective January 1, 2016.

    DATES:

    Comments on this proposed action must be received in writing by February 16, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0790, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Krabbe, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7991, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this Federal Register, EPA is approving the state's Title V revision to 10 C.S.R. 10-6.110 “Reporting Emission Data, Emission Fees, and Process Information” as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    40 CFR Part 70

    Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: December 23, 2015. Mark Hague, Regional Administrator, Region 7.
    [FR Doc. 2016-00190 Filed 1-14-16; 8:45 am] BILLING CODE 6560-50-P
    81 10 Friday, January 15, 2016 Notices COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Indiana Advisory Committee To Begin Planning a Series of Public Hearings To Study Civil Rights and the School to Prison Pipeline in Indiana AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Indiana Advisory Committee (Committee) will hold a meeting on Wednesday, February 03, 2016, from 11:00 a.m.-12:00 p.m. EST for the purpose of reviewing testimony received during their January 20, 2016 Web hearing, and finalizing preparations for their February 17, 2016 hearing on Civil Rights and the School to Prison Pipeline in Indiana.

    Members of the public may listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-437-9445 conference ID: 3383741. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also invited to make statements during the open comment period at the end of the meeting. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days after the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Administrative Assistant, Carolyn Allen at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

    Records and documents discussed during the meeting will be available for public viewing prior to and following the meeting at https://database.faca.gov/committee/meetings.aspx?cid=247 and following the links for “Meeting Details” and then “Documents.” Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda 1. Welcome and Roll Call 2. Debriefing and Review of January 20 Web Hearing 3. Preparatory Discussion and Review Regarding Public Hearing “Civil Rights and the School to Prison Pipeline in Indiana”
    a. Agenda of Panelists b. Location c. Date and Time d. Schedule of Events e. Other logistics 4. Open Comment 5. Adjournment DATES:

    The meeting will be held on Wednesday February 3, 2016, from 11:00 a.m.-12:00 p.m. EST.

    Public Call Information:

    Dial: 888-437-9445 Conference ID: 3383741 FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at 312-353-8311 or [email protected]

    Dated: January 11, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-00688 Filed 1-14-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Request AGENCY:

    Bureau of Industry and Security.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that the Bureau of Industry and Security (BIS), Department of Commerce, will submit for the Office of Management and Budget (OMB) review, a request for an emergency extension of currently approved Information collection requests which will expire on January 31, 2016. The extension is being sought to evaluate the need for and scope of the existing instruments. The Agency expects that OMB will approve these emergency extensions by January 31, 2016 and approve any revised instruments (after appropriate notice and public comment periods).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093, [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    Over the years, BIS has worked with other Government agencies and the affected public to identify areas where export licensing requirements may be relaxed without jeopardizing U.S. national security or foreign policy. Many of these relaxations have taken the form of licensing exceptions and exclusions. Some of these license exceptions and exclusions have a reporting or recordkeeping requirement to enable the Government to continue to monitor exports of these items. Exporters may choose to utilize the license exception and accept the reporting or recordkeeping burden in lieu of submitting a license application.

    II. Method of Collection

    Electronic Information on Individual ICRs for Which an Emergency Extension Is Requested:

    Title of Collections:

    1. Simple Network Application Process and Multi-purpose Application Form.

    2. Offsets in Military Exports.

    3. Licensing Exemptions and Exclusions.

    III. Data

    1. Simple Network Application Process and Multi-purpose Application Form.

    OMB Control Number: 0694-0088.

    Form Number: None.

    Type of Review: Extension of a currently approved information collection.

    Affected Public: Non-profit institutions; State, local, or tribal government; business or other for-profit organizations.

    Estimated Number of Respondents: 64,612.

    Estimated Time per Response: 0.49 hours.

    Estimated Total Annual Burden Hours: 31,833.

    Estimated Total Annual Cost to Public: $0.

    2. Offsets in Military Exports.

    OMB Control Number: 0694-0084.

    Form Number: None.

    Type of Review: Extension of a currently approved information collection.

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 30.

    Estimated Time per Response: 12 hours.

    Estimated Total Annual Burden Hours: 360 hours.

    Estimated Total Annual Cost to Public: $0.

    3. License Exemptions and Exclusions.

    OMB Control Number: 0694-0137.

    Form Number: None.

    Type of Review: Extension of a currently approved information collection.

    Affected Public: Non-profit institutions; State, local, or tribal government; business or other for-profit organizations.

    Estimated Number of Respondents: 19,738.

    Estimated Time per Response: 1.52 hours.

    Estimated Total Annual Burden Hours: 29,998.

    Estimated Total Annual Cost to Public: $0.

    Dated: January 12, 2016. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2016-00718 Filed 1-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Order Renewing Order Temporarily Denying Export Privileges Mahan Airways, Mahan Tower, No. 21, Azadegan St., M.A. Jenah Exp. Way, Tehran, Iran; Pejman Mahmood Kosarayanifard, a/k/a Kosarian Fard, P.O. Box 52404, Dubai, United Arab Emirates; Mahmoud Amini, G#22 Dubai Airport Free Zone, P.O. Box 393754, Dubai, United Arab Emirates and P.O. Box 52404, Dubai, United Arab Emirates and Mohamed Abdulla Alqaz Building, Al Maktoum Street, Al Rigga, Dubai, United Arab Emirates; Kerman Aviation, a/k/a GIE Kerman Aviation, 42 Avenue Montaigne 75008, Paris, France; Sirjanco Trading LLC, P.O. Box 8709, Dubai, United Arab Emirates; Ali Eslamian, 33 Cavendish Square, 4th Floor, London, W1G0PW, United Kingdom and 2 Bentinck Close, Prince Albert Road St. Johns Wood, London NW87RY, United Kingdom; Mahan Air General Trading LLC, 19th Floor Al Moosa Tower One, Sheik Zayed Road, Dubai 40594, United Arab Emirates; Skyco (UK, Ltd., 33 Cavendish Square, 4th Floor, London, W1G 0PV, United Kingdom; Equipco (UK, Ltd., 2 Bentinck Close, Prince Albert Road, London, NW8 7RY, United Kingdom; Mehdi Bahrami, Mahan Airways—Istanbul Office, Cumhuriye Cad. Sibil Apt No: 101 D:6, 34374 Emadad, Sisli Istanbul, Turkey; Al Naser Airlines, a/k/a al-Naser Airlines, a/k/a Alnaser Airlines and Air Freight Ltd., Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq and Al Amirat Street, Section 309, St. 3/H.20, Al Mansour, Baghdad, Iraq and P.O. Box 28360, Dubai, United Arab Emirates and P.O. Box 911399, Amman 11191, Jordan; Ali Abdullah Alhay, a/k/a Ali Alhay, a/k/a Ali Abdullah Ahmed Alhay, Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq and Anak Street, Qatif, Saudi Arabia 61177; Bahar Safwa General Trading, P.O. Box 113212, Citadel Tower, Floor-5, Office #504, Business Bay, Dubai, United Arab Emirates and P.O. Box 8709, Citadel Tower, Business Bay, Dubai, United Arab Emirates; Sky Blue Bird Group, a/k/a Sky Blue Bird Aviation, a/k/a Sky Blue Bird Ltd, a/k/a Sky Blue Bird FZC, P.O. Box 16111, Ras Al Khaimah Trade Zone, United Arab Emirates; Issam Shammout, a/k/a Muhammad Isam Muhammad, Anwar Nur Shammout, a/k/a Issam Anwar, Philips Building, 4th Floor, Al Fardous Street, Damascus, Syria and Al Kolaa, Beirut, Lebanon 151515 and 17-18 Margaret Street, 4th Floor, London, W1W 8RP, United Kingdom and Cumhuriyet Mah. Kavakli San St. Fulya, Cad. Hazar Sok. No.14/A Silivri, Istanbul, Turkey.

    Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (2015) (“EAR” or the “Regulations”),1 I hereby grant the request of the Office of Export Enforcement (“OEE”) to renew the July 13, 2015 Temporary Denial Order (the “TDO”). The July 13, 2015 Order denied the export privileges of Mahan Airways, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco (UK) Ltd., Equipco (UK) Ltd., Mehdi Bahrami, Al Naser Airlines, Ali Abdullah Alhay, Bahar Safwa General Trading, Sky Blue Bird Group, and Issam Shammout.2 I find that renewal of the TDO is necessary in the public interest to prevent an imminent violation of the EAR.

    1 The Regulations, currently codified at 15 CFR parts 730-774 (2015), originally issued pursuant to the Export Administration Act of 1979. Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 7, 2015 (80 FR 48,223 (Aug. 11, 2015)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

    2 See note 3, infra.

    I. Procedural History

    On March 17, 2008, Darryl W. Jackson, the then-Assistant Secretary of Commerce for Export Enforcement (“Assistant Secretary”), signed a TDO denying Mahan Airways' export privileges for a period of 180 days on the grounds that its issuance was necessary in the public interest to prevent an imminent violation of the Regulations. The TDO also named as denied persons Blue Airways, of Yerevan, Armenia (“Blue Airways of Armenia”), as well as the “Balli Group Respondents,” namely, Balli Group PLC, Balli Aviation, Balli Holdings, Vahid Alaghband, Hassan Alaghband, Blue Sky One Ltd., Blue Sky Two Ltd., Blue Sky Three Ltd., Blue Sky Four Ltd., Blue Sky Five Ltd., and Blue Sky Six Ltd., all of the United Kingdom. The TDO was issued ex parte pursuant to Section 766.24(a), and went into effect on March 21, 2008, the date it was published in the Federal Register.

    The TDO subsequently has been renewed in accordance with Section 766.24(d), including most recently on July 13, 2015.3 As of March 9, 2010, the Balli Group Respondents and Blue Airways were no longer subject to the TDO. As part of the February 25, 2011 TDO renewal, Gatewick LLC (a/k/a Gatewick Freight and Cargo Services, a/k/a Gatewick Aviation Services), Mahmoud Amini, and Pejman Mahmood Kosarayanifard (“Kosarian Fard”) were added as related persons in accordance with Section 766.23 of the Regulations.4 On July 1, 2011, the TDO was modified by adding Zarand Aviation as a respondent in order to prevent an imminent violation.5 As part of the August 24, 2011 renewal, Kerman Aviation, Sirjanco Trading LLC, and Ali Eslamian were added to the TDO as related persons. Mahan Air General Trading LLC, Skyco (UK) Ltd., and Equipco (UK) Ltd. were added as related persons on April 9, 2012. Mehdi Bahrami was added to the TDO as a related person as part of the February 4, 2013 renewal order.

    3 The July 13, 2015 Order was published in the Federal Register on July 28, 2015 (80 Fed Reg. 44,930, Jul. 28, 2015). The TDO previously had been renewed on September 17, 2008, March 16, 2009, September 11, 2009, March 9, 2010, September 3, 2010, February 25, 2011, August 24, 2011, February 15, 2012, August 9, 2012, February 4, 2013, July 31, 2013, January 24, 2014, July 22, 2014, and January 16, 2015. The August 24, 2011 renewal followed the modification of the TDO on July 1, 2011, which added Zarand Aviation as a respondent. The July 13, 2015 renewal followed the modification of the TDO on May 21, 2015, which added Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading as respondents. Each renewal or modification order was published in the Federal Register.

    4 On August 13, 2014, BIS and Gatewick LLC resolved administrative charges against Gatewick, including a charge for acting contrary to the terms of a BIS denial order (15 CFR 764.2(k)). In addition to the payment of a civil penalty, the settlement includes a seven-year denial order. The first two years of the denial period are active, with the remaining five years suspended on condition that Gatewick LLC pays the civil penalty in full and timely fashion and commits no further violation of the Regulations during the seven-year denial period. The Gatewick LLC Final Order was published in the Federal Register on August 20, 2014. See 79 FR 49283 (Aug. 20, 2014).

    5 As of July 22, 2014, Zarand Aviation was no longer subject to the TDO.

    On May 21, 2015, the TDO was modified to add Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading as respondents. Sky Blue Bird Group and its chief executive officer Issam Shammout were added to the TDO as related persons as part of the July 13, 2015 renewal order.6

    6 The U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) designated Sky Blue Bird and Issam Shammout as Specially Designated Global Terrorists (“SDGTs”) on May 21, 2015, pursuant to Executive Order 13324, for “providing support to Iran's Mahan Air.” See 80 FR 30762 (May 29, 2015).

    On December 18, 2015, BIS, through its Office of Export Enforcement (“OEE”), submitted a written request for renewal of the TDO. The written request was made more than 20 days before the scheduled expiration of the current TDO, which issued on July 13, 2015.7 Notice of the renewal request also was provided to Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading in accordance with Sections 766.5 and 766.24(d) of the Regulations. No opposition to the renewal of the TDO has been received. Furthermore, no appeal of the related person determinations I made as part of the September 3, 2010, February 25, 2011, August 24, 2011, April 9, 2012, February 4, 2013, and July 13, 2015 renewal or modification orders has been made by Kosarian Fard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco (UK) Ltd., Equipco (UK) Ltd., Mehdi Bahrami, Sky Blue Bird Group, or Issam Shammout.8

    7 The May 21, 2015 modification order did not affect the expiration date of the January 16, 2015 Order.

    8 A party named or added as a related person may not oppose the issuance or renewal of the underlying temporary denial order, but may file an appeal of the related person determination in accordance with Section 766.23(c).

    II. Renewal of the TDO A. Legal Standard

    Pursuant to Section 766.24, BIS may issue or renew an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1) and 776.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.” Id. As to the likelihood of future violations, BIS may show that the violation under investigation or charge “is significant, deliberate, covert and/or likely to occur again, rather than technical or negligent [.]” Id. A “lack of information establishing the precise time a violation may occur does not preclude a finding that a violation is imminent, so long as there is sufficient reason to believe the likelihood of a violation.” Id.

    B. The TDO and BIS's Request for Renewal

    OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and the TDO renewals in this matter and the evidence developed over the course of this investigation indicating a blatant disregard of U.S. export controls and the TDO. The initial TDO was issued as a result of evidence that showed that Mahan Airways and other parties engaged in conduct prohibited by the EAR by knowingly re-exporting to Iran three U.S.-origin aircraft, specifically Boeing 747s (“Aircraft 1-3”), items subject to the EAR and classified under Export Control Classification Number (“ECCN”) 9A991.b, without the required U.S. Government authorization. Further evidence submitted by BIS indicated that Mahan Airways was involved in the attempted re-export of three additional U.S.-origin Boeing 747s (“Aircraft 4-6”) to Iran.

    As discussed in the September 17, 2008 renewal order, evidence presented by BIS indicated that Aircraft 1-3 continued to be flown on Mahan Airways' routes after issuance of the TDO, in violation of the Regulations and the TDO itself.9 It also showed that Aircraft 1-3 had been flown in further violation of the Regulations and the TDO on the routes of Iran Air, an Iranian Government airline. Moreover, as discussed in the March 16, 2009, September 11, 2009 and March 9, 2010 Renewal Orders, Mahan Airways registered Aircraft 1-3 in Iran, obtained Iranian tail numbers for them (EP-MNA, EP-MNB, and EP-MNE, respectively), and continued to operate at least two of them in violation of the Regulations and the TDO,10 while also committing an additional knowing and willful violation when it negotiated for and acquired an additional U.S.-origin aircraft. The additional acquired aircraft was an MD-82 aircraft, which subsequently was painted in Mahan Airways' livery and flown on multiple Mahan Airways' routes under tail number TC-TUA.

    9 Engaging in conduct prohibited by a denial order violates the Regulations. 15 CFR 764.2(a) and (k).

    10 The third Boeing 747 appeared to have undergone significant service maintenance and may not have been operational at the time of the March 9, 2010 renewal order.

    The March 9, 2010 Renewal Order also noted that a court in the United Kingdom (“U.K.”) had found Mahan Airways in contempt of court on February 1, 2010, for failing to comply with that court's December 21, 2009 and January 12, 2010 orders compelling Mahan Airways to remove the Boeing 747s from Iran and ground them in the Netherlands. Mahan Airways and the Balli Group Respondents had been litigating before the U.K. court concerning ownership and control of Aircraft 1-3. In a letter to the U.K. court dated January 12, 2010, Mahan Airways' Chairman indicated, inter alia, that Mahan Airways opposes U.S. Government actions against Iran, that it continued to operate the aircraft on its routes in and out of Tehran (and had 158,000 “forward bookings” for these aircraft), and that it wished to continue to do so and would pay damages if required by that court, rather than ground the aircraft.

    The September 3, 2010 renewal order discussed the fact that Mahan Airways' violations of the TDO extended beyond operating U.S.-origin aircraft and attempting to acquire additional U.S.-origin aircraft. In February 2009, while subject to the TDO, Mahan Airways participated in the export of computer motherboards, items subject to the Regulations and designated as EAR99, from the United States to Iran, via the United Arab Emirates (“UAE”), in violation of both the TDO and the Regulations, by transporting and/or forwarding the computer motherboards from the UAE to Iran. Mahan Airways' violations were facilitated by Gatewick LLC, which not only participated in the transaction, but also has stated to BIS that it acted as Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE.

    Moreover, in a January 24, 2011 filing in the U.K. court, Mahan Airways asserted that Aircraft 1-3 were not being used, but stated in pertinent part that the aircraft were being maintained in Iran especially “in an airworthy condition” and that, depending on the outcome of its U.K. court appeal, the aircraft “could immediately go back into service . . . on international routes into and out of Iran.” Mahan Airways' January 24, 2011 submission to U.K. Court of Appeal, at p. 25, ¶¶ 108, 110. This clearly stated intent, both on its own and in conjunction with Mahan Airways' prior misconduct and statements, demonstrated the need to renew the TDO in order to prevent imminent future violations. Two of these three 747s subsequently were removed from Iran and are no longer in Mahan Airway's possession. The third of these 747s, with Manufacturer's Serial Number (“MSN”) 23480 and Iranian tail number EP-MNE, remained in Iran under Mahan's control. Pursuant to Executive Order 13324, it was designated a Specially Designated Global Terrorist (“SDGT”) by the U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) on September 19, 2012.11 Furthermore, as discussed in the February 4, 2013 Order, open source information indicated that this 747, painted in the livery and logo of Mahan Airways, had been flown between Iran and Syria, and was suspected of ferrying weapons and/or other equipment to the Syrian Government from Iran's Islamic Revolutionary Guard Corps. Open source information showed that this aircraft had flown from Iran to Syria as recently as June 30, 2013, and continues to show that it remains in active operation in Mahan Airways' fleet.

    11See http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/pages/20120919.aspx.

    In addition, as first detailed in the July 1, 2011 and August 24, 2011 orders, and discussed in subsequent renewal orders in this matter, Mahan Airways also continued to evade U.S. export control laws by operating two Airbus A310 aircraft, bearing Mahan Airways' livery and logo, on flights into and out of Iran.12 At the time of the July 1, 2011 and August 24, 2011 Orders, these Airbus A310s were registered in France, with tail numbers F-OJHH and F-OJHI, respectively.13

    12 The Airbus A310s are powered with U.S.-origin engines. The engines are subject to the EAR and classified under Export Control Classification (“ECCN”) 9A991.d. The Airbus A310s contain controlled U.S.-origin items valued at more than 10 percent of the total value of the aircraft and as a result are subject to the EAR. They are classified under ECCN 9A991.b. The export or reexport of these aircraft to Iran requires U.S. Government authorization pursuant to Sections 742.8 and 746.7 of the Regulations.

    13 OEE subsequently presented evidence that after the August 24, 2011 renewal, Mahan Airways worked along with Kerman Aviation and others to de-register the two Airbus A310 aircraft in France and to register both aircraft in Iran (with, respectively, Iranian tail numbers EP-MHH and EP-MHI). It was determined subsequent to the February 15, 2012 renewal order that the registration switch for these A310s was cancelled and that Mahan Airways then continued to fly the aircraft under the original French tail numbers (F-OJHH and F-OJHI, respectively). Both aircraft apparently remain in Mahan Airways' possession.

    The August 2012 renewal order also found that Mahan Airways had acquired another Airbus A310 aircraft subject to the Regulations, with MSN 499 and Iranian tail number EP-VIP, in violation of the TDO and the Regulations.14 On September 19, 2012, all three Airbus A310 aircraft (tail numbers F-OJHH, F-OJHI, and EP-VIP) were designated as SDGTs.15

    14 See note 12, supra.

    15See http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/pages/20120919.aspx. Mahan Airways was previously designated by OFAC as a SDGT on October 18, 2011. 77 FR 64,427 (October 18, 2011).

    The February 4, 2013 Order laid out further evidence of continued and additional efforts by Mahan Airways and other persons acting in concert with Mahan, including Kral Aviation and another Turkish company, to procure U.S.-origin engines—two GE CF6-50C2 engines, with MSNs 517621 and 517738, respectively—and other aircraft parts in violation of the TDO and the Regulations.16 The February 4, 2013 renewal order also added Mehdi Bahrami as a related person in accordance with Section 766.23 of the Regulations. Bahrami, a Mahan Vice-President and the head of Mahan's Istanbul Office, also was involved in Mahan's acquisition of the original three Boeing 747s (Aircraft 1-3) that resulted in the original TDO, and has had a business relationship with Mahan dating back to 1997.

    16 Kral Aviation was referenced in the February 4, 2013 Order as “Turkish Company No. 1.” Kral Aviation purchased a GE CF6-50C2 aircraft engine (MSN 517621) from the United States in July 2012, on behalf of Mahan Airways. OEE was able to prevent this engine from reaching Mahan by issuing a redelivery order to the freight forwarder in accordance with Section 758.8 of the Regulations. OEE also issued Kral Aviation a redelivery order for the second CF6-50C2 engine (MSN 517738) on July 30, 2012. The owner of the second engine subsequently cancelled the item's sale to Kral Aviation. In September 2012, OEE was alerted by a U.S. exporter that another Turkish company (“Turkish Company No. 2”) was attempting to purchase aircraft spare parts intended for re-export by Turkish Company No. 2 to Mahan Airways. See February 4, 2013 Order.

    On December 31, 2013, Kral Aviation was added to BIS's Entity List, Supplement No. 4 to Part 744 of the Regulations. See 78 FR 75458 (Dec. 12, 2013). Companies and individuals are added to the Entity List for engaging in activities contrary to the national security or foreign policy interests of the United States. See 15 CFR 744.11.

    The July 31, 2013 Order detailed additional evidence obtained by OEE showing efforts by Mahan Airways to obtain another GE CF6-50C2 aircraft engine (MSN 528350) from the United States via Turkey. Multiple Mahan employees, including Mehdi Bahrami, were involved in or aware of matters related to the engine's arrival in Turkey from the United States, plans to visually inspect the engine, and prepare it for shipment from Turkey.

    Mahan sought to obtain this U.S.-origin engine through Pioneer Logistics Havacilik Turizm Yonetim Danismanlik (“Pioneer Logistics”), an aircraft parts supplier located in Turkey, and its director/operator, Gulnihal Yegane, a Turkish national who previously had conducted Mahan related business with Mehdi Bahrami and Ali Eslamian. Moreover, as referenced in the July 31, 2013 Order, a sworn affidavit by Kosol Surinanda, also known as Kosol Surinandha, Managing Director of Mahan's General Sales Agent in Thailand, stated that the shares of Pioneer Logistics for which he was the listed owner were “actually the property of and owned by Mahan.” He further stated that he held “legal title to the shares until otherwise required by Mahan” but would “exercise the rights granted to [him] exactly and only as instructed by Mahan and [his] voteand/or decisions [would] only and exclusively reflect the wills and demands of Mahan[.]” 17

    17 Pioneer Logistics, Gulnihal Yegane, and Kosol Surinanda also were added to the Entity List on December 12, 2013. See 78 FR 75458 (Dec. 12, 2013).

    The January 24, 2014 Order outlined OEE's continued investigation of Mahan Airways' activities and detailed an attempt by Mahan, which OEE thwarted, to obtain, via an Indonesian aircraft parts supplier, two U.S.-origin Honeywell ALF-502R-5 aircraft engines (MSNs LF5660 and LF5325), items subject to the Regulations, from a U.S. company located in Texas. An invoice of the Indonesian aircraft parts supplier dated March 27, 2013, listed Mahan Airways as the purchaser of the engines and included a Mahan ship-to address. OEE also obtained a Mahan air waybill dated March 12, 2013, listing numerous U.S.-origin aircraft parts subject to the Regulations—including, among other items, a vertical navigation gyroscope, a transmitter, and a power control unit—being transported by Mahan from Turkey to Iran in violation of the TDO.

    The July 22, 2014 Order discussed open source evidence from the March-June 2014 time period regarding two BAE regional jets, items subject to the Regulations, that were painted in the livery and logo of Mahan Airways and operating under Iranian tail numbers EP-MOK and EP-MOI, respectively.18 In addition, aviation industry resources indicated that these aircraft were obtained by Mahan Airways in late November 2013 and June 2014, from Ukrainian Mediterranean Airline, a Ukrainian airline that was added to BIS's Entity List (Supplement No. 4 to Part 744 of the Regulations) on August 15, 2011, for acting contrary to the national security and foreign policy interests of the United States.19 OEE's on-going investigation indicates that both BAE regional jets remain active in Mahan's fleet, with open source information showing EP-MOI being used on flights into and out of Iran as recently as January 12, 2015. The continued operation of these aircraft by Mahan Airways violates the TDO.

    18 The BAE regional jets are powered with U.S.-origin engines. The engines are subject to the EAR and classified under ECCN 9A991.d. These aircraft contain controlled U.S.-origin items valued at more than 10 percent of the total value of the aircraft and as a result are subject to the EAR. They are classified under ECCN 9A991.b. The export or reexport of these aircraft to Iran requires U.S. Government authorization pursuant to Sections 742.8 and 746.7 of the Regulations.

    19See 76 FR 50407 (Aug. 15, 2011). The July 22, 2014 TDO renewal order also referenced two Airbus A320 aircraft painted in the livery and logo of Mahan Airways and operating under Iranian tail numbers EP-MMK and EP-MML, respectively. OEE's investigation also showed that Mahan obtained these aircraft in November 2013, from Khors Air Company, another Ukrainian airline that, like Ukrainian Mediterranean Airlines, was added to BIS's Entity List on August 15, 2011. Open source evidence indicates the two Airbus A320 aircraft may be been transferred by Mahan Airways to another Iranian airline in October 2014, and issued Iranian tail numbers EP-APE and EP-APF, respectively.

    The January 16, 2015 Order detailed evidence of additional attempts by Mahan Airways to acquire items subject the Regulations in further violation of the TDO. Specifically, in March 2014, OEE became aware of an inertial reference unit bearing serial number 1231 (“the IRU”) that had been sent to the United States for repair. The IRU is subject to the Regulations, classified under ECCN 7A103, and controlled for missile technology reasons. Upon closer inspection, it was determined that IRU came from or had been installed on an Airbus A340 aircraft bearing MSN 056. Further investigation revealed that as of approximately February 2014, this aircraft was registered under Iranian tail number EP-MMB and had been painted in the livery and logo of Mahan Airways.

    The January 16, 2015 Order described related efforts by the Departments of Justice and Treasury to further thwart Mahan's illicit procurement efforts. Specifically, on August 14, 2014, the United States Attorney's Office for the District of Maryland filed a civil forfeiture complaint for the IRU pursuant to 22 U.S.C. 401(b) that resulted in the court issuing an Order of Forfeiture on December 2, 2014. EP-MMB remains listed as active in Mahan Airways' fleet.

    Additionally, on August 29, 2014, OFAC blocked the property and interests in property of Asian Aviation Logistics of Thailand, a Mahan Airways affiliate or front company, pursuant to Executive Order 13224. In doing so, OFAC described Mahan Airway's use of Asian Aviation Logistics to evade sanctions by making payments on behalf of Mahan for the purchase of engines and other equipment.20

    20 See http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20140829.aspx. See 79 FR 55073 (Sep. 15, 2014). OFAC also blocked the property and property interests of Pioneer Logistics of Turkey on August 29, 2014. Id. Mahan Airways' use of Pioneer Logistics in an effort to evade the TDO and the Regulations was discussed in a prior renewal order, as summarized, supra, at 13-14. BIS added both Asian Aviation Logistics and Pioneer Logistics to the Entity List on December 12, 2013. See 78 FR 75458 (Dec. 12, 2013).

    The May 21, 2015 modification order detailed the acquisition of two aircraft, specifically an Airbus A340 bearing MSN 164 and an Airbus A321 bearing MSN 550, that were purchased by Al Naser Airlines in late 2014/early 2015 and are currently located in Iran under the possession, control, and/or ownership of Mahan Airways.21 The sales agreements for these two aircraft were signed by Ali Abdullah Alhay for Al Naser Airlines.22 Payment information reveals that multiple electronic funds transfers (“EFT”) were made by Ali Abdullah Alhay and Bahar Safwa General Trading in order to acquire MSNs 164 and 550.

    21 Both of these aircraft are powered by U.S.-origin engines that are subject to the Regulations and classified under ECCN 9A991.d. Both aircraft contain controlled U.S.-origin items valued at more than 10 percent of the total value of the aircraft and as a result are subject to the EAR regardless of their location. The aircraft are classified under ECCN 9A991.b. The export or re-export of these aircraft to Iran requires U.S. Government authorization pursuant to Sections 742.8 and 746.7 of the Regulations.

    22 Ali Abdullah Alhay is a 25% owner of Al Naser Airlines.

    The May 21, 2015 modification order also laid out evidence showing the respondents' attempts to obtain other controlled aircraft, including aircraft physically located in the United States in similarly-patterned transactions during the same recent time period. Transactional documents involving two Airbus A320s bearing MSNs 82 and 99, respectively, again showed Ali Abdullah Alhay signing sales agreements for Al Naser Airlines.23 A review of the payment information for these aircraft similarly revealed EFTs from Ali Abdullah Alhay and Bahar Safwa General Trading that follow the pattern described for MSNs 164 and 550, supra. MSNs 82 and 99 were detained by OEE Special Agents prior to their planned export from the United States.

    23 Both aircraft were physically located in the United States and therefore are subject to the Regulations pursuant to Section 734.3(a)(1). Moreover, these Airbus A320s are powered by U.S.-origin engines that are subject to the Regulations and classified under Export Control Classification Number ECCN 9A991.d. The Airbus A320s contain controlled U.S.-origin items valued at more than 10 percent of the total value of the aircraft and as a result are subject to the EAR regardless of the their location. The aircraft are classified under ECCN 9A991.b. The export or re-export of these aircraft to Iran requires U.S. Government authorization pursuant to Sections 742.8 and 746.7 of the Regulations.

    The July 13, 2015 Order outlined evidence showing that Al Naser Airlines' attempts to acquire aircraft on behalf of Mahan Airways extended beyond MSNs 164 and 550 to include a total of nine aircraft.24 Four of the aircraft, all of which are subject to the Regulations and were obtained by Mahan from Al Naser Airlines, had been issued the following Iranian tail numbers: EP-MMD (MSN 164), EP-MMG (MSN 383), EP-MMH (MSN 391) and EP-MMR (MSN 416), respectively.25 Publicly available flight tracking information provided evidence that at the time of the July 13, 2015 renewal, both EP-MMH and EP-MMR were being actively flown on routes into and out of Iran in violation of the TDO and Regulations.26

    24 This evidence included a press release dated May 9, 2015, that appeared on Mahan Airways' Web site and stated that Mahan “added 9 modern aircraft to its air fleet[,]” and that the newly acquired aircraft included eight Airbus A340s and one Airbus A321. See http://www.mahan.aero/en/mahan-air/press-room/44. The press release was subsequently removed from Mahan Airways' Web site. Publicly available aviation databases similarly showed that Mahan had obtained nine additional aircraft from Al Naser Airlines in May 2015, including MSNs 164 and 550. As also discussed in the July 13, 2015 renewal order, Sky Blue Bird Group, via Issam Shammout, was actively involved in Al Naser Airlines' acquisition of MSNs 164 and 550, and the attempted acquisition of MSNs 82 and 99 (which were detained by OEE).

    25 The Airbus A340s are powered by U.S.-origin engines that are subject to the Regulations and classified under ECCN 9A991.d. The Airbus A340s contain controlled U.S.-origin items valued at more than 10 percent of the total value of the aircraft and as a result are subject to the EAR regardless of the their location. The aircraft are classified under ECCN 9A991.b. The export or re-export of these aircraft to Iran requires U.S. Government authorization pursuant to Sections 742.8 and 746.7 of the Regulations.

    26 There is some publically available information indicating that the aircraft Mahan Airways is flying under Iranian tail number EP-MMR is now MSN 615, rather than MSN 416. Both aircraft are Airbus A340 aircraft that Mahan acquired from Al Naser Airlines in violation of the TDO and the Regulations. Moreover, both aircraft were designated as SDGTs by OFAC on May 21, 2015, pursuant to Executive Order 13324. See 80 FR 30762 (May 29, 2015).

    The December 18, 2015 renewal request highlights evidence that Mahan Airways continues to operate EP-MMH and EP-MMR on flights into and out of Iran in further violation of the TDO and Regulations. Evidence provided by OEE indicates that EP-MMD, another of the aircraft Mahan obtained from Al Naser Airlines as discussed in the July 13, 2015 renewal order, also is now in active service with Mahan and flew from Tehran, Iran to Bangkok, Thailand on January 4, 2016, and back to Iran on January 5, 2016. Additionally, publically available aviation databases and flight tracking information indicate that Mahan has acquired Iranian tail numbers for at least two more of the Airbus A340 aircraft it obtained from Al Naser Airlines: EP-MME (MSN 371) and EP-MMF (MSN 376), respectively. Moreover, both aircraft now bear Mahan Airways livery and logo, and since January 1, 2016, EP-MME has logged flights to and from Tehran, Iran involving various destinations, including Guangzhou, China and Dubai, United Arab Emirates.

    C. Findings

    Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the entire record, I find that the evidence presented by BIS convincingly demonstrates that the denied persons have acted in violation of the EAR and the TDO, that such violations have been significant, deliberate and covert, and that there is a likelihood of future violations. Therefore, renewal of the TDO is necessary to prevent imminent violation of the EAR and to give notice to companies and individuals in the United States and abroad that they should continue to cease dealing with Mahan Airways and the other denied persons under the TDO in connection with export and reexport transactions involving items subject to the EAR.

    IV. Order

    It is therefore ordered:

    First, that MAHAN AIRWAYS, Mahan Tower, No. 21, Azadegan St., M.A. Jenah Exp. Way, Tehran, Iran; PEJMAN MAHMOOD KOSARAYANIFARD A/K/A KOSARIAN FARD, P.O. Box 52404, Dubai, United Arab Emirates; MAHMOUD AMINI, G#22 Dubai Airport Free Zone, P.O. Box 393754, Dubai, United Arab Emirates, and P.O. Box 52404, Dubai, United Arab Emirates, and Mohamed Abdulla Alqaz Building, Al Maktoum Street, Al Rigga, Dubai, United Arab Emirates; KERMAN AVIATION A/K/A GIE KERMAN AVIATION, 42 Avenue Montaigne 75008, Paris, France; SIRJANCO TRADING LLC, P.O. Box 8709, Dubai, United Arab Emirates; ALI ESLAMIAN, 33 Cavendish Square, 4th Floor, London W1G0PW, United Kingdom, and 2 Bentinck Close, Prince Albert Road St. Johns Wood, London NW87RY, United Kingdom; MAHAN AIR GENERAL TRADING LLC, 19th Floor Al Moosa Tower One, Sheik Zayed Road, Dubai 40594, United Arab Emirates; SKYCO (UK) LTD., 33 Cavendish Square, 4th Floor, London, W1G 0PV, United Kingdom; EQUIPCO (UK) LTD., 2 Bentinck Close, Prince Albert Road, London, NW8 7RY, United Kingdom; and MEHDI BAHRAMI, Mahan Airways- Istanbul Office, Cumhuriye Cad. Sibil Apt No: 101 D:6, 34374 Emadad, Sisli Istanbul, Turkey; AL NASER AIRLINES A/K/A AL-NASER AIRLINES A/K/A ALNASER AIRLINES AND AIR FREIGHT LTD., Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq, and Al Amirat Street, Section 309, St. 3/H.20, Al Mansour, Baghdad, Iraq, and P.O. Box 28360, Dubai, United Arab Emirates, and P.O. Box 911399, Amman 11191, Jordan; ALI ABDULLAH ALHAY A/K/A ALI ALHAY A/K/A ALI ABDULLAH AHMED ALHAY, Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq, and Anak Street, Qatif, Saudi Arabia 61177; BAHAR SAFWA GENERAL TRADING, P.O. Box 113212, Citadel Tower, Floor-5, Office #504, Business Bay, Dubai, United Arab Emirates, and P.O. Box 8709, Citadel Tower, Business Bay, Dubai, United Arab Emirates; SKY BLUE BIRD GROUP A/K/A SKY BLUE BIRD AVIATION A/K/A SKY BLUE BIRD LTD A/K/A SKY BLUE BIRD FZC, P.O. Box 16111, Ras Al Khaimah Trade Zone, United Arab Emirates; and ISSAM SHAMMOUT A/K/A MUHAMMAD ISAM MUHAMMAD ANWAR NUR SHAMMOUT A/K/A ISSAM ANWAR, Philips Building, 4th Floor, Al Fardous Street, Damascus, Syria, and Al Kolaa, Beirut, Lebanon 151515, and 17-18 Margaret Street, 4th Floor, London, W1W 8RP, United Kingdom, and Cumhuriyet Mah. Kavakli San St. Fulya, Cad. Hazar Sok. No.14/A Silivri, Istanbul, Turkey, and when acting for or on their behalf, any successors or assigns, agents, or employees (each a “Denied Person” and collectively the “Denied Persons”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Export Administration Regulations (“EAR”), or in any other activity subject to the EAR including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.

    Second, that no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;

    B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;

    D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, that, after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to a Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order.

    Fourth, that this Order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology.

    In accordance with the provisions of Sections 766.24(e) of the EAR, Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and/or Bahar Safwa General Trading may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022. In accordance with the provisions of Sections 766.23(c)(2) and 766.24(e)(3) of the EAR, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco (UK) Ltd., Equipco (UK) Ltd., Mehdi Bahrami, Sky Blue Bird Group, and/or Issam Shammout may, at any time, appeal their inclusion as a related person by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.

    In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and/or Bahar Safwa General Trading as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.

    A copy of this Order shall be provided to Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading and each related person, and shall be published in the Federal Register. This Order is effective immediately and shall remain in effect for 180 days.

    Dated: January 7, 2016. David W. Mills, Assistant Secretary of Commerce for Export Enforcement.
    [FR Doc. 2016-00760 Filed 1-14-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-827] Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Turkey: Preliminary Negative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) preliminarily determines that de minimis countervailable subsidies are being provided to producers and exporters of certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Turkey (Turkey). The period of investigation is January 1, 2014, through December 31, 2014. We invite interested parties to comment on this preliminary determination.

    DATES:

    Effective Date: January 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Emily Halle or Gene Calvert, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-0176, or (202) 482-3586, respectively.

    SUPPLEMENTARY INFORMATION: Scope of the Investigation

    The products covered by this investigation are hot-rolled steel products from Turkey. For a complete description of the scope of this investigation, see Appendix II.

    Methodology

    The Department is conducting this countervailing duty (CVD) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum. A list of topics discussed in the Preliminary Decision Memorandum is included as Appendix I to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic version are identical in content.

    Alignment

    As noted in the Preliminary Decision Memorandum,1 in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final CVD determination in this investigation with the final determination in the companion AD investigation of hot-rolled steel from Turkey based on a request made by Petitioners. Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than May 22, 2016, unless postponed.

    1See Department Memorandum, “Decision Memorandum for the Preliminary Negative Countervailing Duty Determination: Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products from the Republic of Turkey,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Preliminary Determination

    In accordance with section 703(d)(1)(A)(i) of the Act, we calculated a CVD rate for each individually investigated producer/exporter of the subject merchandise. We preliminarily determine that de minimis countervailable subsides are being provided with respect to the manufacture, production or exportation of the subject merchandise. Consistent with section 703(b)(4)(A) of the Act, we have disregarded de minimis rates. Consistent with section 703(d) of the Act, we have not calculated an all-others rate because we have not reached an affirmative preliminary determination. We preliminarily determine the countervailable subsidy rates to be:

    Company Subsidy rate Colakoglu Dis Ticaret A.S * 0.38 Eregli Demir ve Celik Fabrikalari T.A.S * 0.23 * Percent (de minimis).

    Because we preliminarily determine that the CVD rates in this investigation are de minimis, we will not direct U.S. Customs and Border Protection to suspend liquidation of entries of subject merchandise.

    Verification

    As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by the respondents prior to making our final determination.

    International Trade Commission Notification

    In accordance with section 703(f) of the Act, we will notify the International Trade Commission (ITC) of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.

    In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.

    Disclosure and Public Comment

    The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.2 Interested parties may submit case and rebuttal briefs, as well as request a hearing.3 For a schedule of the deadlines for filing case briefs, rebuttal briefs, and hearing requests, see the Preliminary Decision Memorandum.

    2See 19 CFR 351.224(b).

    3See 19 CFR 351.309(c)-(d), 19 CFR 351.310(c).

    This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: January 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope Comments IV. Scope of the Investigation V. Alignment VI. Injury Test VII. Subsidies Valuation VIII. Benchmarks and Discount Rates IX. Analysis of Programs X. Disclosure and Public Comment XI. Conclusion Appendix II Scope of the Investigation

    The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness of less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieve subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping 4 or countervailing duty 5 orders on Certain Cut-To-Length Carbon-Quality Steel Plate Products From the Republic of Korea (A-580-836; C-580-837), and

    4Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea, 65 FR 6585 (February 10, 2000).

    5Notice of Amended Final Determinations: Certain Cut-to-Length Carbon-Quality Steel Plate From India and the Republic of Korea; and Notice of Countervailing Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate From France, India, Indonesia, Italy, and the Republic of Korea, 65 FR 6587 (February 10, 2000).

    (2) Where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten, or • 0.80 percent of molybdenum, or • 0.10 percent of niobium, or • 0.30 percent of vanadium, or • 0.30 percent of zirconium.

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:

    • Universal mill plates (i.e., hot-rolled, flat-rolled products not in coils that have been rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, of a thickness not less than 4.0 mm, and without patterns in relief);

    • Products that have been cold-rolled (cold-reduced) after hot-rolling; 6

    6 For purposes of this scope exclusion, rolling operations such as a skin pass, levelling, temper rolling or other minor rolling operations after the hot-rolling process for purposes of surface finish, flatness, shape control, or gauge control do not constitute cold-rolling sufficient to meet this exclusion.

    • Ball bearing steels; 7

    7 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 8 and

    8 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steels; 9

    9 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.

    The HTSUS subheadings above are provided for convenience and U.S. Customs and Border Protection purposes only. The written description of the scope of the investigation is dispositive.

    [FR Doc. 2016-00749 Filed 1-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-351-846] Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From Brazil: Preliminary Affirmative Determination and Alignment of Final Determination With Final Antidumping Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to producers and exporters of certain hot-rolled steel flat products (hot-rolled steel) from Brazil. The period of investigation is January 1, 2014, through December 31, 2014. We invite interested parties to comment on this preliminary determination.

    DATES:

    Effective date: January 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Nicholas Czajkowski or Lana Nigro, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1395 or (202) 482-1779, respectively.

    Scope of the Investigation

    The products covered by this investigation are hot-rolled steel flat products from Brazil. For a complete description of the scope of this investigation, see Appendix II.

    Methodology

    The Department is conducting this countervailing duty (CVD) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy, i.e., a financial contribution by an “authority” that gives rise to a benefit to the recipient, and that the subsidy is specific.1 For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum.2 A list of topics discussed in the Preliminary Decision Memorandum is included as Appendix I to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    1See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and section 771(5A) of the Act regarding specificity.

    2See Memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations; Re: Decision Memorandum for the Preliminary Determination in the Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products from Brazil, dated January 8, 2016.

    In making this preliminary determination, the Department relied, in part, on facts otherwise available.3 For further information, see “Use of Facts Otherwise Available” in the accompanying Preliminary Decision Memorandum.

    3See section 776(a) of the Act.

    Alignment

    As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final CVD determination in this investigation with the final determination in the companion antidumping duty (AD) investigation of hot-rolled steel from Brazil based on a request made by Petitioners.4 Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than May 22, 2016,5 unless postponed.

    4 AK Steel Corporation, ArcelorMittal USA LLC, Nucor Corporation, Steel Dynamics Inc., and the United States Steel Corporation (collectively, Petitioners). See letter from Petitioners, “Certain Hot-Rolled Steel Flat Products from Brazil and the Republic of Korea: Request to Align the Countervailing Duty Final Determinations with the Companion Antidumping Duty Final Determinations,” dated January 7, 2016 (Petitioners' Request for Alignment).

    5 The current deadline for the final AD determination, May 22, 2016, is a Sunday. Pursuant to Department practice, the signature date will be the next business day, which is Monday, May 23, 2016. See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

    Preliminary Determination

    In accordance with section 703(d)(1)(A)(i) of the Act, we calculated a CVD rate for each individually investigated respondent company. Section 705(c)(5)(A)(i) of the Act states that, for companies not individually investigated, we will determine an “all-others” rate equal to the weighted-average countervailable subsidy rates established for exporters and producers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates determined entirely under section 776 of the Act.

    Consistent with the Department's practice, we normally calculate the all-others rate based on the weighted average of the mandatory respondents' calculated subsidy rates.6 In this case however, the two mandatory respondents have the same rate. Therefore, it is unnecessary to calculate an all-others rate that is the weighted average of the mandatory respondents' rates. The all-others rate is the rate calculated for both mandatory respondents.

    6See, e.g., Countervailing Duty Investigation of Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Final Affirmative Determination, and Final Affirmative Critical Circumstances Determination, in Part, 80 FR 34888 (June 18, 2015).

    We preliminarily determine the countervailable subsidy rates to be:

    Company Subsidy rate
  • (percent)
  • Companhia Siderurgica Nacional (CSN) 7.42 Usinas Siderurgicas de Minas Gerais S.A. (Usiminas) 7.42 All-Others 7.42
    Suspension of Liquidation

    In accordance with section 703(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of hot-rolled steel from Brazil as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. Section 703(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. On December 9, 2015, we preliminarily found that critical circumstances exist for imports produced or exported by CSN and Usiminas.7 For CSN and Usiminas, in accordance with section 703(e)(2)(A) of the Act, suspension of liquidation of hot-rolled steel products from Brazil, as described in the “Scope of the Investigation” section, shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice, the date suspension of liquidation is first ordered. Because we preliminarily found critical circumstances do not exist for all other producers and exporters, we will begin suspension of liquidation for such firms on the date of publication of this notice in the Federal Register. In accordance with sections 703(d)(1)(B) and 703(e)(2)(A) of the Act, the Department will instruct CBP to require a cash deposit equal to the amounts indicated above.

    7See Antidumping Duty Investigations of Certain Hot-Rolled Steel Flat Products From Australia, Brazil, Japan, and the Netherlands and Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From Brazil: Preliminary Determinations of Critical Circumstances, 80 FR 76444 (December 9, 2015).

    Verification

    As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by the respondents prior to making our final determination.

    International Trade Commission Notification

    In accordance with section 703(f) of the Act, we will notify the International Trade Commission (ITC) of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.

    In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.

    Disclosure and Public Comment

    The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.8 Interested parties may submit case and rebuttal briefs, as well as request a hearing.9 For a schedule of the deadlines for filing case briefs, rebuttal briefs, and hearing requests, see the Preliminary Decision Memorandum.

    8See 19 CFR 351.224(b).

    9See 19 CFR 351.309(c)-(d), 19 CFR 351.310(c).

    This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: January 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Preliminary Determination of Critical Circumstances IV. Scope Comments V. Scope of the Investigation VI. Alignment VII. Injury Test VIII. Use of Facts Otherwise Available IX. Subsidies Valuation X. Analysis of Programs XI. Calculation of the All-Others Rate XII. ITC Notification XIII. Disclosure and Public Comment XIV. Verification XV. Conclusion Appendix II Scope of the Investigation

    The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness of less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieve subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping 10 or countervailing duty 11 orders on Certain Cut-To-Length Carbon-Quality Steel Plate Products From the Republic of Korea (A-580-836; C-580-837), and

    10Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea, 65 FR 6585 (February 10, 2000).

    11Notice of Amended Final Determinations: Certain Cut-to-Length Carbon-Quality Steel Plate From India and the Republic of Korea; and Notice of Countervailing Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate From France, India, Indonesia, Italy, and the Republic of Korea, 65 FR 6587 (February 10, 2000).

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten, or • 0.80 percent of molybdenum, or • 0.10 percent of niobium, or • 0.30 percent of vanadium, or • 0.30 percent of zirconium.

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:

    • Universal mill plates (i.e., hot-rolled, flat-rolled products not in coils that have been rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, of a thickness not less than 4.0 mm, and without patterns in relief);

    • Products that have been cold-rolled (cold-reduced) after hot-rolling; 12

    12 For purposes of this scope exclusion, rolling operations such as a skin pass, levelling, temper rolling or other minor rolling operations after the hot-rolling process for purposes of surface finish, flatness, shape control, or gauge control do not constitute cold-rolling sufficient to meet this exclusion.

    • Ball bearing steels; 13

    13 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels;14 and

    14 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steels;15

    15 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.

    The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.

    [FR Doc. 2016-00751 Filed 1-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-031] Certain Iron Mechanical Transfer Drive Components From the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective date: January 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Galantucci at (202) 482-2923, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On November 17, 2015, the Department of Commerce (the Department) initiated the countervailing duty (CVD) investigation of certain iron mechanical transfer drive components from the People's Republic of China.1 Currently, the preliminary determination is due no later than January 21, 2015.

    1See Certain Iron Mechanical Transfer Drive Components From the People's Republic of China: Initiation of Countervailing Duty Investigation, 80 FR 73722 (November 25, 2015).

    Postponement of the Preliminary Determination

    Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a CVD investigation within 65 days after the date on which the Department initiated the investigation. However, if the Department concludes that the parties concerned are cooperating, and that the case is extraordinarily complicated such that additional time is necessary to make the preliminary determination, section 703(c)(1)(B) of the Act allows the Department to postpone making the preliminary determination until no later than 130 days after the date on which the administering authority initiated the investigation. We have concluded that the parties concerned are cooperating and that the case is extraordinarily complicated, such that we will need more time to make the preliminary determination. Specifically, the Department finds that the instant case is extraordinarily complicated by reason of the number and complexity of the alleged countervailable subsidy practices, and the need to determine the extent to which particular alleged countervailable subsidies are used by individual manufacturers, producers and exporters.

    Additionally, the Department notes that we issued questionnaires to the respondents in this case on December 18, 2015. The due date for these questionnaires is January 25, 2016, which is after the unextended preliminary determination date. For these reasons, the Department will extend the deadline for completion of the preliminary determination by 65 days (i.e., 130 days after the date of initiation of this investigation). However, because 65 days following the current deadline falls on a Saturday, the new deadline is Monday, March 28, 2016.2

    2See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

    This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).3

    3 We acknowledge that the Department inadvertently did not notify the parties to this investigation of this postponement within the timeframe provided in section 703(c)(2) of the Act.

    Dated: January 11, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-00741 Filed 1-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-549-821] Polyethylene Retail Carrier Bags From Thailand: Rescission of Antidumping Duty Administrative Review in Part; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is rescinding its administrative review in part on polyethylene retail carrier bags from Thailand for the period of review (POR) August 1, 2014, through July 31, 2015.

    DATES:

    Effective date: January 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Andre Gziryan, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2201.

    SUPPLEMENTARY INFORMATION: Background

    On August 3, 2015, we published a notice of opportunity to request an administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand for the POR August 1, 2014, through July 31, 2015.1 On October 6, 2015, in response to timely requests from the petitioners 2 and in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.221(c)(1)(i), we initiated an administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand with respect to 45 companies.3 On December 18, 2015, the petitioners withdrew their request for an administrative review for 44 out of 45 companies.4 No other party requested a review.

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 80 FR 45952 (August 3, 2015).

    2 Polyethylene Retail Carrier Bag Committee and its individual members, Hilex Poly Co., LLC and Superbag Corporation (collectively, the petitioners).

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 60356 (October 6, 2015).

    4 The 44 companies for which the petitioners have withdrawn their request for a review are as follows: 2 P Work Co., Ltd., 2PK Interplas Co., Ltd., Angkapol Plastech Co., Ltd., Asia Industry Co., Ltd., Asian Packaging Limited Partnership, Bags and Gloves Co., Ltd., Completely Co., Ltd., C.P. Poly Industry Co., Ltd., CT Import-Export Co., Ltd., Dpac Inter. Corporation Co., Ltd., DTOP Co., Ltd., Ecoplas (Thailand) Co., Ltd., Elite Poly and Packaging Co., Ltd., Firstpack Co. Ltd., G.L.K. (Thailand) Co., Ltd., Green Smile Supply Co., Ltd., Hinwiset Packaging Limited Partnership, King Bag Co., Ltd., King Pac Industrial Co., Ltd., KPA Packing & Product Co., Ltd., Napa Plastic Co., Ltd., Naraipak Co., Ltd., NKD Intertrade Limited Partnership, NNN Packaging Limited Partnership, Northeast Pack Company Limited, P.C.S. International Company Limited, Pasiam Ltd., Partnership, PMC Innopack Co., Ltd., Poly Plast (Thailand) Co., Ltd., Poly World Co., Ltd., PPN Plaspack Limited Partnership, Prepack Thailand Co., Ltd., PSSP Plaspack Co., Ltd., SSGT Products Limited Partnership, Super Grip Co., Ltd., T.P. Plaspack Co., Ltd., T.T.P. Packaging (Thailand) Co., Ltd., Thantawan Industry Public Co., Ltd., Triple B Pack Co., Ltd., Triyamook Vanich Limited Partnership, Two Path Plaspack Co., Ltd., Udomrutpanich Limited Partnership, Win Win and Pro Pack Co. Ltd., and Winbest Industrial (Thailand) Co., Ltd. See letter from the petitioners to the Department, “Polyethylene Retail Carrier Bags from Thailand: Partial Withdrawal of Request for Administrative Review” (December 18, 2015). No withdrawal was requested for K. International Packing Co., Ltd.

    Rescission of Administrative Review in Part

    Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” Because the petitioners withdrew their review request in a timely manner, and because no other party requested a review of these companies, we are rescinding the administrative review in part with respect to the aforementioned 44 companies.

    Assessment

    The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the aforementioned companies, for which the review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP within 15 days after publication of this notice.

    Notifications to Importers

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification Regarding Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).

    Dated: January 8, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2016-00619 Filed 1-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-580-884] Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Preliminary Negative Determination and Alignment of Final Determination With Final Antidumping Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the “Department”) preliminarily determines that de minimis countervailable subsidies are being provided to producers/exporters of certain hot-rolled steel flat products (“hot-rolled steel”) from the Republic of Korea (“Korea”). The period of investigation is January 1, 2014, through December 31, 2014. We invite interested parties to comment on this preliminary determination.

    DATES:

    Effective date: January 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Katie Marksberry or Bob Palmer, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-7906 or (202) 482-9068, respectively.

    SUPPLEMENTARY INFORMATION: Scope of the Investigation

    The products covered by this investigation are certain hot-rolled steel flat products from Korea. For a complete description of the scope of this investigation, see Appendix II.

    Methodology

    The Department is conducting this countervailing duty (“CVD”) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the “Act”). For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum.1 A list of topics discussed in the Preliminary Decision Memorandum is included as Appendix I to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic version are identical in content.

    1See Memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations; Re: Decision Memorandum for the Preliminary Negative Determination: Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products from the Republic of Korea, dated January 8, 2015 (“Preliminary Decision Memorandum”).

    The Department notes that, in making this preliminary determination, we relied, in part, on facts otherwise available.2 For further information, see “Use of Facts Otherwise Available” in the accompanying Preliminary Decision Memorandum.

    2See section 776(a) of the Act.

    Alignment

    As noted in the Preliminary Decision Memorandum,3 in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final CVD determination in this investigation with the final determination in the companion AD investigation of hot-rolled steel from Korea based on a request made by Petitioners. Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than May 23, 2016, unless postponed.4

    3See Preliminary Decision Memorandum.

    4 We note that the current deadline for the final AD determination is May 22, 2016, which is a Sunday. Pursuant to Department practice, the signature date will be the next business day, which is Monday, March 9, 2016. See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

    Preliminary Determination

    In accordance with section 703(d)(1)(A)(i) of the Act, we calculated a CVD rate for each individually investigated producer/exporter of the subject merchandise. We preliminarily determine that de minimis countervailable subsides are being provided with respect to the manufacture, production or exportation of the subject merchandise. Consistent with section 703(b)(4)(A) of the Act, we have disregarded de minimis rates. Consistent with section 703(d) of the Act, we have not calculated an all-others rate because we have not reached an affirmative preliminarily determination. We preliminarily determine the countervailable subsidy rates to be:

    Company Subsidy rate POSCO and Daewoo International Corporation 0.17 Hyundai Steel Co., Ltd 0.63 Percent (de minimis).

    Because we preliminarily determine that the CVD rates in this investigation are de minimis, we will not direct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of entries of subject merchandise.

    Verification

    As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by the respondents prior to making our final determination.

    International Trade Commission Notification

    In accordance with section 703(f) of the Act, we will notify the International Trade Commission (“ITC”) of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.

    In accordance with section 705(b)(3) of the Act, if our final determination is affirmative, the ITC will make its final determination within 75 days after the Department makes its final determination.

    Disclosure and Public Comment

    The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.5 Interested parties may submit case and rebuttal briefs, as well as request a hearing.6 For a schedule of the deadlines for filing case briefs, rebuttal briefs, and hearing requests, see the Preliminary Decision Memorandum.

    5See 19 CFR 351.224(b).

    6See 19 CFR 351.309(c)-(d), 19 CFR 351.310(c).

    This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: January 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope Comments IV. Scope of the Investigation V. Injury Test VI. Use of Facts Otherwise Available VII. Subsidies Valuation VIII. Analysis of Programs IX. Disclosure and Public Comment X. Conclusion Appendix II Scope of the Investigation

    The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness of less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieve subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping 7 or countervailing duty 8 orders on Certain Cut-To-Length Carbon-Quality Steel Plate Products From the Republic of Korea (A-580-836; C-580-837), and

    7See Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea, 65 FR 6585 (February 10, 2000).

    8See Notice of Amended Final Determinations: Certain Cut-to-Length Carbon-Quality Steel Plate From India and the Republic of Korea; and Notice of Countervailing Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate From France, India, Indonesia, Italy, and the Republic of Korea, 65 FR 6587 (February 10, 2000).

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten, or • 0.80 percent of molybdenum, or • 0.10 percent of niobium, or • 0.30 percent of vanadium, or • 0.30 percent of zirconium.

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the hot-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these investigations unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:

    • Universal mill plates (i.e., hot-rolled, flat-rolled products not in coils that have been rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, of a thickness not less than 4.0 mm, and without patterns in relief);

    • Products that have been cold-rolled (cold-reduced) after hot-rolling; 9

    9 For purposes of this scope exclusion, rolling operations such as a skin pass, levelling, temper rolling or other minor rolling operations after the hot-rolling process for purposes of surface finish, flatness, shape control, or gauge control do not constitute cold-rolling sufficient to meet this exclusion.

    • Ball bearing steels; 10

    10 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 11 and

    11 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steels; 12

    12 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.

    The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.

    [FR Doc. 2016-00750 Filed 1-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE291 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Marine Geophysical Survey in the South Atlantic Ocean, January to March 2016 AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, we hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to Lamont-Doherty Earth Observatory (Lamont-Doherty), a component of Columbia University, in collaboration with the National Science Foundation (NSF), to take marine mammals, by harassment, in the South Atlantic Ocean, January through March 2016.

    DATES:

    Effective January 4 through March 31, 2016.

    ADDRESSES:

    A copy of the final Authorization and application and other supporting documents are available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, by telephoning the contacts listed here, or by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

    The NSF prepared a draft Environmental Analysis in accordance with Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” for their proposed federal action. The environmental analysis titled “Environmental Analysis of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the South Atlantic Ocean, Austral Summer 2016,” prepared by LGL, Ltd. environmental research associates, on behalf of NSF and Lamont-Doherty is available at the same internet address.

    NMFS prepared an Environmental Assessment (EA) titled, “Proposed Issuance of an Incidental Harassment Authorization to Lamont-Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in the South Atlantic Ocean, January-March 2016,” in accordance with NEPA and NOAA Administrative Order 216-6. To obtain an electronic copy of these documents, write to the previously mentioned address, telephone the contact listed here (see FOR FURTHER INFORMATION CONTACT), or download the files at: http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

    NMFS also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the survey and Authorization on marine species listed as threatened and endangered. The Biological Opinion is available online at: http://www.nmfs.noaa.gov/pr/consultations/opinions.htm.

    FOR FURTHER INFORMATION CONTACT:

    Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after NMFS provides a notice of a proposed authorization to the public for review and comment: (1) NMFS makes certain findings; and (2) the taking is limited to harassment.

    An Authorization shall be granted for the incidental taking of small numbers of marine mammals if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The Authorization must also set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat (i.e., mitigation); and requirements pertaining to the monitoring and reporting of such taking. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA at 16 U.S.C. 1362(18)(A) defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Summary of Request

    On July 29, 2015, NMFS received an application from Lamont-Doherty requesting that NMFS issue an Authorization for the take of marine mammals, incidental to Texas A&M University and the University of Texas conducting a seismic survey in the South Atlantic Ocean, January through March 2016. Following the initial application submission, Lamont-Doherty submitted a revised application with revised take estimates. NMFS considered the revised application adequate and complete on October 30, 2015.

    Lamont-Doherty proposes to conduct a two-dimensional (2-D), seismic survey on the R/V Marcus G. Langseth (Langseth), a vessel owned by NSF and operated on its behalf by Columbia University's Lamont-Doherty in international waters in the South Atlantic Ocean approximately 1,938 kilometers (km) (1,232 miles [mi]) southeast of the west coast of Brazil for approximately 22 days. The following specific aspect of the proposed activity has the potential to take marine mammals: Increased underwater sound generated during the operation of the seismic airgun array. We anticipate that take, by Level B harassment, of 38 species of marine mammals could result from the specified activity. Although unlikely, NMFS also anticipates that a small level of take by Level A harassment of 16 species of marine mammals could occur during the proposed survey.

    Description of the Specified Activity Overview

    Lamont-Doherty plans to use one source vessel, the Langseth, an array of 36 airguns as the energy source, a receiving system of seven ocean bottom seismometers (OBS), and a single 8-kilometer (km) hydrophone streamer. In addition to the operations of the airguns, Lamont-Doherty intends to operate a multibeam echosounder and a sub-bottom profiler continuously throughout the proposed survey. However, Lamont-Doherty will not operate the multibeam echosounder and sub-bottom profiler during transits to and from the survey area and in between transits to each of the five OBS tracklines (i.e., when the airguns are not operating).

    The purpose of the survey is to collect and analyze seismic refraction data from the Mid-Atlantic Ridge westward to the Rio Grande Rise to study the evolution of the South Atlantic Ocean crust on million-year timescales and the evolution and stability of low-spreading ridges over time. NMFS refers the public to Lamont-Doherty's application (see page 3) for more detailed information on the proposed research objectives.

    Dates and Duration

    Lamont-Doherty proposes to conduct the seismic survey for approximately 42 days, which includes approximately 22 days of seismic surveying with 10 days of OBS deployment and retrieval. The proposed study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) would include approximately 528 hours of airgun operations (i.e., 22 days over 24 hours). Some minor deviation from Lamont-Doherty's requested dates of January through March 2016 is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Thus, the proposed Authorization, if issued, would be effective from early January through March 31, 2016.

    Specified Geographic Region

    Lamont-Doherty proposes to conduct the proposed seismic survey in the South Atlantic Ocean, located approximately between 10-35° W, 27-33° S (see Figure 1). Water depths in the survey area range from approximately 1,150 to 4,800 meters (m) (3,773 feet [ft] to 2.98 miles [mi]).

    Principal and Collaborating Investigators

    The proposed survey's principal investigators are Drs. R. Reece and R. Carlson (Texas A&M University) and Dr. G. Christeson (University of Texas at Austin).

    Detailed Description of the Specified Activities Transit Activities

    The Langseth would depart and return from Cape Verde and transit to the survey area. Some minor deviations with the transit schedule and port locations are possible depending on logistics and weather.

    Vessel Specifications

    NMFS outlined the vessel's specifications in the notice of proposed Authorization (80 FR 75355, December 1, 2015). NMFS does not repeat the information here as the vessel's specifications have not changed between the notice of proposed Authorization and this notice of an issued Authorization.

    Data Acquisition Activities

    NMFS outlined the details regarding Lamont-Doherty's data acquisition activities using the airguns, multibeam echosounder, and the sub-bottom profiler in the notice of proposed Authorization (80 FR 75355, December 1, 2015). NMFS does not repeat the information here as the data acquisition activities have not changed between the notice of proposed Authorization and this notice of an issued Authorization.

    For a more detailed description of the authorized action (i.e., vessel and acoustic source specifications, metrics, characteristics of airgun pulses, predicted sound levels of airguns, etc.,) please see the notice of proposed Authorization (80 FR 75355, December 1, 2015) and associated documents referenced above this section.

    Comments and Responses

    NMFS published a notice of receipt of Lamont-Doherty's application and proposed Authorization in the Federal Register on December 1, 2015 (80 FR 75355). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission). NMFS has posted the comments online at: http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

    NMFS addresses any comments specific to Lamont-Doherty's application related to the statutory and regulatory requirements or findings that NMFS must make under the MMPA in order to issue an Authorization. The following is a summary of the public comments and NMFS' responses.

    Modeling Exclusion and Buffer Zones

    Comment 1: The Commission expressed concerns regarding Lamont-Doherty's method to estimate exclusion and buffer zones. It stated that the model is not the best available science because it assumes the following: Spherical spreading, constant sound speed, and no bottom interactions. In light of their concerns, the Commission recommended that NMFS require Lamont-Doherty to re-estimate the proposed exclusion and buffer zones incorporating site-specific environmental and operational parameters (e.g., sound speed profiles, refraction, bathymetry/water depth, sediment properties/bottom loss, or absorption coefficients) into their model.

    Response: NMFS acknowledges the Commission's concerns about Lamont-Doherty's current modeling approach for estimating exclusion and buffer zones and also acknowledges that Lamont-Doherty did not incorporate site-specific sound speed profiles, bathymetry, and sediment characteristics of the research area in the current approach to estimate those zones for this proposed seismic survey.

    Lamont-Doherty's application (LGL, 2015) and the NSF's draft environmental analyses (NSF, 2015) describe the approach to establishing mitigation exclusion and buffer zones. In summary, Lamont-Doherty acquired field measurements for several array configurations at shallow- and deep-water depths during acoustic verification studies conducted in the northern Gulf of Mexico in 2003 (Tolstoy et al., 2004) and in 2007 and 2008 (Tolstoy et al., 2009). Based on the empirical data from those studies, Lamont-Doherty developed a sound propagation modeling approach that predicts received sound levels as a function of distance from a particular airgun array configuration in deep water. For this proposed survey, Lamont-Doherty developed the exclusion and buffer zones for the airgun array based on the empirically-derived measurements from the Gulf of Mexico calibration survey (Fig. 5a in Appendix H of the NSF's 2011 PEIS). Based upon the best available information (i.e., the three data points, two of which are peer-reviewed, discussed in this response), NMFS finds that the exclusion and buffer zone calculations are appropriate for use in this particular survey.

    In 2015, Lamont-Doherty explored solutions to this issue (i.e., the question of whether the Gulf of Mexico calibration data adequately informs the model to predict exclusion isopleths in other areas) by conducting a retrospective sound power analysis of one of the lines acquired during Lamont-Doherty's seismic survey offshore New Jersey in 2014 (Crone, 2015). NMFS presented a comparison of the predicted radii (i.e., modeled exclusion zones) with radii based on in situ measurements (i.e., the upper bound [95th percentile] of the cross-line prediction) in a previous notice of issued Authorization (see Table 1, 80 FR 27635, May 14, 2015) for Lamont-Doherty.

    Briefly, Crone's (2015) preliminary analysis, specific to the proposed survey site offshore New Jersey, confirmed that in-situ, site specific measurements and estimates of the 160- and 180-decibel (dB) isopleths collected by the Langseth's hydrophone streamer in shallow water were smaller than the modeled (i.e., predicted) exclusion and buffer zones proposed for use in two seismic surveys conducted offshore New Jersey in shallow water in 2014 and 2015. In that particular case, Crone's (2015) results show that Lamont-Doherty's modeled exclusion (180-dB) and buffer (160-dB) zones were approximately 28 and 33 percent smaller than the in situ, site-specific measurements confirming that Lamont-Doherty's model was conservative in that case, as emphasized by Lamont-Doherty in its application and in supporting environmental documentation. The following is a summary of two additional analyses of in-situ data that support Lamont-Doherty's use of the modeled exclusion and buffer zones in this particular case.

    In 2010, Lamont-Doherty assessed the accuracy of their modeling approach by comparing the sound levels of the field measurements acquired in the Gulf of Mexico study to their model predictions (Diebold et al., 2010). They reported that the observed sound levels from the field measurements fell almost entirely below the predicted mitigation radii curve for deep water (greater than 1,000 meters [m]; 3280.8 feet [ft]) (Diebold et al., 2010).

    In 2012, Lamont-Doherty used a similar process to model exclusion and buffer zones for a shallow-water seismic survey in the northeast Pacific Ocean offshore Washington in 2012. Lamont-Doherty conducted the shallow-water survey using the same airgun configuration proposed for this seismic survey (i.e., 6,600 cubic inches [in3]) and recorded the received sound levels on the shelf and slope off Washington State using the Langseth's 8-kilometer (km) hydrophone streamer. Crone et al. (2014) analyzed those received sound levels from the 2012 survey and confirmed that in-situ, site specific measurements and estimates of the 160- and 180-dB isopleths collected by the Langseth's hydrophone streamer in shallow water were two to three times smaller than what Lamont-Doherty's modeling approach predicted. While the results confirm bathymetry's role in sound propagation, Crone et al. (2014) were able to confirm that the empirical measurements from the Gulf of Mexico calibration survey (the same measurements used to inform Lamont-Doherty's modeling approach for this seismic survey in the South Atlantic Ocean) overestimated the size of the exclusion and buffer zones for the shallow-water 2012 survey off Washington and were thus precautionary, in that particular case.

    The model Lamont-Doherty currently uses does not allow for the consideration of environmental and site-specific parameters as requested by the Commission. NMFS continues to work with Lamont-Doherty and the NSF to address the issue of incorporating site-specific information to further inform the analysis and development of mitigation measures in oceanic and coastal areas for future seismic surveys with Lamont-Doherty. However, Lamont-Doherty's current modeling approach (supported by the three data points discussed previously) represents the best available information for NMFS to reach determinations for the Authorization. As described earlier, the comparisons of Lamont-Doherty's model results and the field data collected in the Gulf of Mexico, offshore Washington, and offshore New Jersey illustrate a degree of conservativeness built into Lamont-Doherty's model for deep water, which NMFS expects to offset some of the limitations of the model to capture the variability resulting from site-specific factors.

    Lamont-Doherty has conveyed to NMFS that additional modeling efforts to refine the process and conduct comparative analysis may be possible with the availability of research funds and other resources. Obtaining research funds is typically through a competitive process, including those submitted to U.S. Federal agencies. The use of models for calculating buffer and exclusion zone radii and for developing take estimates is not a requirement of the MMPA incidental take authorization process. Furthermore, NMFS does not provide specific guidance on model parameters nor prescribe a specific model for applicants as part of the MMPA incidental take authorization process at this time. There is a level of variability not only with parameters in the models, but also the uncertainty associated with data used in models, and therefore, the quality of the model results submitted by applicants. NMFS considers this variability when evaluating applications and the take estimates and mitigation that the model informs. NMFS takes into consideration the model used and its results in determining the potential impacts to marine mammals; however, it is just one component of the analysis during the MMPA consultation process as NMFS also takes into consideration other factors associated with the proposed action, (e.g., geographic location, duration of activities, context, intensity, etc.).

    Monitoring and Reporting

    Comment 2: The Commission has indicated that monitoring and reporting requirements should provide a reasonably accurate assessment of the types of taking and the numbers of animals taken by the proposed activity. They recommend that NMFS and Lamont-Doherty incorporate an accounting for animals at the surface but not detected [i.e., g(0) values] and for animals present but underwater and not available for sighting [i.e., f(0) values] into monitoring efforts. In light of the Commission's previous comments, they recommend that NMFS consult with the funding agency (i.e., the NSF) and individual applicants (e.g., Lamont-Doherty and other related entities) to develop, validate, and implement a monitoring program that provides a scientifically sound, reasonably accurate assessment of the types of marine mammal takes and the actual numbers of marine mammals taken, accounting for applicable g(0) and f(0) values. They also recommend that Lamont-Doherty and other relevant entities continue to collect appropriate sightings data in the field which NMFS can then pool to determine g(0) and f(0) values relevant to the various geophysical survey types.

    Response: NMFS agrees with the Commission's recommendation to improve the post-survey reporting requirements for NSF and Lamont-Doherty by accounting for takes using applicable g(0) and f(0) values. In December 2015, NMFS met with Commission representatives to discuss ways to develop and validate a monitoring program that provides a scientifically sound, reasonably accurate assessment of the types of marine mammal takes and the actual numbers of marine mammals taken, accounting for applicable g(0) and f(0) values. We will work with NSF to develop ways to improve their post-survey take estimates and have included a requirement in the South Atlantic Authorization for them to do so in collaboration with us and the Commission.

    Description of Marine Mammals in the Area of the Specified Activity

    Table 1 in this notice provides the following: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); abundance; and occurrence and seasonality in the proposed activity area. Based on the best available information, NMFS expects that there may be a potential for certain cetacean and pinniped species to occur within the survey area (i.e., potentially be taken) and have included additional information for these species in Table 1 of this notice. NMFS will carry forward analyses on the species listed in Table 1 later in this document.

    Table 1—General Information on Marine Mammals That Could Potentially Occur in the Proposed Survey Areas Within the South Atlantic Ocean [January through March 2016] Species Regulatory
  • status 1 2
  • Species
  • abundance 3
  • Local occurrence
  • and range 4
  • Season 5
    Antarctic minke whale (Balaenoptera bonaerensis) MMPA—NC, ESA—NL 6 515,000 Uncommon shelf, pelagic Winter. Blue whale (B. musculus) MMPA—D
  • ESA—EN
  • 7 2,300 Rare coastal, slope, pelagic Winter.
    Bryde's whale (B. edeni) MMPA—NC, ESA—NL 8 43,633 Rare coastal, pelagic Winter. Common (dwarf) minke whale (B. acutorostrata) MMPA—NC, ESA—NL 6 515,000 Uncommon shelf, pelagic Winter. Fin whale (B. physalus) MMPA—D, ESA—EN 9 22,000 Uncommon Coastal, pelagic Fall. Humpback whale (Megaptera novaeangliae) MMPA—D, ESA—EN 10 42,000 Uncommon Coastal, shelf, pelagic Winter. Sei whale (B. borealis) MMPA—D, ESA—EN 11 10,000 Uncommon Shelf edges, pelagic Winter. Southern right whale (Eubalaena australis) MMPA—D, ESA—EN 12 12,000 Uncommon Coastal, shelf Winter. Sperm whale (Physeter macrocephalus) MMPA—D, ESA—EN 13 355,000 Uncommon Slope, pelagic Winter. Dwarf sperm whale (Kogia sima) MMPA—NC, ESA—NL 3,785 Rare Shelf, slope, pelagic Winter. Pygmy sperm whale (K. breviceps) MMPA—NC, ESA—NL 3,785 Rare Shelf, slope, pelagic Winter. Cuvier's beaked whale (Ziphius cavirostris) MMPA—NC, ESA—NL 14 599,300 Uncommon Slope Winter. Andrew's beaked whale (Mesoplodon bowdoini) MMPA—NC, ESA—NL 14 599,300 Rare Pelagic Winter. Arnoux's beaked whale (Berardius arnuxii) MMPA—NC, ESA—NL 14 599,300 Rare Pelagic Winter. Blainville's beaked whale (M.densirostris) MMPA—NC, ESA—NL 14 599,300 Rare Slope, pelagic Winter. Gervais' beaked whale (M. europaeus) MMPA—NC, ESA—NL 14 599,300 Rare pelagic Winter. Gray's beaked whale (M. grayi) MMPA—NC, ESA—NL 14 599,300 Rare Pelagic Winter. Hector's beaked whale (M. hectori) MMPA—NC, ESA—NL 14 599,300 Rare pelagic Winter. Shepherd's beaked whale (Tasmacetus shepherdi) MMPA—NC, ESA—NL 14 599,300 Rare pelagic Winter. Strap-toothed beaked whale (M. layardii) MMPA—NC, ESA—NL 14 599,300 Rare pelagic Winter. True's beaked whale (M. mirus) MMPA—NC, ESA—NL 7,092 Rare pelagic Winter. Southern bottlenose whale (Hyperoodon planifrons) MMPA—NC, ESA—NL 14 599,300 Rare Coastal, shelf, pelagic Winter. Bottlenose dolphin (Tursiops truncatus) MMPA—NC, ESA—NL 15 600,000 Uncommon Coastal, pelagic Winter. Rough-toothed dolphin (Steno bredanensis) MMPA—NC, ESA—NL 271 Uncommon shelf, pelagic Winter. Pantropical spotted dolphin (Stenella attennuata) MMPA—NC, ESA—NL 3,333 Uncommon Coastal, slope, pelagic Winter. Striped dolphin (S. coeruleoalba) MMPA—NC, ESA—NL 54,807 Rare Pelagic Winter. Fraser's dolphin (Lagenodelphis hosei) MMPA—NC, ESA—NL 16 289,000 Uncommon Pelagic Winter. Spinner dolphin (Stenella longirostris) MMPA—NC, ESA—NL 16 1,200,000 Rare Pelagic Winter. Atlantic spotted dolphin (S. frontalis) MMPA—NC, ESA—NL 44,715 Uncommon Pelagic Winter. Clymene dolphin (S. clymene) MMPA—NC, ESA—NL 6,215 Rare Pelagic Winter. Risso's dolphin (Grampus griseus) MMPA—NC, ESA—NL 20,692 Uncommon Pelagic Winter. Long-beaked common dolphin (Delphinus capensis) MMPA—NC, ESA—NL 17 20,000 Rare Coastal Winter. Short-beaked common dolphin (Delphinus delphis) MMPA—NC, ESA—NL 173,486 Uncommon Coastal, shelf Winter. Southern right whale dolphin (Lissodelphis peronii) MMPA—NC, ESA—NL Unknown Uncommon Coastal, shelf Winter. Melon-headed whale (Peponocephala electra) MMPA—NC, ESA—NL 18 50,000 Uncommon Coastal, shelf, pelagic Winter. Pygmy killer whale (Feresa attenuate) MMPA—NC, ESA—NL 3,585 Uncommon Coastal, shelf, pelagic Winter. False killer whale (Pseudorca crassidens) MMPA—NC, ESA—NL 442 Rare Pelagic Winter. Killer whale (Orcinus orca) MMPA—NC, ESA—NL 19 50,000 Uncommon Coastal, pelagic Winter. Long-finned pilot whale (Globicephala melas) MMPA—NC, ESA—NL 14 200,000 Uncommon Pelagic Winter. Short-finned pilot whale (Globicephala macrorhynchus) MMPA—NC, ESA—NL 14 200,000 Uncommon Pelagic Winter. Southern Elephant Seal (Mirounga leonina) MMPA—NC, ESA—NL 20 650,000 Rare Coastal Winter. Subantarctic fur seal (Arctocephalus tropicalis) MMPA—NC, ESA—NL 21 310,000 Uncommon Pelagic Winter. 2 MMPA: NC= Not classified; D= Depleted; ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 3 Except where noted abundance information obtained from NOAA Technical Memorandum NMFS-NE-231, U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments-2014 (Waring et al., 2015) and the Draft 2015 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (in review, 2015). NA = Not available. 4 Occurrence and range information available from the International Union for the Conservation of Nature (IUCN). 5 NA= Not available due to limited information on that species' seasonal occurrence in the proposed area. 6 Best estimate from the International Whaling Commission's (IWC) estimate for the minke whale population (Southern Hemisphere, 2004). 7 Best estimate from the IWC's estimate for the blue whale population (Southern Hemisphere, 1998). 8 Estimate from IUCN Web page for Bryde's whales. Southern Hemisphere: Southern Indian Ocean (13,854); western South Pacific (16,585); and eastern South Pacific (13,194) (IWC, 1981). 9 Best estimate from the IWC's estimate for the fin whale population (East Greenland to Faroes, 2007). 10 Best estimate from the IWC's estimate for the humpback whale population (Southern Hemisphere, partial coverage of Antarctic feeding grounds, 2007). 11 Estimate from the IUCN Web page for sei whales (IWC, 1996). 12 Best estimate from the IWC's estimate for the southern right whale population (Southern Hemisphere, 2009). 13 Whitehead, (2002). 14 Abundance estimates for beaked, southern bottlenose, and pilot whales south of the Antarctic Convergence in January (Kasamatsu and Joyce, 1995). 15 Wells and Scott, (2009). 16 Jefferson et al., (2008). 17 Cockcroft and Peddemors, (1990). 18 Estimate from the IUCN Web page for melon-headed whales (IUCN, 2015). 19 Estimate from the IUCN Web page for killer whales (IUCN, 2015). 20 Estimate from the IUCN Web page for southern elephant seals (IUCN, 2015). 21 Arnoud, (2009).

    NMFS refers the public to Lamont-Doherty's application, NSF's draft environmental analysis (see ADDRESSES), NOAA Technical Memorandum NMFS-NE-231, U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments-2014 (Waring et al., 2015); and the Draft 2015 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (in review, 2015) available online at: http://www.nmfs.noaa.gov/pr/sars/species.htm for further information on the biology and local distribution of these species.

    Potential Effects of the Specified Activities on Marine Mammals

    NMFS provided a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operations, vessel movement, and entanglement) impact marine mammals (via observations or scientific studies) in the notice of proposed Authorization (80 FR 75355, December 1, 2015).

    The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative discussion of the number of marine mammals anticipated to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific proposed activity would impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    NMFS provided a background of potential effects of Lamont-Doherty's activities in the notice of proposed Authorization (80 FR 75355, December 1, 2015). Operating active acoustic sources, such as airgun arrays, has the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of acoustic sources. The effects of sounds from airgun pulses might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson et al., 1995). However, for reasons discussed in the notice of proposed Authorization (80 FR 75355, December 1, 2015), it is unlikely that there would be any cases of temporary or permanent hearing impairment resulting from Lamont-Doherty's activities. NMFS' predicted estimates for Level A harassment take for some species are likely overestimates of the injury that will occur. NMFS expects that successful implementation of the required visual and acoustic mitigation measures would avoid Level A take in some instances.

    As outlined in previous NMFS documents, the effects of noise on marine mammals are highly variable, often depending on species and contextual factors (based on Richardson et al., 1995).

    In the Potential Effects of the Specified Activity on Marine Mammals section (80 FR 75355, December 1, 2015); NMFS included a qualitative discussion of the different ways that Lamont-Doherty's seismic survey may potentially affect marine mammals.

    Behavior: Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. These behavioral reactions are often shown as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    Masking: Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Introduced underwater sound may through masking reduce the effective communication distance of a marine mammal species if the frequency of the source is close to that of a signal that needs to be detected by the marine mammal, and if the anthropogenic sound is present for a significant fraction of the time (Richardson et al., 1995). For the airgun sound generated from Lamont-Doherty's seismic survey, sound will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Masking from airguns is more likely in low-frequency marine mammals like mysticetes. There is little concern that masking would occur near the sound source due to the brief duration of these pulses and relative silence between air gun shots (approximately 22 to 170 seconds). The sounds important to small odontocete communication are predominantly at much higher frequencies than the dominant components of airgun sounds, thus limiting the potential for masking in those species.

    Hearing Impairment: Hearing impairment (either temporary or permanent) is also unlikely. Given the higher level of sound necessary to cause permanent threshold shift as compared with temporary threshold shift, it is considerably less likely that permanent threshold shift would occur during the seismic survey. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent compared to cetacean reactions. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. Nonetheless, although NMFS expects that Level A harassment is unlikely to occur, we have conservatively authorized and analyzed a low level of permanent threshold shift occurrences for certain species. We acknowledge that it is difficult to quantify the degree to which the mitigation and avoidance will reduce the number of animals that might incur permanent threshold shift; however, we are proposing to authorize the modeled number of Level A takes, which does not take the mitigation or avoidance into consideration.

    Vessel Movement and Entanglement: The Langseth will operate at a relatively slow speed (typically 4.6 knots [8.5 km/h; 5.3 mph]) when conducting the survey. Protected species observers would monitor for marine mammals, which would trigger mitigation measures, including vessel avoidance where safe. Therefore, NMFS does not anticipate nor do we authorize takes of marine mammals from vessel strike or entanglement.

    NMFS refers the reader to Lamont-Doherty's application and the NSF's environmental analysis for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels. NMFS has reviewed these data and based our decision on the relevant information.

    Anticipated Effects on Marine Mammal Habitat

    NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine mammal prey items (e.g., fish and invertebrates) in the notice of proposed Authorization (80 FR 75355, December 1, 2015). While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, the impact to habitat is temporary and reversible. Further, NMFS also considered these impacts to marine mammals in detail in the notice of proposed Authorization as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals.

    Mitigation

    In order to issue an Incidental Harassment Authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).

    Lamont-Doherty has reviewed the following source documents and has incorporated a suite of proposed mitigation measures into their project description.

    (1) Protocols used during previous Lamont-Doherty and NSF-funded seismic research cruises as approved by us and detailed in the NSF's 2011 PEIS and 2015 draft environmental analysis;

    (2) Previous incidental harassment authorizations applications and authorizations that NMFS has approved and authorized; and

    (3) Recommended best practices in Richardson et al. (1995), Pierson et al. (1998), and Weir and Dolman, (2007).

    To reduce the potential for disturbance from acoustic stimuli associated with the activities, Lamont-Doherty, and/or its designees have proposed to implement the following mitigation measures for marine mammals:

    (1) Vessel-based visual mitigation monitoring;

    (2) Proposed exclusion zones;

    (3) Power down procedures;

    (4) Shutdown procedures;

    (5) Ramp-up procedures; and

    (6) Speed and course alterations.

    NMFS reviewed Lamont-Doherty's proposed mitigation measures and has proposed an additional measure to effect the least practicable adverse impact on marine mammals. They are:

    (1) Expanded power down procedures for concentrations of six or more whales that do not appear to be traveling (e.g., feeding, socializing, etc.).

    Vessel-Based Visual Mitigation Monitoring

    Lamont-Doherty would position observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Observers would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shutdown (i.e., greater than approximately eight minutes for this proposed cruise). When feasible, the observers would conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on the observations, the Langseth would power down or shutdown the airguns when marine mammals are observed within or about to enter a designated exclusion zone for cetaceans or pinnipeds.

    During seismic operations, at least four protected species observers would be aboard the Langseth. Lamont-Doherty would appoint the observers with NMFS concurrence, and they would conduct observations during ongoing daytime operations and nighttime ramp-ups of the airgun array. During the majority of seismic operations, two observers would be on duty from the observation tower to monitor marine mammals near the seismic vessel. Using two observers would increase the effectiveness of detecting animals near the source vessel. However, during mealtimes and bathroom breaks, it is sometimes difficult to have two observers on effort, but at least one observer would be on watch during bathroom breaks and mealtimes. Observers would be on duty in shifts of no longer than four hours in duration.

    Two observers on the Langseth would also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third observer would monitor the passive acoustic monitoring equipment 24 hours a day to detect vocalizing marine mammals present in the action area. In summary, a typical daytime cruise would have scheduled two observers (visual) on duty from the observation tower, and an observer (acoustic) on the passive acoustic monitoring system. Before the start of the seismic survey, Lamont-Doherty would instruct the vessel's crew to assist in detecting marine mammals and implementing mitigation requirements.

    The Langseth is a suitable platform for marine mammal observations. When stationed on the observation platform, the eye level would be approximately 21.5 m (70.5 ft) above sea level, and the observer would have a good view around the entire vessel. During daytime, the observers would scan the area around the vessel systematically with reticle binoculars (e.g., 7 x 50 Fujinon), Big-eye binoculars (25 x 150), and with the naked eye. During darkness, night vision devices would be available (ITT F500 Series Generation 3 binocular-image intensifier or equivalent), when required. Laser range-finding binoculars (Leica LRF 1200 laser rangefinder or equivalent) would be available to assist with distance estimation. They are useful in training observers to estimate distances visually, but are generally not useful in measuring distances to animals directly. The user measures distances to animals with the reticles in the binoculars.

    Lamont-Doherty would immediately power down or shutdown the airguns when observers see marine mammals within or about to enter the designated exclusion zone. The observer(s) would continue to maintain watch to determine when the animal(s) are outside the exclusion zone by visual confirmation. Airgun operations would not resume until the observer has confirmed that the animal has left the zone, or if not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).

    Lamont-Doherty would use safety radii to designate exclusion zones and to estimate take for marine mammals. Table 2 shows the distances at which one would expect to receive sound levels (160-, 180-, and 190-dB,) from the airgun array and a single airgun. If the protected species visual observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the Langseth crew would immediately power down the airgun array, or perform a shutdown if necessary (see Shut-down Procedures).

    Table 2—Predicted Distances to Which Sound Levels Greater Than or Equal to 160 Re: 1 µPa Could Be Received During the Proposed Survey Areas Within the South Atlantic Ocean [January through March, 2016] Source and volume
  • (in3)
  • Tow depth
  • (m)
  • Water depth
  • (m)
  • Predicted RMS distances 1
  • (m)
  • 190 dB 180 dB 160 dB
    Single Bolt airgun (40 in3) 9 >1,000 100 100 388 36-Airgun Array (6,600 in3) 9 >1,000 286 927 5,780 1 Predicted distances based on information presented in Lamont-Doherty's application.

    The 180- or 190-dB level shutdown criteria are applicable to cetaceans and pinnipeds respectively as specified by NMFS (2000). Lamont-Doherty used these levels to establish the exclusion zones as presented in their application.

    Power Down Procedures

    A power down involves decreasing the number of airguns in use such that the radius of the 180-dB or 190-dB exclusion zone is smaller to the extent that marine mammals are no longer within or about to enter the exclusion zone. A power down of the airgun array can also occur when the vessel is moving from one seismic line to another. During a power down for mitigation, the Langseth would operate one airgun (40 in3). The continued operation of one airgun would alert marine mammals to the presence of the seismic vessel in the area. A shutdown occurs when the Langseth suspends all airgun activity.

    If the observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew would power down the airguns to reduce the size of the 180-dB or 190-dB exclusion zone before the animal enters that zone. Likewise, if a mammal is already within the zone after detection, the crew would power-down the airguns immediately. During a power down of the airgun array, the crew would operate a single 40-in3 airgun which has a smaller exclusion zone. If the observer detects a marine mammal within or near the smaller exclusion zone around the airgun (Table 3), the crew would shut down the single airgun (see next section).

    Resuming Airgun Operations After a Power Down

    Following a power-down, the Langseth crew would not resume full airgun activity until the marine mammal has cleared the 180-dB or 190-dB exclusion zone. The observers would consider the animal to have cleared the exclusion zone if:

    • The observer has visually observed the animal leave the exclusion zone; or

    • An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or

    The Langseth crew would resume operating the airguns at full power after 15 minutes of sighting any species with short dive durations (i.e., small odontocetes or pinnipeds). Likewise, the crew would resume airgun operations at full power after 30 minutes of sighting any species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales).

    NMFS estimates that the Langseth would transit outside the original 180-dB or 190-dB exclusion zone after an 8-minute wait period. This period is based on the average speed of the Langseth while operating the airguns (8.5 km/h; 5.3 mph). Because the vessel has transited away from the vicinity of the original sighting during the 8-minute period, implementing ramp-up procedures for the full array after an extended power down (i.e., transiting for an additional 35 minutes from the location of initial sighting) would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the exclusion zone for the full source level and would not further minimize the potential for take. The Langseth's observers are continually monitoring the exclusion zone for the full source level while the mitigation airgun is firing. On average, observers can observe to the horizon (10 km; 6.2 mi) from the height of the Langseth's observation deck and should be able to say with a reasonable degree of confidence whether a marine mammal would be encountered within this distance before resuming airgun operations at full power.

    Shutdown Procedures

    The Langseth crew would shut down the operating airgun(s) if they see a marine mammal within or approaching the exclusion zone for the single airgun. The crew would implement a shutdown:

    (1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power down; or

    (2) If an observer sees the animal is initially within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating.

    Resuming Airgun Operations After a Shutdown: Following a shutdown in excess of eight minutes, the Langseth crew would initiate a ramp-up with the smallest airgun in the array (40-in3). The crew would turn on additional airguns in a sequence such that the source level of the array would increase in steps not exceeding 6 dB per five-minute period over a total duration of approximately 30 minutes. During ramp-up, the observers would monitor the exclusion zone, and if he/she sees a marine mammal, the Langseth crew would implement a power down or shutdown as though the full airgun array were operational.

    During periods of active seismic operations, there are occasions when the Langseth crew would need to temporarily shut down the airguns due to equipment failure or for maintenance. In this case, if the airguns are inactive longer than eight minutes, the crew would follow ramp-up procedures for a shutdown described earlier and the observers would monitor the full exclusion zone and would implement a power down or shutdown if necessary.

    If the full exclusion zone is not visible to the observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Langseth crew would not commence ramp-up unless at least one airgun (40-in3 or similar) has been operating during the interruption of seismic survey operations. Given these provisions, it is likely that the vessel's crew would not ramp up the airgun array from a complete shutdown at night or in thick fog, because the outer part of the zone for that array would not be visible during those conditions.

    If one airgun has operated during a power down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew would not initiate a ramp-up of the airguns if an observer sees the marine mammal within or near the applicable exclusion zones during the day or close to the vessel at night.

    Ramp-Up Procedures

    Ramp-up of an airgun array provides a gradual increase in sound levels, and involves a step-wise increase in the number and total volume of airguns firing until the full volume of the airgun array is achieved. The purpose of a ramp-up is to “warn” marine mammals in the vicinity of the airguns, and to provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities. Lamont-Doherty would follow a ramp-up procedure when the airgun array begins operating after an 8 minute period without airgun operations or when shut down has exceeded that period. Lamont-Doherty has used similar waiting periods (approximately eight to 10 minutes) during previous seismic surveys.

    Ramp-up would begin with the smallest airgun in the array (40 in3). The crew would add airguns in a sequence such that the source level of the array would increase in steps not exceeding six dB per five minute period over a total duration of approximately 30 to 35 minutes. During ramp-up, the observers would monitor the exclusion zone, and if marine mammals are sighted, Lamont-Doherty would implement a power-down or shut-down as though the full airgun array were operational.

    If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, Lamont-Doherty would not commence the ramp-up unless at least one airgun (40 in3 or similar) has been operating during the interruption of seismic survey operations. Given these provisions, it is likely that the crew would not ramp up the airgun array from a complete shut-down at night or in thick fog, because the outer part of the exclusion zone for that array would not be visible during those conditions. If one airgun has operated during a power-down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. Lamont-Doherty would not initiate a ramp-up of the airguns if an observer sights a marine mammal within or near the applicable exclusion zones.

    Special Procedures for Concentrations of Large Whales

    The Langseth would avoid exposing concentrations of large whales to sounds greater than 160 dB re: 1 µPa within the 160-dB zone and would power down the array, if necessary. For purposes of this proposed survey, a concentration or group of whales would consist of six or more individuals visually sighted that do not appear to be traveling (e.g., feeding, socializing, etc.).

    Speed and Course Alterations

    If during seismic data collection, Lamont-Doherty detects marine mammals outside the exclusion zone and, based on the animal's position and direction of travel, is likely to enter the exclusion zone, the Langseth would change speed and/or direction if this does not compromise operational safety. Due to the limited maneuverability of the primary survey vessel, altering speed, and/or course can result in an extended period of time to realign the Langseth to the transect line. However, if the animal(s) appear likely to enter the exclusion zone, the Langseth would undertake further mitigation actions, including a power down or shut down of the airguns.

    Mitigation Conclusions

    NMFS has carefully evaluated Lamont-Doherty's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on the evaluation of Lamont-Doherty's proposed measures, as well as other measures proposed by NMFS (i.e., special procedures for concentrations of large whales), NMFS has determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring

    In order to issue an Incidental Harassment Authorization for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for Authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that we expect to be present in the proposed action area.

    Lamont-Doherty submitted a marine mammal monitoring plan in section XIII of the Authorization application. NMFS, NSF, or Lamont-Doherty may modify or supplement the plan based on comments or new information received from the public during the public comment period.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and during other times and locations, in order to generate more data to contribute to the analyses mentioned later;

    2. An increase in our understanding of how many marine mammals would be affected by seismic airguns and other active acoustic sources and the likelihood of associating those exposures with specific adverse effects, such as behavioral harassment, temporary or permanent threshold shift;

    3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (i.e., to be able to accurately predict received level, distance from source, and other pertinent information);

    b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (i.e., to be able to accurately predict received level, distance from source, and other pertinent information);

    c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    4. An increased knowledge of the affected species; and

    5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Monitoring Measures

    Lamont-Doherty proposes to sponsor marine mammal monitoring during the present project to supplement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the Authorization. Lamont-Doherty understands that NMFS would review the monitoring plan and may require refinements to the plan. Lamont-Doherty planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, Lamont-Doherty is prepared to discuss coordination of its monitoring program with any other related work that might be conducted by other groups working insofar as it is practical for Lamont-Doherty.

    Vessel-Based Passive Acoustic Monitoring

    Passive acoustic monitoring would complement the visual mitigation monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Passive acoustic monitoring can improve detection, identification, and localization of cetaceans when used in conjunction with visual observations. The passive acoustic monitoring would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The acoustic observer would monitor the system in real time so that he/she can advise the visual observers if they acoustically detect cetaceans.

    The passive acoustic monitoring system consists of hardware (i.e., hydrophones) and software. The “wet end” of the system consists of a towed hydrophone array connected to the vessel by a tow cable. The tow cable is 250 m (820.2 ft) long and the hydrophones are fitted in the last 10 m (32.8 ft) of cable. A depth gauge, attached to the free end of the cable, typically is towed at depths less than 20 m (65.6 ft). The Langseth crew would deploy the array from a winch located on the back deck. A deck cable would connect the tow cable to the electronics unit in the main computer lab where the acoustic station, signal conditioning, and processing system would be located. The Pamguard software amplifies, digitizes, and then processes the acoustic signals received by the hydrophones. The system can detect marine mammal vocalizations at frequencies up to 250 kHz.

    One acoustic observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system would be aboard the Langseth in addition to the other visual observers who would rotate monitoring duties. The acoustic observer would monitor the towed hydrophones 24 hours per day during airgun operations and during most periods when the Langseth is underway while the airguns are not operating. However, passive acoustic monitoring may not be possible if damage occurs to both the primary and back-up hydrophone arrays during operations. The primary passive acoustic monitoring streamer on the Langseth is a digital hydrophone streamer. Should the digital streamer fail, back-up systems should include an analog spare streamer and a hull-mounted hydrophone.

    One acoustic observer would monitor the acoustic detection system by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. The observer monitoring the acoustical data would be on shift for one to six hours at a time. The other observers would rotate as an acoustic observer, although the expert acoustician would be on passive acoustic monitoring duty more frequently.

    When the acoustic observer detects a vocalization while visual observations are in progress, the acoustic observer on duty would contact the visual observer immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), so that the vessel's crew can initiate a power down or shutdown, if required. The observer would enter the information regarding the call into a database. Data entry would include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. Acousticians record the acoustic detection for further analysis.

    Observer Data and Documentation

    Observers would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They would use the data to help better understand the impacts of the activity on marine mammals and to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or near the exclusion zone.

    When an observer makes a sighting, they will record the following information:

    1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.

    2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.

    The observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.

    Observers will record all observations and power downs or shutdowns in a standardized format and will enter data into an electronic database. The observers will verify the accuracy of the data entry by computerized data validity checks during data entry and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.

    Results from the vessel-based observations will provide:

    1. The basis for real-time mitigation (airgun power down or shutdown).

    2. Information needed to estimate the number of marine mammals potentially taken by harassment, which Lamont-Doherty must report to the Office of Protected Resources.

    3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where Lamont-Doherty would conduct the seismic study.

    4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity.

    5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations.

    Reporting

    Lamont-Doherty would submit a report to us and to NSF within 90 days after the end of the cruise. The report would describe the operations conducted and sightings of marine mammals near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that occurred above the harassment threshold based on the observations. The report would consider both published literature and previous monitoring results that could inform the detectability of different species and how that information affects post survey exposure estimates.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Lamont-Doherty shall immediately cease the specified activities and immediately report the take to the Division Chief, Permits and Conservation Division, Office of Protected Resources, NMFS. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Lamont-Doherty shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with Lamont-Doherty to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Lamont-Doherty may not resume their activities until notified by us via letter, email, or telephone.

    In the event that Lamont-Doherty discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), Lamont-Doherty will immediately report the incident to the Division Chief, Permits and Conservation Division, Office of Protected Resources, NMFS. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with Lamont-Doherty to determine whether modifications in the activities are appropriate.

    In the event that Lamont-Doherty discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Lamont-Doherty would report the incident to the Chief Permits and Conservation Division, Office of Protected Resources, NMFS, within 24 hours of the discovery. Lamont-Doherty would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the airgun array may have the potential to result in the behavioral disturbance of some marine mammals and may have an even smaller potential to result in permanent threshold shift (non-lethal injury) of some marine mammals. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. However, NMFS cannot discount the possibility (albeit small) that exposure to energy from the proposed survey could result in non-lethal injury (Level A harassment). Thus, NMFS proposes to authorize take by Level B harassment and Level A harassment resulting from the operation of the sound sources for the proposed seismic survey based upon the current acoustic exposure criteria shown in Table 3 subject to the limitations in take described in Table 5 later in this notice.

    Table 3—NMFS' Current Acoustic Exposure Criteria Criterion Criterion definition Threshold Level A Harassment (Injury) Permanent Threshold Shift (PTS)
  • (Any level above that which is known to cause TTS)
  • 180 dB re 1 microPa-m (cetaceans)/190 dB re 1 microPa-m (pinnipeds) root mean square (rms).
    Level B Harassment Behavioral Disruption (for impulse noises) 160 dB re 1 microPa-m (rms).

    NMFS' practice is to apply the 160 dB re: 1 μPa received level threshold for underwater impulse sound levels to predict whether behavioral disturbance that rises to the level of Level B harassment is likely to occur. NMFS' practice is to apply the 180 dB or 190 dB re: 1 μPa received level threshold for underwater impulse sound levels to predict whether permanent threshold shift (auditory injury), which we consider as Level A harassment is likely to occur.

    Acknowledging Uncertainties in Estimating Take

    Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound, and use that information to predict how many animals are taken. In practice, depending on the amount of information available to characterize daily and seasonal movement and distribution of affected marine mammals, distinguishing between the numbers of individuals harassed and the instances of harassment can be difficult to parse. Moreover, when one considers the duration of the activity, in the absence of information to predict the degree to which individual animals are likely exposed repeatedly on subsequent days, the simple assumption is that entirely new animals are exposed every day, which results in a take estimate that in some circumstances overestimates the number of individuals harassed.

    The following sections describe NMFS' methods to estimate take by incidental harassment. We base these estimates on the number of marine mammals that could be potentially harassed by seismic operations with the airgun array during approximately 3,236 km (2,028 mi) of transect lines in the South Atlantic Ocean.

    Modeled Number of Instances of Exposures: Lamont-Doherty would conduct the proposed seismic survey within the high seas in the South Atlantic Ocean. NMFS presents estimates of the anticipated numbers of instances that marine mammals could be exposed to sound levels greater than or equal to 160, 180, and 190 dB re: 1 μPa during the proposed seismic survey. Table 5 represents the numbers of instances of take that NMFS proposes to authorize for this survey within the South Atlantic Ocean.

    NMFS' Take Estimate Method for Species with Density Information: In order to estimate the potential number of instances that marine mammals could be exposed to airgun sounds above the 160-dB Level B harassment threshold and the 180-dB Level A harassment thresholds, NMFS used the following approach for species with density estimates derived from the Navy's Atlantic Fleet Training and Testing Navy Marine Species Density Database (NMSDD) maps for the survey area in the Southern Atlantic Ocean. NMFS used the highest density range for each species within the survey area.

    (1) Calculate the total area that the Langseth would ensonify above the 160-dB Level B harassment threshold and above the 180-dB Level A harassment threshold for cetaceans within a 24-hour period. This calculation includes a daily ensonified area of approximately 1,377 square kilometers (km2) (532 square miles [mi2]) for the five OBS tracklines and 1,839 km2 (710 mi2) for the MCS trackline based on the Langseth traveling approximately 150 km [93 mi] in one day). Generally, the Langseth travels approximately 137 km (85 mi) in one day while conducting a seismic survey; thus, NMFS' estimate of a daily ensonified area based on 150 km is an estimation of the theoretical maximum that the Langseth could travel within 24 hours.

    (2) Multiply each daily ensonified area above the 160-dB Level B harassment threshold by the species' density (animals/km2) to derive the predicted number of instances of exposures to received levels greater than or equal to 160-dB re: 1 μPa on a given day;

    (3) Multiply each product (i.e., the expected number of instances of exposures within a day) by the number of survey days that includes a 25 percent contingency (i.e., a total of six days for the five OBS tracklines and a total of 22 days for the MCS trackline) to derive the predicted number of instances of exposures above 160 dB over the duration of the survey;

    (4) Multiply the daily ensonified area by each species-specific density to derive the predicted number of instances of exposures to received levels greater than or equal to 180-dB re: 1 μPa for cetaceans on a given day (i.e., Level A takes). This calculation includes a daily ensonified area of approximately 207 km2 (80 mi2) for the five OBS tracklines and 281 km2 (108 mi2) for the MCS trackline.

    (5) Multiply each product by the number of survey days that includes a 25 percent contingency (i.e., a total of six days for the five OBS tracklines and a total of 22 days for the MCS trackline). Subtract that product from the predicted number of instances of exposures to received levels greater than or equal to 160-dB re: 1 μPa on a given day to derive the number of instances of exposures estimated to occur between 160 and 180-dB threshold (i.e., Level B takes).

    In many cases, this estimate of instances of exposures is likely an overestimate of the number of individuals that are taken, because it assumes 100 percent turnover in the area every day, (i.e., that each new day results in takes of entirely new individuals with no repeat takes of the same individuals over the 22-day period (28 days with contingency). It is difficult to quantify to what degree this method overestimates the number of individuals potentially taken. Except as described later for a few specific species, NMFS uses this number of instances as the estimate of individuals (and authorized take) even though NMFS is aware that the number may be somewhat high due to the use of the maximum density estimate from the NMSDD.

    Take Estimates for Species with Less than One Instance of Exposure: Using the approach described earlier, the model generated instances of take for some species that were less than one over the 28-day duration. Those species include the humpback, blue, Bryde's, pygmy sperm, and dwarf sperm whale. NMFS used data based on dedicated survey sighting information from the Atlantic Marine Assessment Program for Protected Species (AMAPPS) surveys in 2010, 2011, and 2013 (AMAPPS, 2010, 2011, 2013) to estimate take and assumed that Lamont-Doherty could potentially encounter one group of each species during the proposed seismic survey. NMFS believes it is reasonable to use the average (mean) group size (weighted by effort and rounded up) from the AMMAPS surveys for humpback whale (3), blue whale (2), Bryde's whale (2), pygmy sperm whale (2), and dwarf sperm whale (2) to derive a reasonable estimate of take for eruptive occurrences.

    Take Estimates for Species with No Density Information: Density information for the Southern right whale, southern elephant seal, and Subantarctic fur seal in the South Atlantic Ocean is data poor or non-existent. When density estimates were not available, NMFS used data based on dedicated survey sighting information from the Atlantic Marine Assessment Program for Protected Species (AMAPPS) surveys in 2010, 2011, and 2013 (AMAPPS, 2010, 2011, 2013) to estimate take for the three species. NMFS assumed that Lamont-Doherty could potentially encounter one group of each species during the seismic survey. NMFS believes it is reasonable to use the average (mean) group size (weighted by effort and rounded up) for North Atlantic right whales (3) from the AMMAPS surveys for the Southern right whale and the mean group size for unidentified seals (2) from the AMMAPS surveys for southern elephant and Subantarctic fur seals multiplied by 28 days to derive an estimate of take from a potential encounter.

    NMFS used sighting information from a survey off Namibia, Africa (Rose and Payne, 1991) to estimate a mean group size for southern right whale dolphins (58) and also multiplied that estimate by 28 days to derive an estimate of take from a potential encounter with that species.

    Table 4—Densities and/or Mean Group Size, and Estimates of the Possible Numbers of Marine Mammals and Population Percentages Exposed to Sound Levels Greater Than or Equal to 160, 180, and 190 dB re: 1 μPa Over 28 Days During the Proposed Seismic Survey in the South Atlantic Ocean [January through March, 2016] Species Density
  • estimate 1
  • Modeled number of instances of
  • exposures to sound levels
  • ≥160, 180, and 190 dB 2
  • Proposed
  • Level A
  • take 3
  • Proposed
  • Level B
  • take 3
  • Percent of population 4 Population trend 5
    Antarctic minke whale 0.054983 2,276, 396, - 396 2,276 0.519 Unknown. Blue whale 0.000032 2, 0, - 0 2 0.074 Unknown. Bryde's whale 0.000262 2, 0, - 0 2 0.005 Unknown. Common minke whale 0.054983 2,276, 396, - 396 2,276 0.519 Unknown. Fin whale 0.002888 106, 28, - 28 106 0.609 Unknown. Humpback whale 0.000078 3, 0, - 0 3 0.200 ↑. Sei whale 0.002688 106, 28, - 28 106 1.340 Unknown. Southern right whale NA 18, 0, - 0 18 0.150 Unknown. Sperm whale 0.001214 50, 0, - 0 50 0.014 Unknown. Dwarf sperm whale 0.000041 2, 0, - 0 2 0.053 Unknown. Pygmy sperm whale 0.000021 2, 0, - 0 2 0.053 Unknown. Cuvier's beaked whale 0.003831 156, 28, - 28 156 0.031 Unknown. Andrew's beaked whale 0.000511 28, 0, - 0 28 0.005 Unknown. Arnoux's beaked whale 0.000956 28, 0, - 0 28 0.005 Unknown. Blainville's beaked whale 0.000663 28, 0, - 0 28 0.005 Unknown. Gervais' beaked whale 0.001334 56, 0, - 0 56 0.009 Unknown. Gray's beaked whale 0.000944 28, 0, - 0 28 0.005 Unknown. Hector's beaked whale 0.000246 0, 0, - 0 0 0.000 Unknown. Shepherd's beaked whale 0.000816 28, 0, - 0 28 0.005 Unknown. Strap-toothed beaked whale 0.000638 28, 0, - 0 28 0.005 Unknown. True's beaked whale 0.000876 28, 0, - 0 28 0.005 Unknown. Southern bottlenose whale 0.000917 28, 0, - 0 28 0.005 Unknown. Bottlenose dolphin 0.020744 848, 156, - 156 848 0.167 Unknown. Rough-toothed dolphin 0.000418 22, 0, - 0 22 8.118 Unknown. Pantropical spotted dolphin 0.003674 156, 28, - 28 156 5.521 Unknown. Striped dolphin 0.174771 7,208, 1,294, - 1,294 7,208 15.513 Unknown. Fraser's dolphin 0.001568 56, 0, - 0 56 0.019 Unknown. Spinner dolphin 0.006255 262, 50, - 50 262 0.026 Unknown. Atlantic spotted dolphin 0.077173 3,180, 580, - 580 3,180 8.409 Unknown. Clymene dolphin 0.000258 0, 0, - 0 0 0.000 Unknown. Risso's dolphin 0.037399 1,540, 290, - 290 1,540 8.844 Unknown. Long-beaked common dolphin 0.000105 0, 0, - 0 0 0.000 Unknown. Short-beaked common dolphin 0.129873 5,356, 954, - 954 5,356 3.637 Unknown. Southern right whale dolphin NA 1,624, 0, - 0 1,624 Unknown Unknown. Melon-headed whale 0.006285 262, 50, - 50 262 0.624 Unknown. Pygmy killer whale 0.001039 50, 0, - 0 50 1.395 Unknown. False killer whale 0.000158 0, 0, - 0 0 0.000 Unknown. Killer whale 0.003312 134, 28, - 28 134 0.324 Unknown. Long-finned pilot whale 0.007614 318, 56, - 56 318 0.187 Unknown. Short-finned pilot whale 0.015616 636, 106, - 106 636 0.371 Unknown. Southern Elephant Seal NA 56, 0, 0 0 56 0.009 Unknown. Subantarctic fur seal NA 56, 0, 0 0 56 0.018 Unknown. 1 Densities (where available) are expressed as number of individuals per km2. Densities estimated from the Navy's Atlantic Fleet Training and Testing Navy Marine Species Density Database maps for the survey area in the Southern Atlantic Ocean. NA = Not available. 2 See preceding text for information on NMFS' take estimate calculations. NA = Not applicable. 3 Modeled instances of exposures include adjustments for species with no density information. The Level A estimates are overestimates of predicted impacts to marine mammals as the estimates do not take into consideration the required mitigation measures for shutdowns or power downs if a marine mammal is likely to enter the 180 dB exclusion zone while the airguns are active. 4 Table 2 in this notice lists the stock species abundance estimates used in calculating the percentage of the population. 5 Population trend information from Waring et al., 2015. ↑= Increasing. ↓ = Decreasing. Unknown = Insufficient data.

    Lamont-Doherty did not estimate any additional take from sound sources other than airguns. NMFS does not expect the sound levels produced by the echosounder and sub-bottom profiler to exceed the sound levels produced by the airguns. Lamont-Doherty will not operate the multibeam echosounder and sub-bottom profiler during transits to and from the survey area, (i.e., when the airguns are not operating) and in between transits to each of the five OBS tracklines, and, therefore, NMFS does not anticipate additional takes from these sources in this particular case.

    NMFS considers the probability for entanglement of marine mammals as low because of the vessel speed and the monitoring efforts onboard the survey vessel. Therefore, NMFS does not believe it is necessary to authorize additional takes for entanglement at this time.

    The Langseth will operate at a relatively slow speed (typically 4.6 knots [8.5 km/h; 5.3 mph]) when conducting the survey. Protected species observers would monitor for marine mammals, which would trigger mitigation measures, including vessel avoidance where safe. Therefore, NMFS does not anticipate nor do we authorize takes of marine mammals from vessel strike.

    There is no evidence that the planned survey activities could result in serious injury or mortality within the specified geographic area for the requested proposed Authorization. The required mitigation and monitoring measures would minimize any potential risk for serious injury or mortality.

    Analysis and Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (i.e., population level effects) forms the basis of a negligible impact finding. Thus, an estimate of the number of takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    In making a negligible impact determination, NMFS considers:

    • The number of anticipated injuries, serious injuries, or mortalities;

    • The number, nature, and intensity, and duration of harassment; and

    • The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);

    • The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);

    • Impacts on habitat affecting rates of recruitment/survival; and

    • The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental takes.

    To avoid repetition, our analysis applies to all the species listed in Table 5, given that NMFS expects the anticipated effects of the seismic airguns to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, NMFS has identified species-specific factors to inform the analysis.

    Given the required mitigation and related monitoring, NMFS does not anticipate that serious injury or mortality would occur as a result of Lamont-Doherty's proposed seismic survey in the South Atlantic Ocean. Thus the proposed authorization does not authorize any mortality.

    NMFS' predicted estimates for Level A harassment take for some species are likely overestimates of the injury that will occur. NMFS expects that successful implementation of the required visual and acoustic mitigation measures would avoid Level A take in some instances. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. Nonetheless, although NMFS expects that Level A harassment is unlikely to occur at the numbers proposed to be authorized, because it is difficult to quantify the degree to which the mitigation and avoidance will reduce the number of animals that might incur PTS, we are proposing to authorize, and have included in our analyses, the modeled number of Level A takes, which does not take the mitigation or avoidance into consideration. However, because of the constant movement of the Langseth and the animals, as well as the fact that the boat is not staying in any one area in which individuals would be expected to concentrate for any long amount of time (i.e., since the duration of exposure to loud sounds will be relatively short), we anticipate that any PTS incurred would be in the form of only a small degree of permanent threshold shift and not total deafness.

    Of the marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, the following species are listed as endangered under the ESA: Blue, fin, humpback, sei, Southern right whale, and sperm whales. The western north Atlantic population of humpback whales is known to be increasing. The other marine mammal species that may be taken by harassment during Lamont-Doherty's seismic survey program are not listed as threatened or endangered under the ESA.

    Cetaceans. Odontocete reactions to seismic energy pulses are usually thought to be limited to shorter distances from the airgun(s) than are those of mysticetes, in part because odontocete low-frequency hearing is assumed to be less sensitive than that of mysticetes. Given sufficient notice through relatively slow ship speed, NMFS generally expects marine mammals to move away from a noise source that is annoying prior to becoming potentially injurious, although Level A takes for a small group of species are proposed for authorization here.

    Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect annual rates of recruitment or survival of marine mammals in the area. Based on the size of the South Atlantic Ocean where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area will be minor based on the fact that other feeding areas exist elsewhere. Taking into account the planned mitigation measures, effects on cetaceans are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Animals are not expected to permanently abandon any area that is surveyed, and any behaviors that are interrupted during the activity are expected to resume once the activity ceases. Only a small portion of marine mammal habitat will be affected at any time, and other areas within the South Atlantic Ocean would be available for necessary biological functions.

    Pinnipeds. During foraging trips, extralimital pinnipeds may not react at all to the sound from the proposed survey, ignore the stimulus, change their behavior, or avoid the immediate area by swimming away or diving. Behavioral responses can range from a mild orienting response, or a shifting of attention, to flight and panic. Research and observations show that pinnipeds in the water are tolerant of anthropogenic noise and activity. They may react in a number of ways depending on their experience with the sound source and what activity they are engaged in at the time of the exposure. Significant behavioral effects are more likely at higher received levels within a few kilometers of the source and activities involving sound from the proposed survey would not occur near any haulout areas where resting behaviors occur.

    Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). While NMFS anticipates that the seismic operations would occur on consecutive days and the duration of the survey would last no more than 28 days, the seismic operations would increase sound levels in the marine environment in a relatively small area surrounding the vessel (compared to the range of most of the marine mammals within the proposed survey area), which is constantly travelling over distances, and some animals may only be exposed to and harassed by sound for less than a day.

    For reasons stated previously in this document and based on the following factors, Lamont-Doherty's specified activities are not likely to cause long-term behavioral disturbance, serious injury, or death, or other effects that would be expected to adversely affect reproduction or survival of any individuals. They include:

    • The anticipated impacts of Lamont-Doherty's survey activities on marine mammals are temporary behavioral changes due, primarily, to avoidance of the area;

    • The likelihood that, given the constant movement of boat and animals and the nature of the survey design (not concentrated in areas of high marine mammal concentration), PTS incurred would be of a low level;

    • The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;

    • The expectation that the seismic survey would have no more than a temporary and minimal adverse effect on any fish or invertebrate species that serve as prey species for marine mammals, and therefore consider the potential impacts to marine mammal habitat minimal; and

    • The knowledge that the survey is taking place in the open ocean and not located within an area of biological importance for breeding, calving, or foraging for marine mammals.

    Table 4 in this document outlines the number of requested Level A and Level B harassment takes that we anticipate as a result of these activities.

    Required mitigation measures, such as special shutdowns for large whales, vessel speed, course alteration, and visual monitoring would be implemented to help reduce impacts to marine mammals. Based on the analysis herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that Lamont-Doherty's proposed seismic survey would have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers

    As mentioned previously, NMFS estimates that Lamont-Doherty's activities could potentially affect, by Level B harassment, 38 species of marine mammals under our jurisdiction. NMFS estimates that Lamont-Doherty's activities could potentially affect, by Level A harassment, up to 16 species of marine mammals under our jurisdiction.

    For each species, the numbers of take being proposed for authorization are small numbers relative to the population sizes: Less than 16 percent for striped dolphins, less than 8 percent of Risso's dolphins, less than 6 percent for pantropical spotted dolphins, and less than 4 percent for all other species. NMFS has provided the regional population and take estimates for the marine mammal species that may be taken by Level A and Level B harassment in Table 4 in this notice. NMFS finds that the proposed incidental take described in Table 4 for the proposed activity would be limited to small numbers relative to the affected species or stocks.

    Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated by this action.

    Endangered Species Act (ESA)

    There are six marine mammal species listed as endangered under the Endangered Species Act that may occur in the proposed survey area. Under section 7 of the ESA, NSF initiated formal consultation with NMFS on the proposed seismic survey. NMFS (i.e., National Marine Fisheries Service, Office of Protected Resources, Permits and Conservation Division) also consulted internally with NMFS on the proposed issuance of an Authorization under section 101(a)(5)(D) of the MMPA.

    In January, 2016, the Endangered Species Act Interagency Cooperation Division issued a Biological Opinion with an Incidental Take Statement to us and to the NSF, which concluded that the issuance of the Authorization and the conduct of the seismic survey were not likely to jeopardize the continued existence of blue, fin, humpback, sei, South Atlantic right and sperm whales. The Biological Opinion also concluded that the issuance of the Authorization and the conduct of the seismic survey would not affect designated critical habitat for these species.

    National Environmental Policy Act (NEPA)

    NSF has prepared an environmental analysis titled “Environmental Analysis of a Marine Geophysical Survey by the R/V Marcus G. Langseth in South Atlantic Ocean, Austral Summer 2016.” NMFS has also prepared an environmental assessment (EA) titled, “Proposed Issuance of an Incidental Harassment Authorization to Lamont Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in the South Atlantic Ocean, January-March 2016,” which tiers off of NSF's environmental analysis. NMFS and NSF provided relevant environmental information to the public through the notice of proposed Authorization (80 FR 75355, December 1, 2015) and considered public comments received prior to finalizing our EA and deciding whether or not to issue a Finding of No Significant Impact (FONSI). NMFS concluded that issuance of an Incidental Harassment Authorization to Lamont-Doherty would not significantly affect the quality of the human environment and prepared and issued a FONSI in accordance with NEPA and NOAA Administrative Order 216-6. NMFS' EA and FONSI for this activity are available upon request (see ADDRESSES).

    Authorization

    NMFS has issued an Incidental Harassment Authorization to Lamont-Doherty for the take of marine mammals, incidental to conducting a marine seismic survey in the South Atlantic Ocean January through March 2016.

    Dated: January 11, 2016. Perry F. Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-00660 Filed 1-14-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE396 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Issuance seven new scientific research permits, and fourteen renewal scientific research permits.

    SUMMARY:

    Notice is hereby given that NMFS has issued Permit 1440-2R to the Interagency Ecological Program (IEP); Permit 13675-2R to the Fishery Foundation of California (FFC); Permit 13791-2R to the United States Fish and Wildlife Service (USFWS), Stockton Fish and Wildlife Office (SFWO); Permit 14516-2R to Dr. Jerry Smith, Associate Professor in the Department of Biological Sciences at San Jose State University; Permit 15215 to the California Department of Fish and Wildlife (CDFW), Fisheries Branch, Fish Health Laboratory; Permit 16274 to the Mendocino Redwood Company (MRC); Permit 17063 to the United States Forest Service (USFS), Redwood Sciences Laboratory; Permit 17077-2R to Dr. Peter Moyle, with the University of California at Davis, Department of Wildlife, Fish and Conservation Biology; Permit 17219 and Permit 19320 to the NMFS Southwest Fisheries Science Center (SWFSC), Fisheries Ecology Division; Permit 17272 to the USFWS, Arcata Fish and Wildlife Office Fisheries Program (AFWO); Permit 17351 to the Green Diamond Resource Company (GDRC); Permit 17396 to the USFWS, Anadromous Fish Restoration Program (AFRP); Permit 17867 to the Humboldt Redwood Company (HRC); Permit 17877 to the Bureau of Reclamation (BOR); Permit 17916 to the Bureau of Land Management (BLM), Arcata Field Office; Permit 18012 to the CDFW, Bay Delta Region; Permit 18712 to H.T. Harvey & Associates; Permit 18937 to the Scripps Institution of Oceanography, University of California, San Diego, California Sea Grant College Program (CSGCP); Permit 19121 to the United States Geological Survey (USGS), California Water Survey; and Permit 19400 to ICF consulting.

    ADDRESSES:

    The approved application for each permit is available on the Applications and Permits for Protected Species (APPS), https://apps.nmfs.noaa.gov Web site by searching the permit number within the Search Database page. The applications, issued permits and supporting documents are also available upon written request or by appointment: Protected Resources Division, NMFS, 777 Sonoma Avenue, Room 325, Santa Rosa, CA 95404 ph: (707) 575-6080, fax: (707) 578-3435).

    FOR FURTHER INFORMATION CONTACT:

    Jeff Abrams, Santa Rosa, CA (ph.: 707-575-6080), Fax: 707-578-3435, email: [email protected]).

    SUPPLEMENTARY INFORMATION:

    The issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications: (1) Are applied for in good faith; (2) would not operate to the disadvantage of the listed species which are the subject of the permits; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations (50 CFR parts 222-226) governing listed fish and wildlife permits.

    Species Covered in This Notice

    The following listed species are covered in this notice:

    Chinook salmon (Oncorhynchus tshawytscha): Threatened Snake River spring/summer-run (SR spr/sum); threatened Lower Columbia River (LCR);threatened California Coastal (CC); threatened Central Valley spring-run (CVSR); endangered Sacramento River winter-run (SRWR).

    Coho salmon (O. kisutch): Threatened Southern Oregon/Northern California Coast (SONCC); endangered Central California Coast (CCC).

    Steelhead (O. mykiss): Threatened Northern California (NC); threatened CCC; threatened California Central Valley (CCV); threatened South-Central California Coast (S-CCC); endangered Southern California (SC).

    North American green sturgeon (Acipenser medisrostris): Threatened southern distinct population segment (sDPS).

    Eulachon (Thaleichthys pacificus): threatened sDPS.

    Permits Issued Permit 1440-2R

    A notice of receipt of an application for scientific research permit renewal (1440-2R) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 1440-2R was issued to IEP on December 23, 2015 and expires on December 31, 2020.

    Permit 1440-2R authorizes IEP to take CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, CCC steelhead and sDPS green sturgeon while conducting 11 surveys in the San Francisco Bay-Delta region. The studies examine the abundance, and temporal and spatial distribution of various life stages of pelagic fishes of management concern, including listed species, and their food (e.g., zooplankton) resources, along with environmental conditions. These IEP studies are intended to monitor/inform the effectiveness of water operations, aquatic habitat restoration, and fish management practices, thereby providing a benefit to listed fish. The 11 studies included are: (1) Adult Striped Bass, a striped bass population study; (2) Fall Midwater Trawl, which monitors the relative abundance of native and introduced fish species; (3) Sturgeon Tagging, a white sturgeon tagging program; (4) Summer Townet, which targets delta smelt and young-of-the-year striped bass; (5) Estuarine and Marine Fish, a San Francisco Bay trawl study; (6) 20mm Survey, a study to monitor juvenile delta smelt distribution and relative abundance; (7) Yolo Bypass, a research effort to understand fish and invertebrate use of the Yolo Bypass seasonal floodplain; (8) Upper Estuary Zooplankton, which targets multiple zooplankters; (9) Spring Kodiak Trawl, which determines the relative abundance and distribution of spawning delta smelt; (10) Suisun Marsh Survey, monitoring to determine the effects of the Suisun Marsh Salinity Control Gates operation on fish, including listed salmonids; and (11) Smelt Larva Survey, which provides distribution data for longfin smelt larvae in the Delta. Listed fish may be captured by fyke net, gill net, midwater trawl, trammel net, hoop net, otter trawl, larval fish net, zooplankton net, Kodiak trawl net, rotary screw trap, and beach seine. The majority of captured fishes will be identified to species, enumerated, measured for standard length, and released. Juvenile SRWR and CVSR Chinook salmon will be identified using the Delta Model Length-at-Date-of-Capture Table. Listed species will be processed first and released. A subsample of wild juvenile SRWR and CVSR Chinook salmon sized captures will be tissue sampled for genetic analysis, and a subsample of hatchery juvenile SRWR and CVSR Chinook salmon sized captures will be sacrificed (i.e., intentional directed mortality) in order to collect coded wire tag data for management purposes and for stock confirmation. To reduce handling mortality, investigators will conduct water to water transfers, use fish-friendly nets, avoid handling when possible, and will not release fish from a vessel under way.

    Permit 13675-2R

    A notice of receipt of an application for scientific research permit renewal (13675-2R) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 13675-2R was issued to the FFC on December 23, 2015 and expires on December 31, 2020.

    Permit 13675-2R authorizes the FFC annually take juvenile-CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, and sDPS green sturgeon while conducting research designed to monitor the use of the Fremont Landing Conservation Bank (FLCB) and the Bullock Bend Mitigation Bank (BBMB) at the confluence of the Sacramento and Feather rivers in California's Central Valley. The banks are restored areas that provides mitigation for impacts on listed salmonid species in the Central Valley. The monitoring will evaluate the use of the FLCB and the BBMB by listed fish, provide data directly related to success criteria described in the conservation/mitigation bank management plan, and benefit listed fish by informing adaptive management strategies being conducted at the FLCB and the BBMB. The researchers will use beach seines and fyke nets to capture listed fish. Once captured, all listed fish will be identified by species and released. A subsample will be measured for fork length. No anesthesia will be used, and no additional handling procedures would take place. Captured fish will remain completely wetted at all times to minimize stress. Any fish exhibiting signs of physiological stress would be immediately released. The researchers are not proposing to kill any of the fish they capture, but some may die as an unintended result of the research.

    Permit 13791-2R

    A notice of receipt of an application for scientific research permit renewal (13791-2R) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 13791-2R was issued to the USFWS SFWO on December 23, 2015 and expires on December 31, 2020.

    Permit 13791-2R authorizes the USFWS SFWO to annually take juvenile and smolt CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, and juvenile and larval sDPS green sturgeon while conducting seven research studies. The purpose of the studies is to evaluate/monitor the: (1) Abundance, temporal and spatial distribution, and survival of salmonids and other fishes in the lower Sacramento and San Joaquin rivers and the San Francisco Estuary (SFE); (2) occurrence and habitat use of fishes, especially early life history stages, within the Liberty Island and Cache Slough Complex, (3) relative gear efficiencies for all IEP fish survey nets, and also the distribution of delta smelt; (4) littoral habitat use of juvenile Chinook salmon within the Delta; (5) the effect of projected water operations on delta smelt; (6) length at date race criteria of SRWR Chinook salmon sized juvenile Chinook salmon; and (7) SRWR and CVSR Chinook salmon floodplain usage in the Yolo bypass. These studies will result in capture/handle/release take, tissue sampling, and/or intentional directed mortality. Intentional directed mortality will apply to only juvenile hatchery adipose clipped salmonids and larval green sturgeon. Capture methods will include Kodiak trawl, midwater trawl, beach seine, zooplankton net, larval net, gill net, fyke net, purse seine, and boat electrofishing. All listed fish except adipose fin clipped SRWR and CVSR Chinook salmon will be immediately collected from the sampling gears, placed in containers filled with river water collected at the location being sampled, processed, held in a recovery container filled with aerated river water, and subsequently released at the sampled location. A fin tissue sample will be collected from a subset of natural origin SRWR and CVSR Chinook salmon for stock determination. The purpose of intentional mortality of hatchery origin (adipose clipped) SRWR and CVSR Chinook salmon will be to collect coded wire tags (CWT), and up ten green sturgeon larvae will be killed during larval fish collections in order to identify the contents of the larval trawl net, which can only be achieved in the lab. The data provided by these studies will provide natural resource managers real-time biological and population data on fishes to evaluate the effect of water operations and fish management practices within the SFE, thereby benefiting listed fish.

    Permit 14516-2R

    A notice of receipt of an application for scientific research permit renewal (14516-2R) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 14516-2R was issued to Dr. Jerry Smith on December 23, 2015 and expires on December 31, 2020.

    Permit 14516-2R authorizes Dr. Jerry Smith, Associate Professor in the Department of Biological Sciences at San Jose State University to annually take multiple life stages of CCC coho salmon and CCC steelhead while conducting two studies: (1) Stream and lagoon surveys in Gazos Creek, Waddell Creek, and Scott Creek; and (2) lagoon surveys in Pescadero Creek Lagoon and San Gregorio Lagoon. The purpose of the studies is to: (1) Provide an annual index of relative abundance for juvenile listed salmonids, provide data on lagoon and upstream habitat utilization and growth, and provide an assessment of trends and year to year response to variations in habitat conditions; and (2) determine juvenile listed salmonid abundance and growth, and provide adult life history information in the lagoons. Capture methods will include backpack electrofishing, and beach seine. Captured salmonids will be measured, and a subset of juvenile captures and all adults will have scale samples taken, before being released at the capture location. A subsample of juvenile steelhead will also be marked via caudal fin clip to perform a mark-recapture analysis. Scale and fin tissue samples will be taken from adult fish carcasses. Captured live fish will be held in flow-through live cars, covered with a towel to provide shade and cover to calm fish. Adult fish will be processed and released first. In lagoons, live cars will be kept in deeper water with cooler temperatures and less turbidity to prevent warming above ambient temperatures or a decrease in dissolved oxygen. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 15215

    A notice of receipt of an application for scientific research permit (15215) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 15215 was issued to CDFW on December 23, 2015 and expires on December 31, 2020.

    Permit 15215 authorizes the CDFW, Fisheries Branch, Fish Health Laboratory to take endangered SRWR Chinook salmon, CCC coho salmon and SC steelhead for a period of five years. The purpose of the research is to investigate wild fish kills/disease outbreaks that could occur in California that involve federally listed endangered species. The research will benefit the listed species by providing fisheries managers with the necessary information to help alleviate future outbreaks of fish disease through proper management of fishery and water resources. The research will only be conducted in the event of elevated and unexplained endangered species mortality or the presence of clinically diseased animals. Given such a triggering event, endangered fish will be collected in any of the state waters of California in which a disease outbreak/fish die-off occurred. Adult and juvenile endangered fish will be collected by hand or dip-net, as only dead and/or moribund fish, or fish displaying clinical signs of disease, will be collected. Moribund or clinically diseased fish will be euthanized (i.e., intentional directed mortality). Trained CDFW pathologists and veterinarians will assess moribund or diseased fish prior to euthanasia, and only fish that will likely die regardless of the actions proposed by CDFW will be euthanized. Necropsies will be performed on dead and euthanized captured fish either in the laboratory or in the field, fish will be examined for signs of parasitic and bacterial infections, and fin and/or internal tissues will be collected for virology, histopathology, immunological testing and/or DNA testing.

    Permit 16274

    A notice of receipt of an application for scientific research permit renewal (16274) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 16274 was issued to the MRC on December 23, 2015 and expires on December 31, 2020.

    Permit 16274 authorizes the MRC to take CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, and CCC steelhead while conducting research and monitoring to assess juvenile and adult populations of salmonids and their distribution in streams within MRC's property. Research will be conducted in several watersheds within Mendocino and northern Sonoma counties. The data gathered will benefit listed fish by informing a better understanding of salmonid distribution, abundance, and habitat utilization in these areas. Juvenile salmonids will be captured by backpack electrofishing, anesthetized, weighed, measured to fork length, and released. A subsample of juvenile salmonids will be fin clipped to mark and to collect tissue samples for genetic analysis. Live adults and/or juveniles will be observed via snorkel surveys and spawning surveys. Carcasses will be measured and then marked to ensure duplicate measurements were not made. Outmigrant trapping will be conducted using a rotary screw trap or weir/pipe trap; captured outmigrants will be anesthetized, measured, and released. A subsample of outmigrants will be marked (dye, elastomer, or fin clip) or Passive Integrated Transponder (PIT) tagged. All anesthetized fish will be allowed to recover in a bucket containing aerated natal water prior to being released back into the stream from which they were taken. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 17063

    A notice of receipt of an application for scientific research permit renewal (17063) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17063 was issued to the USFS, Redwood Sciences Laboratory on December 23, 2015 and expires on December 31, 2020.

    Permit 170963 authorizes the USFS, Redwood Sciences Laboratory to perform eight studies that together will take CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, CC steelhead, and SC steelhead. The purposes of the eight studies are: (1) To investigate the invasion history of non-listed speckled dace in the Van Duzen River and the Eel River, (2) to investigate the invasion history of non-listed California roach in the Van Duzen River and the Eel River, (3) to develop an Individual Based Modeling (IBM) approach to predict the effects of management practices on salmonid population in Northern California, (4) to link abiotic factors (e.g., distance to spawning ground) to the expression of an anadromous or resident life history for O. mykiss in the Eel River, (5) to link the distribution and movement of watershed products (e.g., wood, sediment, and water) in tributaries and mainstem channels to fish diversity and abundance in Northern California rivers, (6) to provide managers with insights into the status and relatedness of Sacramento sucker populations in northern California, (7) to document the speckled dace invasion of the Mad River, and (8) to provide managers with a tool to predict the effects of management decisions on Santa Ana suckers in the Santa Ana River. Listed adult and juvenile salmonids will be observed via snorkel surveys. Listed juvenile salmonids will be captured via backpack and/or boat electrofishing for all eight studies, and also via beach seine and/or fyke net for Study 6 (i.e., Sacramento sucker relatedness and distribution). For most studies, listed salmonids that are captured will be anesthetized, measured and/or weighed, and released. Captured fishes will be held in multiple live cars to prevent overcrowding and to maintain acceptable water quality conditions. In addition to capturing, handling and releasing fish, Study 4 (i.e. factors affecting the expression of an anadromous versus resident life history in O. mykiss) will also include intentional directed mortality for otolith microchemical analyses. A maximum of four O. mykiss will be sacrificed from each of seventy sample streams distributed throughout the Eel River, which will include both anadromous (listed as threatened) and resident (non-listed) life history forms.

    Permit 17077-2R

    A notice of receipt of an application for scientific research permit renewal (17077-2R) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17077-2R was issued to Dr. Peter Moyle on December 23, 2015 and expires on December 31, 2020.

    Permit 17077-2R authorizes Dr. Peter Moyle, with the University of California at Davis, Department of Wildlife, Fish and Conservation Biology, to take listed species while conducting research designed to develop a better understanding of how physical habitat, flow and other factors interact to maintain assemblages of native and non-native aquatic species in the upper SFE. This study will provide knowledge about food web and habitat support for native fishes, including listed anadromous fish, which are suspected of utilizing such habitats during development. While listed fish are not the target species for this study, the study will benefit listed fish by improving management decisions regarding creating additional habitat, and helping to anticipate the effects of drought and climate change on food and habitat availability. Sampling will be conducted in three distinct regions of the SFE: (1) The Cache-Lindsey complex, (2) the Sherman Lake complex and (3) Suisun Marsh, and will take juvenile and adult CVSR Chinook salmon, SRWR Chinook Salmon, CCV steelhead, and sDPS green sturgeon. Capture methods will be similar for each of these regions, and will include otter trawling, beach seining and boat electrofishing, however electrofishing will be suspended immediately upon encountering a listed species. All sampled fish will be placed in a bucket with ambient water and an aerator, examined for responsiveness and returned to the water as soon as possible with a minimum of handling, after identification and length estimates were made. Juvenile SRWR and CVSR Chinook salmon will be identified using published size-at-date criteria. Only adult green sturgeon captures will receive additional processing beyond identification and measuring for length. Adult green sturgeon will be scanned for the presence of a PIT tag, and a soft pelvic fin tissue sample will be collected. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 17219

    A notice of receipt of an application for scientific research permit renewal (17219) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17219 was issued to the NMFS SWFSC, Fisheries Ecology Division on December 23, 2015 and expires on December 31, 2020.

    Permit 17219 authorizes the NMFS SWFSC, Fisheries Ecology Division to conduct research throughout California that will include take of SRWR Chinook salmon, CVSR Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, CCC steelhead, CCV steelhead, S-CCC steelhead, SC steelhead, and juvenile sDPS green sturgeon. The research will benefit listed fish by supporting conservation and management of listed anadromous salmonids and green sturgeon in California by directly addressing information needs identified by NMFS and other agencies. FED studies address priority topics identified in NMFS technical recovery team reports, NMFS recovery plans, joint programs such as the California Coastal Monitoring Program developed by NMFS and CDFW, and state programs such as the Fisheries Restoration Grant Program. Research objectives of specific studies include: (1) Estimating population abundance and dynamics; (2) evaluating factors affecting growth, survival, and life-history; (3) assessing life-stage specific habitat use and movement; (4) collecting data necessary to construct various types of models (e.g., population, life-cycle, bioenergetics, and habitat-use models); (5) determining genetic structure of populations; (6) evaluating the effects of activities such as water management and habitat restoration on populations; and (7) developing improved sampling and monitoring methods.

    Research and take will involve various life stages (juvenile, smolt, adult, and carcass). Listed fish will be observed during spawning surveys, and captured by electrofishing, beach seine, rotary screw trap, and/or hook-and-line. The majority of captured fish will be anesthetized, measured to fork length, and released. A subsample of captured fish will be further sampled by collection of scales, fin clips, gill clips or stomach contents; and/or marking or tagging including fin tissue clips, PIT tags, elastomer tags, acoustic tags, or radio tags. Species care after capture will include use of aerated buckets or live cars for holding and recovery, and minimization of handling time. The majority of fish captured will be released alive at their point of capture following recovery from handling. However, in limited cases some fish will be: (1) Retained in enclosures in streams for short-term growth and survival experiments and then released, or (2) euthanized for analysis of otoliths and/or parasitological/pathological studies of parasites and diseases of wild juvenile steelhead.

    Permit 17272

    A notice of receipt of an application for scientific research permit renewal (17272) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17272 was issued to the USFWS AFWO on December 23, 2015 and expires on December 31, 2020.

    Permit 17272 authorizes the USFWS AFWO to take multiple life stages of hatchery and wild SONCC coho salmon via monitoring and research activities in Northwest California. The purposes of the five studies included are to monitor: (1) Chinook salmon fry production and disease incidence in the Klamath River below Iron Gate dam, (2) Chinook salmon escapement in the mainstem Klamath River below the Shasta River confluence, (3) Chinook salmon escapement in the mainstem Klamath River from Iron Gate dam to the Shasta River confluence, (4) coho salmon escapement between Iron Gate Dam and the Indian Creek confluence, and (5) long-term salmonid disease incidence in the lower Klamath River. Trained AFWO crews will conduct redd surveys, on foot and from rafts, which could observe/harass spawning SONCC coho salmon. Crews will spend minimal time around redds and avoid walking on redds. Trained AFWO crews will also capture juvenile SONCC coho salmon using rotary-screw traps, frame nets, and beach seines. Juvenile coho salmon will be held in aerated holding buckets filled with fresh river water then anesthetized, measured for fork length, weighed, and released back into the river. There will be some intentional mortality of hatchery juvenile coho salmon for disease analysis. Aside from these hatchery fish, the researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities. The studies will benefit listed coho salmon by informing the AFWO goal to develop conservation strategies for aquatic resources and to evaluate the success of aquatic habitat restoration efforts that will lead to the recovery and conservation of fish populations and fisheries in northern California.

    Permit 17351

    A notice of receipt of an application for scientific research permit renewal (17351) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17351 was issued to the GDRC on December 23, 2015 and expires on December 31, 2020.

    Permit 17351 authorizes the GDRC to take listed salmonids while conducting research and monitoring under an existing Aquatic Habitat Conservation Plan (AHCP). The AHCP, which was approved in 2007 and is valid until 2057, identifies potential threats to three listed fish species that may result from GDRC's timber harvest activities and describes minimization and mitigation measures and effectiveness monitoring to address potential threats. The requested take limits will allow for implementation of monitoring and research activities in several northern California watersheds including the Winchuk River, Smith River, Lower Klamath basin tributaries, Mad River, Little River, several Humboldt Bay tributaries, and Eel River. The three species identified which will be taken as a direct result of this monitoring are CC Chinook salmon, SONCC coho salmon, and NC steelhead. Research and take will involve various life stages (fry, juvenile, smolt, adult, and carcass). Trained GDRC crews will observe listed salmonids during snorkel surveys and spawning surveys. Crews will avoid walking in suitable spawning habitats (e.g., riffle crests). Listed salmonids will be captured by various capture methods including backpack electrofishing, kick net sampling, rotary screw trapping, v-notch weir outmigrant trapping, and minnow trapping. Most captured fish will be measured and released. A subsample of captured fish will be anesthetized, then marked via dorsal fin clip, fin tissue sampled, scale sampled, and/or PIT tagged. Anesthetized individuals will be allowed to recover in mesh containers placed in the stream channel prior to release. Data collected will be used to document long-term population trends and better understand the potential impacts on the covered species and their habitats that may result from AHCP covered activities. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 17396

    A notice of receipt of an application for scientific research permit (17396) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17396 was issued to the USFWS AFRP on December 23, 2015 and expires on December 31, 2020.

    Permit 17396 authorizes the USFWS AFRP to take listed fish while conducting research designed to: (1) Provide data necessary to evaluate the effectiveness of AFRP restoration projects, including appraisal of spawning gravel augmentation, in-channel and floodplain habitat enhancement actions, and water allocation/flow regime alteration actions; and (2) provide reconnaissance-level population and biological data on contemporary anadromous fish population patterns within the Central Valley of California, in order to prioritize and select future restoration projects to benefit anadromous salmonids. All AFRP restoration monitoring projects will serve to benefit anadromous salmonids by providing data on restoration project effectiveness, and providing valuable information relating to adaptive management procedures. Take of listed species including various life stages of CVSR Chinook salmon, CCV steelhead, and sDPS green sturgeon will result from activities in the following five projects: (1) Bobcat flat restoration effectiveness monitoring in the lower Tuolumne River; (2) adult sturgeon acoustic telemetry in the lower San Joaquin basin; (3) San Joaquin River sturgeon spawning habitat assessment; (4) steelhead sampling and acoustic tracking in the lower Stanislaus, Tuolumne and Merced Rivers; and (5) fish reconnaissance in the San Joaquin River system. Observe/harass take will result from snorkel surveys. Capture methods will include beach seine, trammel nets, gill nets, fyke nets, hook-and-line, egg mats, benthic d-nets, and boat and backpack electrofishing. The majority of captured listed fish will be handled and released; a subsample of captures will be anesthetized, scale sampled, fin clipped (to mark and to collect fin tissue for genetic analysis), acoustic tagged, and/or subject to intentional directed mortality. Green sturgeon eggs (n = 100) and larvae (n = 5) will be intentionally sacrificed, which will be necessary to provide voucher tissue specimens, and will benefit the species by providing critical information on green sturgeon spawning habitat. To minimize physiological stress, all sturgeon will be held in a net pen submerged in river or with flowing water through their gills while waiting to be handled. All listed salmonids will be immediately collected from the sampling gears, placed in five gallon buckets filled with fresh river water from the location being sampled, processed, held in another container filled with fresh river water for recovery, and subsequently released in the sampled location. The new information on these species generated by these projects will help prioritize future restoration projects, thus benefiting listed species.

    Permit 17867

    A notice of receipt of an application for scientific research permit renewal (17867) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17867 was issued to the HRC on December 23, 2015 and expires on December 31, 2020.

    Permit 17867 authorizes the HRC to take juvenile and adult CC Chinook salmon, SONCC coho salmon and NC steelhead while conducting research and monitoring that satisfies two objectives: (1) To comply with CDFW's Restorable Class I policy by sampling reaches through snorkel and electrofishing methods to identify Class I habitat within proposed timber harvest plans, and (2) to monitor fish occupancy trends at the reach, sub basin, watershed and HRC property level over time by repeated snorkel surveys at index and randomly selected reaches. Adult and juvenile salmonids will be observed during snorkel surveys, and juvenile salmonids will be captured by backpack electrofishing. Snorkel surveys will be the preferred method of detecting presence/absence of fish species. Captured fish will be identified, and transported upstream of the project area. All captured specimens will be kept in aerated buckets, observed closely, and not released until fully recovered. The monitoring will help to achieve HRC's fisheries program's general goal, which is to determine the occurrence, distribution, population and habitat conditions of anadromous fishes on HRC lands as well as to monitor, protect, restore and enhance the anadromous fishery resources in watersheds owned by HRC. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 17877

    A notice of receipt of an application for scientific research permit renewal (17877) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17877 was issued to the BOR on December 23, 2015 and expires on December 31, 2020.

    Permit 17877 authorizes the BOR to take juvenile, smolt, adult and carcasses of SONCC coho salmon via: (1) Observation/harassment by way of snorkel surveys, hand netting that specifically targets other species, and spawning surveys; and (2) capture by rotary screw trap, boat electrofishing, hook-and-line, beach seine, fyke net, or minnow trapping. The BOR applied for this permit as a contingent of the Trinity River Restoration Program (TRRP), an inter-agency partnership of the BOR, USFWS, Hoopa Valley Tribe, Yurok Tribe, CDFW, Trinity County, USFS, NMFS, and the California Department of Water Resources. The TRRP benefits listed species by conducting large-scale channel restoration and habitat restoration activities in the Trinity River mainstem and watershed as a means of restoring declining fishery resources. The following six specific studies are included: (1) Trinity River juvenile salmonid outmigrant monitoring, (2) juvenile Chinook salmon density monitoring, (3) Trinity River Chinook salmon redd and carcass survey, (4) Trinity River invasive brown trout predation on coho investigation, (5) Trinity River juvenile coho salmon ecology study, and (6) watershed rehabilitation/research. Fin tissue samples will be collected from carcasses. The majority of captured juvenile coho salmon will be anesthetized, measured to fork length and released, but a subsample will also be PIT tagged. Tagged fish will be held in recovery pens post tagging to monitor and enhance post-tagging health. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 17916

    A notice of receipt of an application for scientific research permit renewal (17916) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 17916 was issued to the BLM on December 23, 2015 and expires on December 31, 2020.

    Permit 17916 authorizes the BLM to monitor the effects of current management actions related to the Northwest Forest Plan's Aquatic Conservation Strategy on anadromous salmonids and their habitats. In order to monitor land management actions and implement the Northwest Forest Plan in northern California, BLM needs to obtain updated information on fish distribution and habitat. Sampling will occur in various watersheds, including the Mattole River, Eel River, Lost Coast region tributaries to the Pacific Ocean, and Humboldt Bay tributaries. Take of CC Chinook salmon, SONCC coho salmon, and NC steelhead will result from this monitoring and research. The preponderance of requested take will result from spawning surveys, snorkel surveys, and presence/absence surveys from the bank, all of which will result in observe/harass take of juvenile and/or adult salmonids. Capture methods that will take juvenile salmonids include backpack electrofishing and beach seine. A small number of salmonid fry may also be captured during kick net activities intended to sample invertebrates. Electrofishing will be used only when stream conditions prohibit less invasive sampling methods. Personnel handling fish will have wet hands and experience in fish handling. After length measurements were complete, fish will be placed in a bucket of freshwater for longer than 30 minutes to allow for recovery prior to being released. Recovering fish will be kept in cool, shaded, aerated water and will not be overcrowded. This research will benefit listed fish by informing adaptive management strategies intended to aid in the recovery of at-risk anadromous salmonids. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 18012

    A notice of receipt of an application for scientific research permit renewal (18012) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 18012 was issued to the CDFW, Bay Delta Region (Region III) on December 23, 2015 and expires on December 31, 2020.

    Permit 18012 authorizes the CDFW, Bay Delta Region to take listed species while conducting two research projects, the Watershed Restoration Project (WRP) and the Fisheries Management Project (FMP), designed to assess and restore the productivity of CC Chinook salmon, CCC coho salmon, NC steelhead, CCC steelhead, and S-CCC steelhead in Sonoma, Mendocino, Napa, Marin, San Mateo, Santa Cruz and Monterey counties in north central California. Program staff will accomplish this goal by conducting habitat and salmonid surveys to determine potential limiting factors and stock status in order to identify the specific measures and actions needed to protect and increase production of listed salmonids. The authorized studies include: (1) Juvenile salmonid occurrence, distribution and habitat monitoring; (2) adult salmonid occurrence, passage, and distribution; (3) spawning ground surveys; (4) life cycle station monitoring; and (5) juvenile steelhead lagoon beach seining. Listed fish will be observed/harassed during snorkel surveys, spawning surveys, carcass surveys, and by the use of electronic counting stations (i.e., DIDSON camera, Vaki Riverwatcher and/or video weir). Listed salmonids will be captured using backpack electrofishing, beach seining, rotary screw traps, fyke/pipe traps, and potentially adults may be captured using a resistance board weir. The majority of juvenile captures will be handled (measured for fork length and weighed), and released. A subset of juvenile salmonid captures will be anesthetized, fin tissue sampled to collect tissue for genetic analysis, scale sampled, marked with an upper caudal fin clip, and/or PIT tagged. Only healthy fish with no signs of stress or injury will be subjected to marking or tagging. All fish will be allowed to recover fully and will be observed carefully for injury prior to release. Captured adult salmonids will be handled (i.e., identified, measured, weighed, and scale and tissue samples taken), tagged (bi-colored Floy tags and/or opercular-hole-punched) and released upstream of the weir. All fish handled will be held in clean and decontaminated containers that are supplied with cool, aerated water and will be released back into the stream reach from which they were collected after recovery. Implementation of these activities under the WRP and the FMP will benefit listed species by informing recommendations on proposed habitat restoration projects and by determining the impacts of various management actions. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 18712

    A notice of receipt of an application for scientific research permit (18712) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 18712 was issued to H.T. Harvey & Associates on December 23, 2015 and expires on December 31, 2020.

    Permit 18712 authorizes H.T. Harvey & Associates to take juvenile and smolt CC Chinook salmon, SONCC coho salmon, CCC coho salmon, NC steelhead, and adult sDPS eulachon while completing a project that is intended to meet three Marine Protected Area (MPA) monitoring goals set by the MPA Monitoring Enterprise. The three monitoring goals are: (1) To assess trends in the condition of ecosystems inside and outside of MPA's, (2) to evaluate the effects of specific MPA design criteria such as MPA size and distance between MPAs, and (3) to evaluate the effect of visitors on MPAs. The project will contribute to the goals of the monitoring enterprise by describing the baseline biological community in four northern California estuaries: (1) Mad River Estuary in Humboldt County, (2) South Humboldt Bay State Marine Recreational Management Area in Humboldt County, (3) Ten Mile Estuary State Marine Conservation Area (SMCA) in Mendocino County, and (4) Big River Estuary SMCA in Mendocino County. Beach seines and fyke nets will be used to capture fish whereby take (i.e., capture/handle/release) of listed salmonids will occur. Handling will consist of identifying and measuring fish to fork length. To ensure that handled fish will experience minimal adverse effects as a result of the sampling process, fish will be allowed to recover briefly either in live wells or in shaded, aerated buckets. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 18937

    A notice of receipt of an application for scientific research permit (18937) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 18937 was issued to the Scripps Institution of Oceanography, University of California, San Diego, CSGCP on December 23, 2015 and expires on December 31, 2020.

    Permit 18937 authorizes the Scripps Institution of Oceanography, University of California, San Diego, CSGCP to annually take listed CC Chinook salmon, CCC coho salmon, and CCC steelhead while monitoring the status and trends of listed salmonids in the Russian River watershed. The CSGCP will collect data to estimate population metrics such as abundance, survival, growth, and spatial distribution of multiple life stages of salmonids, and relate them to different recovery actions including hatchery releases, habitat enhancement projects, and stream flow improvement projects. Data collection will be designed to meet four specific study objectives: (1) Evaluation of the Russian River Coho Salmon Captive Broodstock Program, (2) implementation of the California Coastal Salmonid Monitoring Plan, (3) comparing juvenile coho salmon oversummer survival with stream flow, and (4) evaluation of habitat enhancement projects. The four studies will provide resource agencies with valuable information that will help guide future decisions regarding recovery actions. Fish populations will be monitored in many tributaries of the Russian River watershed and several methods that could observe/harass and/or capture fish will be employed, including: Snorkel surveys, spawning surveys, redd surveys, downstream migrant trapping (pipe/funnel trap), minnow trapping, operation of PIT tag detection systems (i.e., PIT tag arrays and PIT tag wand surveys), and backpack electrofishing. Handling of live fish captured in traps or during electrofishing surveys will include anesthetization, measuring for fork length, scanning for CWT and PIT tags, fin tissue sampling, scale sampling, PIT tagging, and/or gastric lavage. Adult salmonid carcasses encountered during spawning surveys will be scanned for PIT tags, measured, fin clipped, scale sampled, and otoliths will be extracted. All live fish will be released back into the stream following recovery in aerated buckets of cold water. Specific measures that will be taken to reduce the risk of injury or mortality to fish include minimizing the time that fish are handled, placing potential predators in separate holding buckets, running aerators in buckets, avoiding overcrowding in buckets, changing water in the anesthesia bucket frequently, placing a thermometer in holding buckets and replacing water frequently if the temperatures are rising, wetting measuring boards and weigh pans, processing listed species first, checking traps at least once per day and more frequently in high flow or windy conditions, and placing flow deflectors inside the trap box to provide refugia for fish. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 19121

    A notice of receipt of an application for scientific research permit (19121) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 19121 was issued to the USGS, California Water Survey on December 23, 2015 and expires on December 31, 2020.

    Permit 19121 authorizes the USGS, California Water Survey take of listed species associated with completing two main objectives: (1) To examine research applications of the SmeltCam that have been developed and coordinated with the IEP, and (2) to provide fisheries science support for the BOR's compliance with Biological Opinions. The studies are intended to: (1) Provide new quantitative data addressing the potential benefits of habitat restoration to the SFE and Delta ecosystem and its native fish populations, and (2) determine the vertical and lateral distribution of delta smelt, and the continued evaluation and application of SmeltCam technology for studies of delta smelt and other fishes. The results of these studies are expected to provide net benefits to listed species by improving our understanding of their ecology and habitat use, and by informing the development of new research tools that can guide management decisions and habitat restoration actions. Sampling will be conducted in Suisun Bay, and will take multiple life stages of CVSR Chinook salmon, SRWR Chinook salmon, CCV steelhead, and sDPS green sturgeon. Capture methods will include beach seine, fyke trap, larval net, otter trawl, midwater trawl, boat electrofishing, set line, and gill net. All sampling will follow methods and protocols designed to minimize take of listed species while conducting research and monitoring. For example, sampling gear such as gill nets will be watched closely to monitor the status of any fishes entangled in the net. Set times will be short (approximately one hour), and nets will be set in habitats that listed fish are unlikely to inhabit. Listed salmonids captured in the course of sampling will be identified, carefully measured for length and released. Green sturgeon will be anesthetized using MS-222, scanned for a presence of a PIT tag, PIT tagged if no PIT tag is present, tissue sampled, and allowed to recover prior to release. All fishes collected in any sampling gear will be handled as gently as possible to facilitate safe release back to the water. The researchers are not proposing to kill any of the fish they capture, but a small number may die as an unintended result of the activities.

    Permit 19320

    A notice of receipt of an application for scientific research permit (19320) was published in the Federal Register on April 8, 2015 (80 FR 18820). Permit 19320 was issued to the NMFS SWFSC, Fisheries Ecology Division on December 1, 2015 and expires on October 29, 2020.

    Permit 19320 authorizes the NMFS SWFSC, Fisheries Ecology Division to annually take sub-adult and juvenile listed salmon and steelhead for a period of five years. The permit will authorize research designed to (1) determine the inter-annual and seasonal variability in growth, feeding, and energy status among juvenile salmonids in the coastal ocean off northern and central California; (2) determine migration paths and spatial distribution among genetically distinct salmonid stocks during their early ocean residence; (3) characterize the biological and physical oceanographic features associated with juvenile salmon ocean habitat from the shore to the continental shelf break; (4) identify potential links between coastal geography, oceanographic features, and salmon distribution patterns; and (5) identify and test ecological indices for salmon survival. This research will benefit listed fish by informing comprehensive lifecycle models that incorporate both freshwater and marine conditions and recognize the relationship between the two habitats; it will also identify and predict sources of salmon mortality at sea and thereby help managers develop indices of salmonid survival in the marine environment.

    Listed fish will be captured primarily via surface trawling, however midwater trawling and beach seining will be used occasionally. Sub-adult salmonids (i.e., fish larger than 250 mm) that survive capture will have fin tissue and scale samples taken, and then be released. Any subadult salmonids that do not survive capture, and all juvenile salmonids (i.e., fish larger than 80 mm but less than 250 mm) will be lethally sampled (i.e., intentional directed mortality) in order to collect (1) otoliths for age and growth studies; (2) coded wire tags for origin and age of hatchery fish; (3) muscle tissue for stable isotopes and/or lipid assays; (4) stomachs and contents for diet studies; and (5) other tissues including the heart, liver, intestines, pyloric caeca, and kidney for special studies upon request.

    Permit 19400

    A notice of receipt of an application for scientific research permit (19400) was published in the Federal Register on July 29, 2015 (80 FR 45197). Permit 19400 was issued to ICF consulting on December 23, 2015 and expires on December 31, 2020.

    Permit 19400 authorizes ICF consulting to take juvenile CVSR Chinook salmon and SRWR Chinook salmon while conducting a study to investigate if longfin smelt in San Pablo Bay shift their vertical distribution under different environmental and biological conditions. Although this study principally targets longfin smelt, ESA listed Chinook salmon will be encountered during sampling. ICF will collect data that will be useful to local researchers on captured and/or photographed listed Chinook salmon, including abundance, length, and potentially tissue samples. Fish will be sampled using a midwater trawl, however the majority of tows will be conducted with only a video device (i.e., SmeltCam) acting as the codend. Therefore, the majority of take will be observe/harass. The fish camera image program will be able to determine the length, and thereby an estimate of the race/run/listing status, of salmon that pass through the net. In order to verify the results of the SmeltCam, some tows will be conducted with both the video device and a traditional codend. Physically capture