Federal Register Vol. 81, No.121,

Federal Register Volume 81, Issue 121 (June 23, 2016)

Page Range40775-41170
FR Document

81_FR_121
Current View
Page and SubjectPDF
81 FR 40926 - Sunshine Act Meeting; NoticePDF
81 FR 40777 - Continuation of the National Emergency With Respect to the Western BalkansPDF
81 FR 40775 - Continuation of the National Emergency With Respect to North KoreaPDF
81 FR 40888 - Sunshine Act MeetingPDF
81 FR 40927 - Sunshine Act Meeting: Finance Committee, PostponedPDF
81 FR 40924 - Government in the Sunshine Act Meeting NoticePDF
81 FR 40937 - Notification of the Next CAFTA-DR Environmental Affairs Council MeetingPDF
81 FR 40897 - 60-Day Notice of Proposed Information Collection Ginnie Mae Multiclass Securities Program Documents (Forms and Electronic Data Submissions)PDF
81 FR 40924 - Draft Test Procedures for the Gun Safety Technology ChallengePDF
81 FR 40899 - Paperwork Reduction Act-Rental Assistance Demonstration (RAD) DocumentsPDF
81 FR 40850 - Prestressed Concrete Steel Rail Tie Wire From Mexico: Final Results of Antidumping Duty Administrative Review; 2013-2015PDF
81 FR 40813 - Safety Zone; San Francisco Giants Fireworks, San Francisco Bay, San Francisco, CAPDF
81 FR 40891 - Waterway Suitability Assessment for Construction and Operation of Liquefied Gas Terminals; Sabine-Neches Waterway, Vidor, TXPDF
81 FR 40814 - Safety Zone; Pleasure Beach Bridge, Bridgeport, CTPDF
81 FR 40877 - Applications for New Awards; Promoting Student ResiliencePDF
81 FR 40954 - Request for Comments of a Previously Approved Information CollectionPDF
81 FR 40783 - Amendments to Existing Validated End-User Authorization in the People's Republic of China: Advanced Micro Devices, Inc.PDF
81 FR 40825 - Approval and Promulgation of Implementation Plans; State of Iowa; Infrastructure SIP Requirements for the 1997 and 2006 Fine Particulate Matter (PM2.5PDF
81 FR 40893 - Tribal Government-to-Government Consultation PolicyPDF
81 FR 40899 - Notice of Proposal To Establish a Tribal Intergovernmental Advisory Committee; Request for Comments on Committee StructurePDF
81 FR 40827 - Air Plan Approval; Ohio; Infrastructure SIP Requirements for the 2012 PM2.5PDF
81 FR 40922 - Seamless Refined Copper Pipe and Tube From China and Mexico; Scheduling of Full Five-Year ReviewsPDF
81 FR 40938 - Proposed Agency Information Collection Activity; Comment RequestPDF
81 FR 40847 - MeetingsPDF
81 FR 40838 - Fisheries of the Northeastern United States; Monkfish; Framework Adjustment 9PDF
81 FR 40928 - Agency Information Collection Activities: Proposed Collection; Comment Request; Records PreservationPDF
81 FR 40852 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gustavus Ferry Terminal Improvements ProjectPDF
81 FR 40930 - New Postal ProductPDF
81 FR 40923 - Carbon Steel Butt-Weld Pipe Fittings From Brazil, China, Japan, Taiwan, and Thailand; Scheduling of Expedited Five-Year ReviewsPDF
81 FR 40927 - Submission for OMB Review; Comment RequestPDF
81 FR 40921 - Iron Construction Castings From Brazil, Canada, and China; Scheduling of Full Five-Year ReviewsPDF
81 FR 40785 - Commission Interpretation Regarding Automated Quotations Under Regulation NMSPDF
81 FR 41142 - In the Matter of the Application of: Investors' Exchange, LLC for Registration as a National Securities Exchange; Findings, Opinion, and Order of the CommissionPDF
81 FR 40889 - Invitation To Participate in Account Management Pilot for the Import Trade Auxiliary Communication SystemPDF
81 FR 40900 - Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Seventeenth Regular Meeting; Provisional Agenda; Announcement of Public MeetingPDF
81 FR 40884 - Cameron LNG, LLC; Application for Blanket Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations on a Short-Term BasisPDF
81 FR 40928 - Program-Specific Guidance About Licenses Authorizing Distribution to General LicenseesPDF
81 FR 40870 - Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of PermitPDF
81 FR 40929 - Tennessee Valley Authority; Clinch River Nuclear SitePDF
81 FR 40886 - Agency Information Collection ExtensionPDF
81 FR 40887 - Combined Notice of Filings #2PDF
81 FR 40886 - Combined Notice of Filings #1PDF
81 FR 40888 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 40919 - Public Meetings of the Invasive Species Advisory CommitteePDF
81 FR 40848 - Agenda and Notice of Public Meeting of the Montana Advisory CommitteePDF
81 FR 40847 - Public Meeting of the Indiana Advisory Committee To Discuss Findings and Recommendations Regarding Civil Rights and the School to Prison Pipeline in IndianaPDF
81 FR 40876 - Legal ProcessesPDF
81 FR 40850 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 40917 - Low-Effect Habitat Conservation Plan for the Morro Shoulderband Snail; Mammen Parcel, Community of Los Osos, San Luis Obispo County, CaliforniaPDF
81 FR 40920 - Notice of Grand Staircase-Escalante National Monument Advisory Committee MeetingPDF
81 FR 40812 - Oil and Gas and Sulphur Operations in the Outer Continental Shelf-Technical Corrections; CorrectionPDF
81 FR 40920 - Notice of Cancellation of Public Meeting, BLM Alaska Resource Advisory CouncilPDF
81 FR 40892 - Agency Information Collection Activities: Arrival and Departure Record (Forms I-94 and I-94W) and Electronic System for Travel AuthorizationPDF
81 FR 40902 - Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization for Pacific Walruses in Alaska and Associated Federal WatersPDF
81 FR 40813 - Drawbridge Operation Regulation; Willamette River, Portland, ORPDF
81 FR 40890 - International Conference on Harmonisation; Electronic Transmission of Postmarket Individual Case Safety Reports for Drugs and Biologics, Excluding Vaccines; Availability of Food and Drug Administration Regional Implementation Specifications for ICH E2B(R3) Reporting to the Food and Drug Administration Adverse Event Reporting SystemPDF
81 FR 40915 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Alaska Migratory Bird Subsistence Harvest Household SurveyPDF
81 FR 40930 - Information Collection Request; Submission for OMB ReviewPDF
81 FR 40918 - Renewal of Agency Information Collection for Energy Resource Development Program GrantsPDF
81 FR 40935 - Proposed Collection; Comment RequestPDF
81 FR 40844 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual SpecificationsPDF
81 FR 40849 - Submission for OMB Review; Comment RequestPDF
81 FR 40932 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving Proposed Rule Change Relating to Composition, Terms of Members and Election Procedures for the National Adjudicatory CouncilPDF
81 FR 40931 - New Postal ProductPDF
81 FR 40925 - Advisory Board on Toxic Substances and Worker Health: Subcommittee on Industrial Hygienists (IH) & Contract Medical Consultants (CMC) and Their ReportsPDF
81 FR 40927 - NASA Advisory Council; Science Committee; Astrophysics Subcommittee; MeetingPDF
81 FR 40889 - Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee; Amendment of NoticePDF
81 FR 40781 - Grapes Grown in a Designated Area of Southeastern California; Increased Assessment RatePDF
81 FR 40779 - United States Standards for Grades of Processed RaisinsPDF
81 FR 40850 - Foreign-Trade Zone 18-San Jose, California; Application for Subzone Expansion; Subzone 18G; Tesla Motors, Inc.; Palo Alto and Fremont, CaliforniaPDF
81 FR 40816 - Air Plan Approval and Air Quality Designation; TN; Redesignation of the Shelby County 2008 8-Hour Ozone Nonattainment Area to AttainmentPDF
81 FR 40834 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; Redesignation of the Indiana Portion of the Louisville Area to Attainment of the 1997 Annual Standard for Fine Particulate MatterPDF
81 FR 40793 - Reactive Power Requirements for Non-Synchronous GenerationPDF
81 FR 40823 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
81 FR 41104 - General Services Administration Acquisition Regulation (GSAR); Transactional Data ReportingPDF
81 FR 40819 - Civil Monetary Penalties Inflation AdjustmentPDF
81 FR 40920 - Central Valley Project Improvement Act Water Management PlansPDF
81 FR 40810 - Inversions and Related Transactions; CorrectionPDF
81 FR 40938 - Notice of Intent To Rule on Request To Release Airport Property at the Monroe Regional Airport at Monroe, LouisianaPDF
81 FR 41036 - Medicare Program; Medicare Clinical Diagnostic Laboratory Tests Payment SystemPDF
81 FR 40848 - Notice of Public Meeting of the North Carolina Advisory CommitteePDF
81 FR 40820 - Service by Email for Notice of Petitions for Review and AppealsPDF
81 FR 40956 - Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration UnitsPDF

Issue

81 121 Thursday, June 23, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Grapes Grown in a Designated Area of Southeastern California: Increased Assessment Rate, 40781-40783 2016-14824 United States Standards for Grades of Processed Raisins, 40779-40780 2016-14821 Agriculture Agriculture Department See

Agricultural Marketing Service

Architectural Architectural and Transportation Barriers Compliance Board NOTICES Meetings: Architectural and Transportation Barriers Compliance Board, 40847 2016-14889 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement RULES Oil and Gas and Sulphur Operations in the Outer Continental Shelf; Technical Corrections; Correction, 40812-40813 2016-14850 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Medicare Clinical Diagnostic Laboratory Tests Payment System, 41036-41101 2016-14531 Civil Rights Civil Rights Commission NOTICES Meetings: Indiana Advisory Committee, 40847-40848 2016-14857 Montana Advisory Committee, 40848-40849 2016-14858 North Carolina Advisory Committee, 40848 2016-14268 Coast Guard Coast Guard RULES Drawbridge Operations: Willamette River, Portland, OR, 40813 2016-14846 Safety Zones: Pleasure Beach Bridge, Bridgeport, CT, 40814-40816 2016-14908 San Francisco Giants Fireworks, San Francisco Bay, San Francisco, CA, 40813-40814 2016-14911 NOTICES Waterway Suitability Assessment for Construction and Operation of Liquefied Gas Terminals; Sabine-Neches Waterway, Vidor, TX, 40891-40892 2016-14910 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40849 2016-14838
Corporation Corporation for National and Community Service RULES Civil Monetary Penalties Inflation Adjustments, 40819-40820 2016-14675 Economic Development Economic Development Administration NOTICES Petitions by Firms for Determination of Eligibility to Apply for Trade Adjustment Assistance, 40850 2016-14855 Education Department Education Department NOTICES Applications for New Awards: Promoting Student Resilience, 40877-40884 2016-14907 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40886 2016-14864 Applications to Export Liquefied Natural Gas: Cameron LNG, LLC, 40884-40886 2016-14869
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Tennessee; Redesignation of the Shelby County 2008 8-Hour Ozone Nonattainment Area to Attainment, 40816-40819 2016-14807 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 40956-41034 2016-13687 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Indiana; Redesignation of the Indiana Portion of the Louisville Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter, 40834-40838 2016-14806 Iowa; Infrastructure SIP Requirements for the 1997 and 2006 Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards, 40825-40827 2016-14897 Ohio; Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS, 40827-40834 2016-14894 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Fokker Services B.V. Airplanes, 40823-40825 2016-14754 NOTICES Requests to Release Airport Properties, 40938 2016-14635 Federal Communications Federal Communications Commission RULES Service by Email for Notice of Petitions for Review and Appeals, 40820-40822 2016-14096 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings; Sunshine Act, 40888 2016-14996 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 40888 2016-15028 Federal Energy Federal Energy Regulatory Commission RULES Reactive Power Requirements for Non-Synchronous Generation, 40793-40809 2016-14764 NOTICES Combined Filings, 40886-40888 2016-14862 2016-14863 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40938-40953 2016-14890 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 40888 2016-14861 Fish Fish and Wildlife Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Alaska Migratory Bird Subsistence Harvest Household Survey, 40915-40917 2016-14843 Endangered and Threatened Wildlife and Plants Permit Applications: Low-Effect Habitat Conservation Plan for the Morro Shoulderband Snail; Mammen Parcel, Community of Los Osos, San Luis Obispo County, CA, 40917-40918 2016-14853 Marine Mammals; Incidental Take During Specified Activities: Proposed Incidental Harassment Authorization for Pacific Walruses in Alaska and Associated Federal Waters, 40902-40915 2016-14847 Meetings: Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 40900-40902 2016-14870 Food and Drug Food and Drug Administration NOTICES International Conference on Harmonisation: Electronic Transmission of Postmarket Individual Case Safety Reports for Drugs and Biologics, etc., 40890-40891 2016-14845 Invitation to Participate in Account Management Pilot for the Import Trade Auxiliary Communication System, 40889 2016-14874 Meetings: Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee; Amendment, 40889-40890 2016-14827 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Subzone Expansion: Tesla Motors, Inc., Foreign-Trade Zone 18, San Jose, CA, 40850 2016-14809 General Services General Services Administration RULES General Services Administration Acquisition Regulations: Transactional Data Reporting, 41104-41139 2016-14728 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ginnie Mae Multiclass Securities Program Documents, 40897-40899 2016-14926 Rental Assistance Demonstration Documents, 40899 2016-14924 Final Policy Statements: Tribal Government-to-Government Consultation Policy, 40893-40897 2016-14896 Proposal to Establish Intergovernmental Advisory Committee, 40899-40900 2016-14895 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Energy Resource Development Program Grants, 40918-40919 2016-14841 Industry Industry and Security Bureau RULES Validated End-User Authorization in the People's Republic of China: Advanced Micro Devices, Inc., 40783-40785 2016-14902 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

Reclamation Bureau

NOTICES Meetings: Invasive Species Advisory Committee, 40919-40920 2016-14860
Internal Revenue Internal Revenue Service RULES Inversions and Related Transactions; Correction, 2016-14648 40810-40812 2016-14649 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Prestressed Concrete Steel Rail Tie Wire from Mexico, 40850-40851 2016-14913 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Carbon Steel Butt-Weld Pipe Fittings from Brazil, China, Japan, Taiwan, and Thailand; Scheduling of Expedited Five-Year Reviews, 40923-40924 2016-14883 Iron Construction Castings from Brazil, Canada, and China; Scheduling of Full Five-Year Reviews, 40921-40922 2016-14878 Seamless Refined Copper Pipe and Tube from China and Mexico, 40922-40923 2016-14891 Meetings; Sunshine Act, 40924 2016-14950 Justice Department Justice Department See

Justice Programs Office

Justice Programs Justice Programs Office NOTICES Draft Test Procedures for the Gun Safety Technology Challenge, 40924-40925 2016-14925 Labor Department Labor Department See

Workers Compensation Programs Office

Land Land Management Bureau NOTICES Meetings: Alaska Resource Advisory Council; Cancellation, 40920 2016-14849 Grand Staircase-Escalante National Monument Advisory Committee, 40920 2016-14852 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 40926-40927 2016-14979 2016-15058 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40954 2016-14872 2016-14906 NASA National Aeronautics and Space Administration NOTICES Meetings: NASA Advisory Council; Science Committee; Astrophysics Subcommittee, 40927 2016-14832 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40927-40928 2016-14882 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Records Preservation, 40928 2016-14887 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Northeastern United States: Monkfish; Framework Adjustment 9, 40838-40844 2016-14888 Fisheries Off West Coast States: Coastal Pelagic Species Fisheries; Annual Specifications, 40844-40846 2016-14839 NOTICES Permits: Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations, 40870-40876 2016-14866 Takes of Marine Mammals: Gustavus Ferry Terminal Improvements Project, 40852-40870 2016-14886 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Permit Applications: Tennessee Valley Authority; Clinch River Nuclear Site, 40929-40930 2016-14865 Program-Specific Guidance about Licenses Authorizing Distribution to General Licensees, 40928-40929 2016-14867 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Legal Processes, 40876-40877 2016-14856 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40930 2016-14842 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 40930-40932 2016-14836 2016-14885 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS North Korea; Continuation of National Emergency (Notice of June 21, 2016), 40775-40776 2016-15036 Western Balkans; Continuation of National Emergency (Notice of June 21, 2016), 40777 2016-15041 Reclamation Reclamation Bureau NOTICES Central Valley Project Improvement Act Water Management Plans, 40920-40921 2016-14654 Securities Securities and Exchange Commission RULES Commission Interpretation Regarding Automated Quotations under Regulation NMS, 40785-40793 2016-14876 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40935-40937 2016-14840 Registrations as a National Securities Exchange: Investors' Exchange, LLC; Findings, Opinion, and Order of the Commission, 41142-41170 2016-14875 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 40932-40935 2016-14837 State Department State Department NOTICES Meetings: Dominican Republic-Central America-United States Free Trade Agreement Environmental Affairs Council, 40937 2016-14927 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

Maritime Administration

Treasury Treasury Department See

Internal Revenue Service

Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Arrival and Departure Record and Electronic System for Travel Authorization, 40892-40893 2016-14848 Workers' Workers Compensation Programs Office NOTICES Meetings: Advisory Board on Toxic Substances and Worker Health —Subcommittee on Industrial Hygienists and Contract Medical Consultants and Their Reports, 40925-40926 2016-14834 Separate Parts In This Issue Part II Environmental Protection Agency, 40956-41034 2016-13687 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 41036-41101 2016-14531 Part IV General Services Administration, 41104-41139 2016-14728 Part V Securities and Exchange Commission, 41142-41170 2016-14875 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.

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81 121 Thursday, June 23, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 52 [Document Number AMS-FV-14-0087, FV-16-329] United States Standards for Grades of Processed Raisins AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture (USDA) is revising the United States Standards for Grades of Processed Raisins by removing five references to the term “midget” throughout the standards. These changes will modernize and clarify the standards by removing dual terminology for the same requirement.

DATES:

Effective July 25, 2016.

FOR FURTHER INFORMATION CONTACT:

Lindsay Mitchell at Standardization Branch, Specialty Crops Inspection Division, Specialty Crops Program, Agricultural Marketing Service, U.S. Department of Agriculture, National Training and Development Center, Riverside Business Park, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406, or at phone (540) 361-1120; fax (540) 361-1199; or, email [email protected] Copies of the proposed U.S. Standards for Grades of Processed Raisins are available on the Internet at http://www.regulations.gov. The current U.S. Standards for Grades of Processed Raisins are available on the Specialty Crops Inspection Division Web site at http://www.ams.usda.gov/grades-standards.

SUPPLEMENTARY INFORMATION:

The changes remove the dual nomenclature terminology “small or midget” for the same requirement from the U.S. Standards for Grades of Processed Raisins. These revisions also affect the grade requirements under the marketing order, 7 CFR parts 989, issued under the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601-674) and applicable imports.

Executive Orders 12866 and 13563

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

Executive Order 13175

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Regulatory Flexibility Act and Paperwork Reduction Act

Pursuant to the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of these revisions on small entities, and prepared the following final regulatory flexibility analysis.

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

There are approximately 3,000 California raisin producers and 28 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those with annual receipts less than $750,000, and defines small agricultural service firms as those with annual receipts less than $7,500,000 (13 CFR 121.201).

Based on shipment data and other information provided by the Raisin Administrative Committee (RAC), which administers the Federal marketing order for raisins produced from grapes grown in California, most producers and approximately 18 handlers of California raisins may be classified as small entities. The RAC represents the entire California raisin industry; no other state produces raisins commercially. This action should not have any impact on handlers' or growers' benefits or costs.

The action will clarify AMS grade standards by eliminating the use of the term “midget” and consistently using the term “small” for raisins graded in that category. The industry has used the two terms interchangeably for years. The proposed grade standards will be applied uniformly by all handlers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this rule will not change the information collection and recordkeeping requirements previously approved, and will impose no additional reporting or recordkeeping burden on domestic producers, first handlers, and importers of processed raisins.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. The rule will impact marketing programs that regulate the handling of processed raisins under 7 CFR part 989. Raisins under a marketing order must meet certain requirements set forth in the grade standards. In addition, raisins are subject to section 8e import requirements under the Agricultural Marketing Act of 1937, as amended (7 U.S.C. 601-674), which requires that imported raisins meet grade, size, and quality under the applicable marketing order (7 CFR part 999).

Background

AMS continually reviews all fruit and vegetable grade standards to ensure their usefulness to the industry, and to modernize language and remove duplicative terminology. On May 13, 2013, AMS received a petition from the Little People of America stating that they “are trying to raise awareness around and eliminate the use of the word midget.” The petition further stated that, “Though the use of the word midget by the USDA when classifying certain food products is benign, Little People of America, and the dwarfism community, hopes that the USDA would consider phasing out the term midget.”

AMS determined that the processed raisin grade standard contained “small or midget” terminology for the same requirement. Before developing these proposed revisions, AMS solicited comments and suggestions about the grade standards from the RAC, which represents the entire California raisin industry. On August 14, 2014, the RAC approved the removal of the term midget from the standards.

On August 21, 2015, AMS published a Proposed Rule in the Federal Register (80 FR 50803) soliciting comments on removing five references to the term “midget” from the standards. Eight comments were submitted by October 20, 2015, the closing date of the public comment period. Five of the eight comments fully supported the revisions; three did not.

Five commenters, one of which represents the dwarfism community, fully support the revisions. Four of them believe the issue is not about political correctness, but, rather, is a matter of common decency and respect. They also believe eliminating the term “midget” from USDA documents will raise awareness that the term is socially unacceptable. In addition, one commenter believes it is redundant to have two names for the same size category. All agree the term “midget” is unneeded and should be removed.

Two of the three opposing commenters believe the USDA should address more important issues and not concern themselves with being “politically correct.” The third stated that even though they understand the concern of Little People of America, they believe addressing the issue is unnecessary, since, in their purchasing experience, they have never encountered raisins identified by size. The USDA and RAC support the Little People of America in the removal of the term “midget” from the raisin standards as a matter of common decency, that there is limited use of the term by industry, and because it is redundant as there is also the term “small” for the size category. No changes have been made to the rule based on the comments.

Based on the information gathered, AMS is removing five references to the term “midget” in the following sections: 52.1845(b) and (c), 52.1850(a)(2) and (a)(3), and Table I. The revisions will modernize and help clarify the language of the standard by removing dual terminology for the same requirement.

List of Subjects in 7 CFR Part 52

Food grades and standards, Food labeling, Frozen foods, Fruit juices, Fruits, Reporting and recordkeeping requirements, Vegetables.

For reasons set forth in the preamble, 7 CFR part 52 is amended as follows:

PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority:

7 U.S.C. 1621-1627.

2. In § 52.1845, paragraphs (b) and (c) are revised to read as follows:
§ 52.1845 Sizes of seedless raisins.

(b) Small size raisins means that 95 percent, by weight, of all the raisins will pass through round perforations 24/64-inch in diameter, and not less than 70 percent, by weight, of all raisins will pass through round perforations 22/64-inch in diameter.

(c) Mixed size raisins means a mixture that does not meet either the requirements for “select” size or for “small” size.

3. In § 52.1846, Table I is amended under the heading “Substandard development and undeveloped” by removing the entry for “Small (Midget) size” and adding in its place an entry for “Small size” to read as follows:
§ 52.1846 Grades of seedless raisins. Table I—Allowances for Defects in Type I, Seedless Raisins and Type II, Golden Seedless Raisins Defects U.S. Grade A U.S. Grade B U.S. Grade C *         *         *         *         *         *         * Substandard development and undeveloped Total Total Total *         *         *         *         *         *         * Small size 2 3 5 *         *         *         *         *         *         *
4. In § 52.1850, paragraphs (a)(2) and (3) are revised to read as follows:
§ 52.1850 Sizes of raisins with seeds—except layer or cluster.

(a) * * *

(2) Small size raisins means that all of the raisins will pass through round perforations 34/64-inch in diameter and not less than 90 percent, by weight, of all the raisins will pass through round perforations 22/64-inch in diameter.

(3) Mixed size raisins means a mixture does not meet either the requirements for “select” size or for “small” size.

Dated: June 17, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-14821 Filed 6-22-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 925 [Doc. No. AMS-SC-15-0077; SC16-925-1 FR] Grapes Grown in a Designated Area of Southeastern California; Increased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule implements a recommendation from the California Desert Grape Administrative Committee (Committee) for an increase of the assessment rate established for the 2016 and subsequent fiscal periods from $0.0250 to $0.0300 per 18-pound lug of grapes handled under the marketing order (order). The Committee locally administers the order, and is comprised of producers and handlers of grapes grown and handled in a designated area of southeastern California. Assessments upon grape handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period began on January 1 and ends December 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective June 24, 2016.

FOR FURTHER INFORMATION CONTACT:

Kathie Notoro, Marketing Specialist, or Jeffrey Smutny, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

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

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, grape handlers in a designated area of southeastern California are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable grapes beginning on January 1, 2016, and continue until amended, suspended, or terminated.

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

This rule increases the assessment rate established for the Committee for the 2016 and subsequent fiscal periods from $0.0250 to $0.0300 per 18-pound lug of grapes handled.

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

For the 2015 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA based upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on November 12, 2015, and unanimously recommended 2016 expenditures of $143,500, a contingency reserve fund of $6,500, and an assessment rate of $0.0300 per 18-pound lug of grapes handled. In comparison, last year's budgeted expenditures were $135,500. The Committee recommended a crop estimate of 5 million, 18-pound lugs, which is lower than the 5.8 million, 18-pound lugs handled last year. The Committee also recommended carrying over a financial reserve of $47,500, which would increase to $54,000, at the end of the fiscal period. The assessment rate of $0.0300 per 18-pound lug of grapes handled recommended by the Committee is $0.0050 higher than the $0.0250 rate currently in effect. The higher assessment rate, applied to shipments of 5 million, 18-pound lugs, is expected to generate $150,000 in revenue and be sufficient to cover anticipated expenses.

The major expenditures recommended by the Committee for the 2016 fiscal period include $28,500 for research, $20,080 for office expenses, $56,500 for management and compliance expenses, $25,000 for consultation services, and $6,500 for a contingency reserve. The $28,500 research project is a continuation of a vine study in progress by the University of California, Riverside.

In comparison, major expenditures for the 2015 fiscal period included $15,500 for research, $17,000 for general office expenses, $62,750 for management and compliance expenses, $25,000 for consultation services, and $9,500 for a contingency reserve. Overall 2016 expenditures include a decrease in management and compliance expenses, and increases in office and research expenses.

The assessment rate recommended by the Committee was derived by evaluating several factors, including estimated shipments for the 2016 season, proposed expenses, and the level of available financial reserves. The Committee determined that the $0.0300 assessment rate should generate $150,000 in revenue to cover the budgeted expenses of $143,500, and a contingency reserve fund of $6,500.

Reserve funds by the end of 2016 are projected to be $54,000. The reserve would be well within the reserve amount authorized under the order. Section 925.41 of the order permits the Committee to maintain approximately one fiscal period's expenses in reserve.

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

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2016 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

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

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

There are approximately 12 handlers of southeastern California grapes who are subject to regulation under the marketing order and about 38 grape producers in the production area. Small agricultural service firms are defined by the Small Business Administration as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000(13 CFR 121.201).

Seven of the 12 handlers subject to regulation have annual grape sales of less than $7,500,000, according to USDA Market News Service and Committee data. In addition, information from the Committee and USDA's Market News indicates that at least nine of the 38 producers have annual receipts of less than $750,000. Based on the foregoing, it may be concluded that slightly more than half of the grape handlers and a minority of the grape producers could be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2016 and subsequent fiscal periods from $0.0250 to $0.0300 per 18-pound lug of grapes. The Committee unanimously recommended 2016 expenditures of $143,500, a contingency reserve fund of $6,500, and an assessment rate of $0.0300 per 18-pound lug of grapes handled. The assessment rate of $0.0300 is $0.0050 higher than the 2015 rate. The quantity of assessable grapes for the 2016 season is estimated at 5 million, 18-pound lugs. Thus, the $0.0300 rate should generate $150,000 in income. In addition, reserve funds at the end of the year are projected to be $54,000, which is well within the order's limitation of approximately one fiscal period's expenses.

The major expenditures recommended by the Committee for the 2016 fiscal period include $28,500 for research, $20,080 for general office expenses, $56,500 for management and compliance expenses, $25,000 for consultation services and $6,500 for the contingency reserve.

In comparison, major expenditures for the 2015 fiscal period included $15,500 for research, $17,000 for general office expenses, $62,750 for management and compliance expenses, $25,000 for consultation services, and $9,500 for a contingency reserve. Overall 2016 expenditures include a decrease in management and compliance expenses, and increases in general office expenses, and research expenses.

Prior to arriving at this budget and assessment rate, a subcommittee met to discuss this matter for the purpose of making a recommendation to the Committee. The Committee considered alternative expenditures and assessment rates, to include not increasing the $0.0250 assessment rate. Based on a crop estimate of 5 million, 18-pound lugs, the Committee ultimately determined that increasing the assessment rate to $0.0300 would generate sufficient funds to cover budgeted expenses. Reserve funds at the end of the 2016 fiscal period are projected to be $54,000. This amount is well within the amount authorized under the order.

A review of historical crop and price information, as well as preliminary information pertaining to the upcoming fiscal period, indicates that the shipping point price for the 2015 season averaged about $22.75 per 18-pound lug of California desert grapes handled. If the 2016 price is similar to the 2015 price, estimated assessment revenue as a percentage of total estimated handler revenue will be 0.13 percent for the 2016 season ($0.0300 divided by $22.75 per 18-pound lug).

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. However, these costs are offset by the benefits derived from the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the grape production area and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the November 12, 2015, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

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

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

A proposed rule concerning this action was published in the Federal Register on March 10, 2016 (81 FR 12605). Copies of the proposed rule were also provided to all grape handlers. Finally, the proposal was made available through the internet by USDA and the office of the Federal Register. A 15-day comment period ending March 25, 2016, was provided for interested persons to respond to the proposal. No comments were received.

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

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

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2016 fiscal period began on January 1, 2016, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable grapes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule and no comments were received.

List of Subjects in 7 CFR Part 925

Grapes, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 925 is amended as follows:

PART 925—GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN CALIFORNIA 1. The authority citation for 7 CFR part 925 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 925.215 is revised to read as follows:
§ 925.215 Assessment rate.

On and after January 1, 2016, an assessment rate of $0.0300 per 18-pound lug is established for grapes grown in a designated area of southeastern California.

Dated: June 17, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-14824 Filed 6-22-16; 8:45 am] BILLING CODE P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 748 [Docket No. 160303186-6186-01] RIN 0694-AG91 Amendments to Existing Validated End-User Authorization in the People's Republic of China: Advanced Micro Devices, Inc. AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to revise the existing Validated End-User (VEU) list for the People's Republic of China by updating the list of eligible items and destinations (facilities) for VEU Advanced Micro Devices, Inc. (AMD). Specifically, BIS amends Supplement No. 7 to part 748 of the EAR to remove an existing “eligible destination” (facility); add a building to an existing address at one of AMD's already approved facilities to which eligible items may be exported, reexported or transferred (in-country); and reflect the recent removal of an existing “eligible item” from the Commerce Control List (CCL).

DATES:

This rule is effective June 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Phone: 202-482-5991; Email: [email protected]

SUPPLEMENTARY INFORMATION:

Background Authorization Validated End-User

Validated End-Users (VEUs) are designated entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. The names of the VEUs, as well as the dates they were so designated, and their respective eligible destinations (facilities) and items are identified in Supplement No. 7 to part 748 of the EAR. Under the terms described in that supplement, VEUs may obtain eligible items without an export license from BIS, in conformity with section 748.15 of the EAR. Eligible items vary between VEUs and may include commodities, software, and technology, except those controlled for missile technology or crime control reasons on the Commerce Control List (CCL) (part 774 of the EAR).

VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of section 748.15 and Supplement Nos. 8 and 9 to part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy, Commerce, and other agencies as appropriate, is responsible for administering the VEU program. BIS amended the EAR in a final rule published on June 19, 2007 (72 FR 33646), to create Authorization VEU.

Amendments to Existing VEU Authorization for Advanced Micro Devices, Inc. (AMD) in the People's Republic of China Revision to the List of “Eligible Destinations” and “Eligible Items” for AMD

In this final rule, BIS amends Supplement No. 7 to part 748 to revise AMD's VEU authorization. Specifically, in this rule BIS removes one of AMD's existing eligible destinations (facilities). Also, in this rule, BIS adds a building to an existing address at one of AMD's facilities already approved under Authorization VEU, to which the company's eligible items may be exported, reexported or transferred (in-country) in the People's Republic of China (PRC) under the authorization. Finally, in this rule, BIS removes Export Control Classification Number (ECCN) 4D002 from the list of AMD's eligible items to reflect the removal of that item from the CCL by 80 FR 29432 (May 21, 2015). The amendments to the eligible destinations (facilities) are in response to a request from AMD, while the amendment to the eligible items list reflects the recent removal of that ECCN from the CCL. All amendments were approved by the ERC. The revisions are as follows:

Removal of AMD's Eligible Destination (Facility)

AMD Technologies (China) Co., Ltd., No. 88, Su Tong Road, Suzhou, China 215021.

Revision and Update of Address for One of AMD's Eligible Destinations (Facilities) Current Address: Advanced Micro Devices (Shanghai) Co., Ltd., Buildings 46, 47, 48 & 49, River Front Harbor, Zhangjiang Hi-Tech Park, 1387 Zhangdong Rd., Pudong, Shanghai, China 201203 New Address: Advanced Micro Devices (Shanghai) Co., Ltd., Buildings 33 (Unit 1), 46, 47, 48 & 49, River Front Harbor, Zhangjiang Hi-Tech Park, No. 1387 Zhang Dong Road, Pudong District, Shanghai, China 201203 Removal of AMD's Eligible Item: ECCN 4D002

With this revision, AMD's “Eligible Items” are as follows: 3D002, 3D003, 3E001 (limited to “technology” for items classified under 3C002 and 3C004 and “technology” for use during the International Technology Roadmap for Semiconductors (ITRS) process for items classified under ECCNs 3B001 and 3B002), 3E002 (limited to “technology” for use during the ITRS process for items classified under ECCNs 3B001 and 3B002), 3E003.e (limited to the “development” and “production” of integrated circuits for commercial applications), 4D001 and 4E001 (limited to the “development” of products under ECCN 4A003.

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

Rulemaking Requirements

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

2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and OMB Control Number 0694-0088 are not expected to increase significantly as a result of this rule. Notwithstanding any other provisions of law, no person is required to respond to, nor be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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

4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because they are unnecessary. In determining whether to grant VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313 (July 6, 2006) (proposed rule), and 72 FR 33646 (June 19, 2007) (final rule)). Given the similarities between the authorizations provided under the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy. In publishing this final rule, BIS amends the authorization for an existing eligible VEU to remove an eligible destination (facility), revise an existing eligible destination (facility) to add a building, and remove an eligible item no longer listed on the CCL. These changes have been made within the established regulatory framework of the VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR.

Publication of this rule in other than final form is unnecessary because the authorizations granted in the rule are consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. In addition, as with license applications, VEU authorization applications contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such applications. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Additionally, just as license applications are reviewed through an interagency review process, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments, allowing additional public comment on this amendment to individual VEU authorizations, which was determined according to those criteria, is unnecessary.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. However, BIS finds good cause to waive the 30-day delay in effectiveness for this rule pursuant to 5 U.S.C. 553(d)(3) because the delay would be contrary to the public interest. BIS is simply amending the authorization of an existing VEU by removing an existing eligible destination (facility), revising the address of another eligible destination (facility) to add a building, and removing an eligible item no longer listed on the CCL. BIS amends the EAR in this rule consistent with established objectives and parameters administered and enforced by the responsible designated departmental representatives to the End-User Review Committee. Delaying this action's effectiveness would likely cause confusion regarding which items are authorized by the U.S. Government and in turn stifle the purpose of the VEU Program. Accordingly, it is contrary to the public interest to delay this rule's effectiveness.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 748

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

Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:

PART 748—[AMENDED] 1. The authority citation for part 748 continues to read as follows: Authority:

50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

2. Amend Supplement No. 7 to part 748 by revising the entry for “Advanced Micro Devices China, Inc.” in “China (People's Republic of)” to read as follows: Supplement No. 7 to Part 748—Authorization Validated End-User (Veu): List of Validated End-Users, Respective Items Eligible for Export, Re-export and Transfer, and Eligible Destinations Country Validated
  • end-user
  • Eligible items
  • (by ECCN)
  • Eligible destination Federal Register
  • citation
  • Nothing in this Supplement shall be deemed to supersede other provisions in the EAR, including but not limited to § 748.15(c). China (People's Republic of) Advanced Micro Devices China, Inc 3D002, 3D003, 3E001 (limited to “technology” for items classified under 3C002 and 3C004 and “technology” for use during the International Technology Roadmap for Semiconductors (ITRS) process for items classified under ECCNs 3B001 and 3B002), 3E002 (limited to “technology” for use during the ITRS process for items classified under ECCNs 3B001 and 3B002), 3E003.e (limited to the “development” and “production” of integrated circuits for commercial applications), 4D001 and 4E001 (limited to the “development” of products under ECCN 4A003) Advanced Micro Devices (Shanghai) Co., Ltd., Buildings 33 (Unit 1), 46, 47, 48 & 49, River Front Harbor, Zhangjiang Hi-Tech Park, No. 1387 Zhang Dong Road, Pudong District, Shanghai, China 201203
  • AMD Technology Development (Beijing) Co., Ltd., North and South Buildings, RaycomInfotech, Park Tower C, No. 2 Science Institute South Rd., Zhong Guan Cun, Haidian District, Beijing, China 100190
  • 75 FR 25763, 5/10/10.
  • 76 FR 2802, 1/18/11.
  • 78 FR 3319, 1/16/13.
  • 81 FR [INSERT PAGE NUMBER],
  • 6/23/16.
  • Nothing in this Supplement shall be deemed to supersede other provisions in the EAR, including but not limited to § 748.15(c). AMD Products (China) Co. Ltd., North and South Buildings, RaycomInfotech Park Tower C, No. 2 Science Institute South Rd., Zhong Guan Cun, Haidian District, Beijing, China 100190 *         *         *         *         *         *         *
    Dated: June 17, 2016. Matthew S. Borman, Deputy Assistant Secretary for Export Administration.
    [FR Doc. 2016-14902 Filed 6-22-16; 8:45 am] BILLING CODE 3510-33-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 241 [Release No. 34-78102; File No. S7-03-16] Commission Interpretation Regarding Automated Quotations Under Regulation NMS AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Final interpretation.

    SUMMARY:

    The Securities and Exchange Commission is issuing a final interpretation with respect to the definition of automated quotation under Rule 600(b)(3) of Regulation NMS.

    DATES:

    Effective June 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Richard Holley III, Assistant Director, Michael Bradley, Special Counsel, or Michael Ogershok, Attorney-Adviser, Office of Market Supervision, at 202-551-5777, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.

    SUPPLEMENTARY INFORMATION: I. Background

    Rule 611 of Regulation NMS provides intermarket protection against trade-throughs for “automated” (as opposed to “manual”) quotations of NMS stocks. Under Regulation NMS, an “automated” quotation is one that, among other things, can be executed “immediately and automatically” against an incoming immediate-or-cancel order. The Regulation NMS Adopting Release issued in 2005 makes clear that this formulation was intended to distinguish and exclude from protection quotations on manual markets that produced delays measured in seconds in responding to an incoming order, because delays of that magnitude would impair fair and efficient access to an exchange's quotations.1 In the Regulation NMS Adopting Release, the Commission interpreted the term “immediate” to “preclude[ ] any coding of automated systems or other type of intentional device that would delay the action taken with respect to a quotation.” 2

    1See Securities Exchange Act Release No. 51808 (June 9, 2005) 70 FR 37496, 37500 & n.21, 37501 (June 29, 2005) (“Regulation NMS Adopting Release”). The Commission notes that the smallest time increment suggested by commenters at the time Regulation NMS was adopted was 250 milliseconds. See id. at 37518. See also infra note 15 (discussing the distinction between “automated quotations” and “manual quotations” and noting that “[t]he difference in speed between automated and manual markets often is the difference between a 1-second response and a 15-second response . . . .”).

    2See Regulation NMS Adopting Release, supra note 1, at 37534.

    In light of the application of Investors' Exchange LLC (“IEX”) 3 to register as an exchange and technological and market developments since the adoption of Regulation NMS, the Commission decided to revisit this interpretation. The Commission believes its prior interpretation should be updated given technological and market developments since the adoption of Regulation NMS, in particular the emergence of low latency trading strategies and related technology that permit trading decisions to be made in microseconds, neither of which were contemplated by the Commission or commenters in 2005.4 As further addressed below, the Commission now interprets “immediate” in the context of Regulation NMS as not precluding a de minimis intentional delay—i.e., a delay so short as to not frustrate the purposes of Rule 611 by impairing fair and efficient access to an exchange's quotations.5

    3See Securities Exchange Act Release Nos. 75925 (September 15, 2015), 80 FR 57261 (September 22, 2015) (File No. 10-222) (original notice); and 77406 (March 18, 2016), 81 FR 15765 (March 24, 2016) (File No. 10-222) (notice of amendments, order instituting proceedings, and extension of time).

    4 IEX's Form 1 includes an intentional access delay that imposes 350 microseconds of one-way latency for non-routable orders. IEX's access delay is discussed in the Commission's final order on IEX's Form 1. See Securities Exchange Act Release No. 78101 (June 17, 2016) (File No. 10-222) (order granting IEX's exchange registration) (“IEX Form 1 Approval Order”).

    5See Regulation NMS Adopting Release, supra note 1, at 37520 (noting that “[f]or a trading center to qualify as entitled to display any protected quotations, the public in general must have fair and efficient access to a trading center's quotations”).

    A. Regulation NMS: Automated Quotation and Protected Quotation

    In general, Rule 611 under Regulation NMS (the “Order Protection Rule,” or “Trade-Through Rule”) protects the best “automated” quotations of exchanges by obligating other trading centers to honor those “protected” quotations by not executing trades at inferior prices, or “trading through” such best automated quotations.6 Only an exchange that is an “automated trading center” 7 displaying an “automated quotation” 8 is entitled to this protection.9 Trading centers must establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trade-throughs of protected quotations, unless an exception or exemption applies.10

    6See 17 CFR 242.611. When it adopted Regulation NMS, the Commission explained that one purpose of the Order Protection Rule was to incentivize greater use of displayed limit orders, which contribute to price discovery and market liquidity, by protecting them from trade-throughs. See Regulation NMS Adopting Release, supra note 1, at 37516-17. In discussing whether to apply order protection to non-automated, “manual” quotations, the Commission stated that “providing protection to manual quotations, even limited to trade-throughs beyond a certain amount, potentially would lead to undue delays in the routing of investor orders, thereby not justifying the benefits of price protection.” Id. at 37518. The Commission also noted that “those who route limit orders will be able to control whether their orders are protected by evaluating the extent to which various trading centers display automated versus manual quotations.” Id. In addition, the Commission intended that the Order Protection Rule would reinforce a broker's duty of best execution by prohibiting executions at inferior prices absent an exception. See id. at 37516 (“Given the large number of trades that fail to obtain the best displayed prices (e.g., approximately 1 in 40 trades for both Nasdaq and NYSE stocks), the Commission is concerned that many of the investors that ultimately received the inferior price in these trades may not be aware that their orders did not, in fact, obtain the best price. The Order Protection Rule will backstop a broker's duty of best execution on an order-by-order basis by prohibiting the practice of executing orders at inferior prices, absent an applicable exception.”).

    7See 17 CFR 242.600(b)(4). References to “exchange” used herein apply also to facilities of national securities associations. See 17 CFR 242.600(b)(57).

    8See 17 CFR 242.600(b)(3).

    9See 17 CFR 242.600(b)(57) (defining “protected bid or protected offer”) and 242.600(b)(58) (defining “protected quotation”). See also Regulation NMS Adopting Release, supra note 1, at 37504 (stating that “[t]o qualify for protection, a quotation must be automated”).

    10 17 CFR 242.611(a)(1).

    There are several provisions in Regulation NMS that impact whether the Order Protection Rule applies. First, Rule 600(b)(58) defines a “protected quotation” as a “protected bid or a protected offer.” 11 Rule 600(b)(57), in turn, defines a “protected bid or protected offer” as a quotation in an NMS stock that is: (i) Displayed by an “automated trading center,” (ii) disseminated pursuant to an effective national market system plan, and (iii) an “automated quotation” that is the best bid or best offer of a national securities exchange or national securities association.12

    11 17 CFR 242.600(b)(58).

    12 17 CFR 242.600(b)(57).

    In order for an exchange to operate as an “automated trading center,” it must, among other things, have “implemented such systems, procedures, and rules as are necessary to render it capable of displaying quotations that meet the requirements for an `automated quotation' set forth in [Rule 600(b)(3) of Regulation NMS].” 13 Rule 600(b)(3) defines an “automated quotation” as one that:

    13 17 CFR 242.600(b)(4). Rule 600(b)(4) contains additional requirements that must be satisfied in order to be an automated trading center. Those requirements are not at issue for purposes of this interpretation.

    i. Permits an incoming order to be marked as immediate-or-cancel;

    ii. Immediately and automatically executes an order marked as immediate-or-cancel against the displayed quotation up to its full size;

    iii. Immediately and automatically cancels any unexecuted portion of an order marked as immediate-or-cancel without routing the order elsewhere;

    iv. Immediately and automatically transmits a response to the sender of an order marked as immediate-or-cancel indicating the action taken with respect to such order; and

    v. Immediately and automatically displays information that updates the displayed quotation to reflect any change to its material terms.14

    14See 17 CFR 242.600(b)(3). See also Regulation NMS Adopting Release, supra note 1, at 37504.

    Any quotation that does not meet the requirements for an automated quotation is defined in Rule 600(b)(37) as a “manual” quotation.15

    15 Regulation NMS Adopting Release, supra note 1, at 37534. See also 17 CFR 242.600(b)(37) (defining “manual quotation”). The Commission also provided context as to the distinction between “automated quotations” and “manual quotations.” At the time of the adoption of Regulation NMS, manual quotations and markets that primarily were centered around human interaction in a floor-based trading environment, including “hybrid” manual-automated trading facilities, experienced processing delays for inbound orders that were measured in multiple seconds. See Regulation NMS Adopting Release, supra note 1, at 37500 n.21 (“One of the primary effects of the Order Protection Rule adopted today will be to promote much greater speed of execution in the market for exchange-listed stocks. The difference in speed between automated and manual markets often is the difference between a 1-second response and a 15-second response . . . .”). In contrast to floor-based and hybrid markets that existed at the time Regulation NMS was adopted, newer automated matching systems coming more widely into use removed the human element and instead immediately matched buyers and sellers electronically. The Commission also explained that the Order Protection Rule took a substantially different approach to intermarket price protection than the existing trade-through protection regime at the time—the Intermarket Trading System (“ITS”) Plan. See id. at 37501. As the Commission noted, the ITS provisions did not distinguish between manual and automated quotations and “fail[ed] to reflect the disparate speed of response between manual and automated quotations” as they “were drafted for a world of floor-based markets.” Id. As a result, “[b]y requiring order routers to wait for a response from a manual market, the ITS trade-through provisions can cause an order to miss both the best price of a manual quotation and slightly inferior prices at automated markets that would have been immediately accessible.” Id. In addition, the Commission emphasized that Rule 611 does not “supplant or diminish” a broker-dealer's duty of best execution. See id. at 37538.

    In adopting Regulation NMS, the Commission recognized that there would be unintentional time delays by automated trading centers in responding to orders, albeit very short ones.16 Although a number of commenters on Regulation NMS advocated for a specific time standard, ranging from one second down to 250 milliseconds,17 to distinguish between manual and automated quotations,18 the Commission declined to set such a standard.19 Instead, in interpreting the term “immediate[ ]” when adopting Rules 600 and 611, the Commission stated that “[t]he term `immediate' precludes any coding of automated systems or other type of intentional device that would delay the action taken with respect to a quotation.” 20

    16See infra note 23 and accompanying text (discussing the exception in Rule 611(b)(1) for small unintentional delays).

    17 A millisecond is one thousandth of a second.

    18See Regulation NMS Adopting Release, supra note 1, at 37519.

    19See id. at 37519 (“The definition of automated quotation as adopted does not set forth a specific time standard for responding to an incoming order.”).

    20Id. at 37534. The Commission also stated that the standard for responding to an incoming order “should be `immediate,' i.e., a trading center's systems should provide the fastest response possible without any programmed delay.” Id. at 37519. Further, the Commission also stated that, for a quotation “[t]o qualify as `automatic,' no human discretion in determining any action taken with respect to an order may be exercised after the time an order is received,” and “a quotation will not qualify as `automated' if any human intervention after the time an order is received is allowed to determine the action taken with respect to the quotation.” Id. at 37519 and 37534.

    The only precise time standards approved by the Commission in Rule 611 and the Regulation NMS Adopting Release arise in the context of two exceptions to Rule 611 covering circumstances in which trade-through protection would not apply. These exceptions illustrate the time dimensions the Commission had in mind in distinguishing quotations that should receive trade-through protection from those that should not, and notably, both use a one-second standard.21 Specifically, Rule 611(b)(1) provides that trading centers may trade through quotations of automated trading centers that experience a “failure, material delay, or malfunction.” 22 The Commission accepted that the “immediate” standard necessarily would accommodate unintentional delays below the threshold of a “material delay,” which it interpreted in light of “current industry conditions” as one where a market was “repeatedly failing to respond within one second after receipt of an order.” 23 The Commission similarly established a one-second standard for the exception in Rule 611(b)(8), which excepts trade-through protection where the trading center that was traded-through had displayed, within the prior one second, a price equal or inferior to the price of the trade-through transaction.24 In discussing the 611(b)(8) exception, the Commission stated that it “generally does not believe that the benefits would justify the costs imposed on trading centers of attempting to implement an intermarket price priority rule at the level of sub-second time increments. Accordingly, Rule 611 has been formulated to relieve trading centers of this burden.” 25 In adopting these exceptions to Rule 611, the Commission contemplated the existence of very short unintentional delays of a magnitude up to one second that would not affect the protected status of an “immediate” automated quotation. Since then, the market and the technology have evolved.

    21See 17 CFR 242.611(b)(1) and (8); see also Regulation NMS Adopting Release, supra note 1, at 37519 (discussing the one-second standard in Rule 611(b)(1)) and id. at 37523 (discussing the one-second standard in Rule 611(b)(8)). One second is 1,000,000 microseconds.

    22 17 CFR 242.611(b)(1).

    23See Regulation NMS Adopting Release, supra note 1, at 37519. In other words, the Commission viewed the phrase “fastest response possible” as consistent with an unintentional delay of less than one second whereby participants could consider an automated trading center experiencing a delay beyond that limit to no longer be “immediately” accessible.

    24See 17 CFR 242.611(b)(8).

    25 Regulation NMS Adopting Release, supra note 1, at 37523.

    B. The Commission's Updated Interpretation of Automated Quotation

    The Commission proposed to interpret “immediate” when determining whether a trading center maintains an “automated quotation” for purposes of Rule 611 “to include response time delays at trading centers that are de minimis, whether intentional or not.” 26 The Commission further stated its preliminary belief “that, in the current market, delays of less than a millisecond in quotation response times may be at a de minimis level that would not impair a market participant's ability to access a quote, consistent with the goals of Rule 611 and because such delays are within the geographic and technological latencies experienced by market participants today.” 27 As discussed below, the Commission received a number of comments on its proposed interpretation and, after considering those comments, has determined to issue a revised interpretation from that which it originally proposed, as detailed further below.

    26 Securities Exchange Act Release No. 77407 (March 18, 2016), 81 FR 15660, 15661 (March 24, 2016) (S7-03-16) (“Notice of Proposed Interpretation”). Because IEX's POP/coil delay is designed purposefully and intentionally to delay access to its matching engine, and consequently delays access to IEX's displayed quotation (See Letter from Sophia Lee, IEX, to Brent J. Fields, Secretary, Commission, dated November 13, 2015 (“IEX First Form 1 Letter”) at 4 (comment letter on File No. 10-222)), IEX would not be an automated market under the interpretation of “immediate” in the Regulation NMS Adopting Release as “[t]he term `immediate' precludes any coding of automated systems or other type of intentional device that would delay the action taken with respect a quotation.” Regulation NMS Adopting Release, supra note 1, at 37534.

    27 Notice of Proposed Interpretation, supra note 26, at 15665.

    II. Comments Received and Commission Discussion

    The Commission received 24 comments 28 on its proposed interpretation.29 Commenters raised a number of issues, including whether intentional sub-millisecond delays are in fact de minimis or would materially complicate market structure, as well as requests to clarify the scope and details of the interpretation.

    28See Letters (“Interp Letter(s)”) from Rajiv Sethi to Brent J. Fields, Secretary, Commission, dated March 21, 2016; Stacius Sakato to Brent J. Fields, Secretary, Commission, dated March 28, 2016; David Lauer, Healthy Markets Association, to Brent J. Fields, Secretary, Commission, dated April 1, 2016; Hazel Henderson, Ethical Markets Media, to Brent J. Fields, Secretary, Commission, dated April 1, 2016; R.T. Leuchtkafer to Brent J. Fields, Secretary, Commission, dated April 8, 2016; Sal Arnuk and Joe Saluzzi, Themis Trading, to Brent J. Fields, Secretary, Commission, dated April 12, 2016; R. Glenn Hubbard, John L. Thornton, and Hal S. Scott, Committee on Capital Markets Regulation, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; Mary Ann Burns, FIA Principal Traders Group, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; William J. Stephenson, Franklin Templeton Investments, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; John Nagel, Citadel, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; Eric Budish to Brent J. Fields, Secretary, Commission, dated April 14, 2016; Bryan Thompson, British Columbia Investment Management Corporation, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; Adam Nunes, Hudson River Trading (“HRT”), to Brent J. Fields, Secretary, Commission, dated April 14, 2016; William R. Harts, Modern Markets Initiative, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; Joan C. Conley, Nasdaq, to Brent J. Fields, Secretary, Commission, dated April 14, 2016; D. Keith Ross, PDQ Enterprises, to Brent J. Fields, Secretary, Commission, dated April 15, 2016; David Weisberger, Markit, to Brent J. Fields, Secretary, Commission, dated April 18, 2016; Elizabeth K. King, NYSE, to Brent J. Fields, Secretary, Commission, dated April 18, 2016; Kevin J. Weldon to Brent J. Fields, Secretary, Commission, dated April 20, 2016; Sophia Lee, IEX, to Brent J. Fields, Secretary, Commission, dated April 25, 2016; Abraham Kohen, AK Financial Engineering Consultants, to Brent J. Fields, Secretary, Commission, dated April 25, 2016; Theodore R. Lazo, SIFMA, to Brent J. Fields, Secretary, Commission, dated May 2, 2016; The Honorable Randy Hultgren to Mary Jo White, Commission, dated May 2, 2016; Amir C. Tayrani, Gibson, Dunn & Crutcher LLP to Brent J. Fields, Secretary, Commission, dated May 19, 2016.

    29 As discussed and summarized in the Commission's notice of its proposed interpretation, the Commission also received comments on the issue addressed by this interpretation in response to the initial notice of IEX's Form 1. See Notice of Proposed Interpretation, supra note 26, at 15660, 15663-64. Those comments are also discussed in the Commission's order approving IEX's Form 1 application for exchange registration, which the Commission is separately issuing today. See IEX Form 1 Approval Order, supra note 4.

    A. De minimis for Purposes of Rule 611

    Several commenters questioned whether de minimis intentional delays were permissible and whether delays of less than a millisecond could be considered de minimis in the current market. One commenter asserted that any intentional delay, even a de minimis one, “is flatly inconsistent with the plain meaning of `immediate[ ],' ” 30 referring to the dictionary definition of that term as “ `[o]ccurring without delay' or `instant'.” 31 Another commenter asserted that “[o]ne millisecond is not de minimis in any context except from the perspective of a human trader” and noted that a millisecond “is over 10 times longer than the response time of most exchanges today.” 32 The commenter believed that sub-millisecond delays would “impair a market participant's ability to access a quote.” 33 Another commenter argued that a millisecond is “excessively long when compared to computer response times.” 34 One commenter believed that a sub-millisecond standard “will become obsolete at faster and faster rates” as communications technology evolves.35

    30 Gibson Dunn Interp Letter at 3.

    31 Gibson Dunn Interp Letter at 2 (citing to Black's Law Dictionary and Webster's Third New International Dictionary).

    32 HRT Interp Letter at 2. The commenter further noted that one millisecond is “approximately three times the time via fiber between the furthest New Jersey data centers and approximately 1/8th the time to Chicago via fiber from the New Jersey datacenters.” Id. at 2-3.

    33 HRT Interp Letter at 2. This commenter also cited to the Commission's MIDAS data from the fourth quarter of 2015, which showed that over 13% of displayed orders in large stocks are cancelled within one millisecond and over 9% of displayed orders in large stocks are executed within one millisecond, and concluded that “[g]iven that over 20% of orders are either executed or canceled during the first millisecond they were displayed, it seems likely that a one millisecond delay would have a material impact on a participant's ability to access the quotations.” See id. The commenter qualified its observation by noting that these figures are relevant “[t]o the extent that a market with similar order cancellation patterns implemented a one millisecond delay.” See id. The commenter also recommended that an exchange that imposes an intentional delay “allow market participants to bypass the delay when attempting to access `protected quotations'.” Id. at 1-2. See also Citadel Interp Letter at 4 (“A time interval in which approximately 10% of executions in many of the most widely traded stocks typically occur is manifestly not de minimis.”); NYSE Interp Letter at 7. The Commission notes that it is not clear whether an exchange with an access delay that does not offer features (like co-location, post-only orders, or maker-taker fees) that typically attract latency-sensitive traders, who may be more likely to cancel their orders within one millisecond of placing them, would experience those cancellation rates. Further, the Commission notes that Rule 611 focuses on inter-market order protection, which applies only when market participants access protected quotations at geographically dispersed trading centers that are already subject to varying processing delays, some of which may be a millisecond or more. A one millisecond intentional access delay is well within the current geographic and technological latencies already experienced by market participants when routing orders between trading centers.

    34 FIA PTG Interp Letter at 3. The commenter further noted that “[f]or comparison, modern exchange matching engines process orders in considerably less than 1/20 of that time, and geographic latencies between the major exchange data centers in New Jersey are generally less than 1/4 of that time.” Id. See also Nasdaq Interp Letter at 6 (noting that the throughput time of Nasdaq's system is 40 microseconds); Kohen Interp Letter at 1 (noting that the Bombay Stock Exchange processes a transaction in 6 microseconds).

    35See Nasdaq Interp Letter at 3. See also HRT Interp Letter at 3 (noting that “a one millisecond time standard . . . is already obsolete”); FIA PTG Interp Letter at 6 (“One millisecond is slow by today's computer standards, and will be even slower (relatively speaking) in the future.”). Some commenters criticized the proposed interpretation as lacking empirical support for a sub-millisecond threshold or consideration of alternative delays. See Nasdaq Interp Letter at 4; Citadel Interp Letter at 3; Budish Interp Letter at 2. As discussed above, the Commission notes that the interpretation uses a de minimis standard, and not a specific time frame demarcating permissible versus impermissible access delays.

    Other commenters expressed concern that intentional access delays, even de minimis ones, could add unnecessary complexity to the markets. In particular, the commenters stressed that such delays could cause orders to be routed to protected quotes that are no longer available. For example, one commenter expressed concern that the proposed interpretation could turn the national market system “into a hall of mirrors where it's impossible to know which prices are real and which are latent reflections.” 36 The commenter opined that intentional access delays would “harm market transparency and degrade the value of the NBBO” and “lead directly to lower fill rates” when orders cannot be filled because the exchange with an access delay displays a stale better-priced quote that no longer exists but has yet to communicate that information.37 Another commenter argued that the interpretation could make market structure “considerably more complex” and lead to “ghost quotes” that could “cloud price discovery and corrode execution quality.” 38 The commenter further noted that “an artificial delay in an exchange quote anywhere affects the markets everywhere” and expressed concern that the proposed interpretation could negatively impact otherwise efficient and accessible markets.39 One commenter expressed concern that intentional delays might “open the floodgates to a new wave of complex order types” with delays ranging from 1 to 1,000 microseconds.40 Other commenters, however, opined that intentional access delays would not add complexity to the markets and would fit within current latencies experienced by trading centers. For example, one commenter asserted that a 350 microsecond delay is “not much more than the normal latency that all trading platforms impose,” and that an exchange could achieve the same delay by “locat[ing] its primary data center 65 or more miles away from the other exchange data centers.” 41

    36 FIA PTG Interp Letter at 2.

    37 FIA PTG Interp Letter at 5. The commenter argued that this might result in the appearance of more locked and crossed markets, which may interfere with market stability during periods of high volatility. See id.

    38 PDQ Interp Letter at 1.

    39Id. at 2.

    40 Nasdaq Interp Letter at 3-4; Gibson Dunn Interp Letter at 7.

    41 Letter from James J. Angel to Securities and Exchange Commission, dated December 5, 2015, at 3 (comment letter on IEX Form 1, File No. 10-222). See also Letter from Larry Tabb, TABB Group, to Brent J. Fields, Secretary, Commission, dated November 23, 2015, at 1 (comment letter on IEX Form 1, File No. 10-222) (arguing that IEX's 350 microsecond delay is not “particularly problematic, as the time gap is minimal, and (even including the speed bump) IEX matches orders faster than a number of other markets”); Letter from Charles M. Jones to Brent Fields, Secretary, Commission, dated March 2, 2016, at 2 (comment letter on IEX Form 1, File No. 10-222) (noting that “from an economic point of view the 350-microsecond delay [proposed by IEX] per se should not be a particular cause for concern, as it is well within the bounds of the existing, geographically dispersed National Market System, and does not seem likely to contribute substantially to a phantom liquidity problem”).

    In response to a comment that the dictionary definition of the term “immediate[ ]” precludes any delay in accessing quotations, the Commission notes that quotations cannot be accessed instantaneously.42 As the Commission repeatedly acknowledged when adopting Regulation NMS, even “immediately” accessible protected quotations in the context of Rules 600 and 611 are necessarily subject to some delay.43 Specifically, as noted above, the Regulation NMS Adopting Release discussed these delays and, although the Commission declined to set a specific time standard, it contemplated the existence of very short unintentional delays of a magnitude up to one second in the exceptions to Rule 611.

    42See supra note 31 (citing to the Gibson Dunn Interp Letter).

    43 For example, the Rule 611(b)(1) exception refers to a “material” delay, which the Commission interpreted as one second or more. See Regulation NMS Adopting Release, supra note 1, at 37519. In addition, the comment letters on Regulation NMS expressed a multitude of views on the appropriate standard for assessing the accessibility of a protected quotation. See also supra text accompanying note 17 (noting that commenters on Regulation NMS who advocated for setting a specific time standard for automated quotations recommended a range of times from one second down to 250 milliseconds).

    The Commission notes that, when it adopted Regulation NMS in 2005, processing times were longer than they are now.44 Today, low latency technology permits trading decisions to be made in microseconds, and certain market participants use the fastest gateways and purchase co-location to compete to access quotations at those speeds.45 As discussed further below, however, even the fastest market participants today must access protected quotations on trading centers where there are delays of several milliseconds as a result of geography alone. In addition, trading centers today are attempting to address concerns with the fastest trading strategies by creating very small delays in accessing their quotations.46 The Commission does not agree that such efforts are incompatible with the Order Protection Rule. In the context of Regulation NMS, the term “immediate” does not preclude all intentional delays regardless of their duration, and such preclusion is not necessary to achieve the objectives of Rule 611. As long as any intentional delay is de minimisi.e., does not impair fair and efficient access to an exchange's protected quotations—it is consistent with both the text and purpose of Rule 611.

    44See supra text accompanying note 17 (noting that commenters on Regulation NMS who advocated for setting a specific time standard for automated quotations recommended a range of times from one second down to 250 milliseconds).

    45 Exchanges currently have delays within their systems, including access gateways of varying speeds as well as within their co-location infrastructure. For example, some exchanges intentionally employ a “delay coil” in their co-location facilities or offer different access gateways of varying speeds where one is not as “fast as technologically feasible” as the other. See IEX First Form 1 Letter at 3 (comment letter on File No. 10-222) (referring to varying connectivity options offered by exchanges from the NYSE, Nasdaq, and BATS groups, and citing the CEO of Nasdaq referring to the intentional “delay coil” that Nasdaq uses inside its co-location infrastructure). Compare Gibson Dunn Interp Letter at 3 (writing on behalf of Nasdaq) (stating “the term `immediate[]' in Rule 600(b)(3) unambiguously forecloses intentional, planned delay” and referring to “the Commission's own understanding that the term [immediately] requires response times that are as fast as technologically feasible”).

    46See, e.g., supra note 45 (discussing intentional delays imposed in the exchange co-location context).

    In response to commenters that argued that an intentional de minimis delay would harm market transparency, degrade the NBBO, or cloud price discovery, the Commission notes, as discussed further below, that Rule 600(b)(3)(v) requires trading centers to immediately update their displayed quotations to reflect material changes. Market participants today already necessarily experience very short delays in receiving updates to displayed quotations, as a result of geographic and technological latencies, similar to those experienced when accessing protected quotations. The Commission does not believe the introduction of intentional delays of even smaller magnitude will impair fair and efficient access to protected quotations.

    In response to commenters' concern that an intentional delay is not de minimis or could add complexity to the market, the Commission notes that its interpretation does not address whether delays are de minimis in all trading contexts, but rather only whether they impair fair and efficient access to an exchange's quotations when a market participant routes an order to comply with Rule 611.

    Systems processing and transit times, whether at the exchange, the market participant sending the order, or its agent, all create latencies in accessing protected quotations.47 Even the most technologically advanced market participants today encounter delays in accessing protected quotations of other “away” automated trading centers that either are transitory (e.g., as a result of message queuing) or permanent (e.g., as a result of physical distance). Furthermore, as noted above, any market participant co-located with the major exchanges' data centers in northern New Jersey necessarily encounters delays of 3-4 milliseconds—due to geography alone—in accessing the protected quotations of securities traded on the Chicago Stock Exchange's matching engine in Chicago.48 No commenter asserted that the periodic message queuing or minor systems-processing delays encountered at exchanges with protected quotations, or the time it takes to access the protected quotes of the Chicago Stock Exchange's Chicago facility, would, for example, materially undermine market quality or price transparency, or the efficiency of order routing or trading strategies.49

    47See supra note 34 (discussing comments on exchange processing times).

    48 Similarly, they would encounter delays in reaching other “away” exchanges located in other data centers. See, e.g., Letter from David Lauer, Healthy Markets Association, to Brent J. Fields, Secretary, Commission, dated November 6, 2015, at 4 (comment letter on IEX Form 1, File No. 10-222) (noting that “[t]he NBBO already includes quotes with varied degrees of time lag” and that the length of IEX's coiled cable “is far less than the distance between NY and Chicago, and is remarkably similar to the distance between Carteret and Mahwah (36 miles)”); Letter from Sophia Lee, IEX, to Brent J. Fields, Secretary, Commission, dated November 23, 2016, at 4 and 7 (comment letter on IEX Form 1, File No. 10-222) (referring to data from certain subscribers to IEX's ATS that, according to IEX, indicate that those subscribers' average latency when trading on IEX is comparable to that when trading on certain other exchanges, “is an order of magnitude less than that of the Chicago Stock Exchange,” and “is on average less than the round-trip latency of the NYSE as well”).

    49 From the perspective of a market participant based in New Jersey, classifying a New Jersey market with an intentional sub-millisecond delay as “manual” while classifying a Chicago market with geographic delay measured in multiple milliseconds as “automated” would be inequitable and would not further the goals of Regulation NMS.

    The Commission acknowledges that interpreting “immediate” to include an intentional de minimis access delay, because it would be additive, may increase the overall latency in accessing a particular protected quotation, albeit by a very small amount. Such delays may be a detectable difference for the most latency-sensitive market participants and could marginally impact the efficiency of some of their quoting and trading strategies, even if such intervals likely are immaterial to investors with less advanced trading technology or a longer-term investing horizon. But the Commission believes that just as the geographic and technological delays experienced today do not impair fair and efficient access to an exchange's quotations or otherwise frustrate the objectives of Rule 611, the addition of a de minimis intentional access delay is consistent with Rule 600(b)(3)'s “immedia[cy]” requirement.50

    50 One commenter argued that there is “no evidence of a need for a de minimis exception or that planned delays will benefit investors in any meaningful way.” Gibson Dunn Interp Letter at 7. See also Nasdaq Interp Letter at 5. As discussed above, however, the Commission believes that its updated interpretation is warranted in light of technological and market developments and is consistent with the purposes of Rule 611. See also comments submitted on IEX's exchange registration (File No. 10-222), a number of which supported the intentional delay proposed by IEX.

    Further, the Commission notes that its interpretation uses a de minimis standard specifically so that it may evolve with technological and market developments. As it did when it established the “immediate” standard, the Commission believes it remains appropriate to avoid “specifying a specific time standard that may become obsolete as systems improve over time.” 51 As explained further below, the Commission's revised interpretation provides that the term “immediate” precludes any coding of automated systems or other type of intentional device that would delay the action taken with respect to a quotation unless such delay is de minimis in that it would not impair a market participant's ability to fairly and efficiently access a quote, consistent with the goals of Rule 611.

    51 Regulation NMS Adopting Release, supra note 1, at 37519.

    B. Operation of Access Delays

    Several commenters that expressed general concerns with an intentional access delay, even a de minimis one, expressed a particular concern with those that would be “selectively” applied (e.g., intentional delays that are applied to members but not to the exchange itself).52 In addition, several commenters asserted that the Commission's proposed interpretation was overbroad based on their belief that it would “permit all sub-millisecond delays, regardless of how those delays operate, the reasoning and incentives behind the delays, or the impacts on the markets and investors.” 53 These commenters instead urged the Commission to “evaluate each proposed delay, regardless of its duration, and specifically determine that it is designed and applied in a manner that is consistent with the purposes of the Exchange Act.” 54 Another commenter urged the Commission to “take into account not just the length of the delay, but also its purpose.” 55

    52See, e.g., FIA PTG Interp Letter at 6; MMI Interp Letter at 1; Weldon Interp Letter at 1-2.; NYSE Interp Letter at 4; Citadel Interp Letter at 8; Markit Interp Letter at 2-3.

    53 Healthy Markets Interp Letter at 2. See also Ethical Markets Interp Letter at 2-3, Franklin Templeton Interp Letter, British Columbia Investment Management Corporation Interp Letter (each repeating the recommendation of the Healthy Markets Interp Letter); and Themis Interp Letter at 2.

    54 Healthy Markets Interp Letter at 3. See also Ethical Markets Interp Letter at 2-3, Franklin Templeton Interp Letter, and British Columbia Investment Management Corporation Interp Letter (each repeating the recommendation of the Healthy Markets Interp Letter). The commenters further urged that the interpretation be conditioned on: (1) Delays always being less than one millisecond; (2) delays being applied equally to all participants and across all order types; (3) data sent to the Securities Information Processors should not be delayed; and (4) the purpose of each delay is expressly stated and intended to benefit long-term investors. See Healthy Markets Interp Letter at 4. See also Ethical Markets Interp Letter at 2-3, Franklin Templeton Interp Letter, and British Columbia Investment Management Corporation Interp Letter (each repeating the recommendation of the Healthy Markets Interp Letter). Another commenter raised a similar concern, and urged the Commission to review each proposed access delay separately and “ensure that any such delays are equally applied to all market participants.” See Committee on Capital Markets Regulation Interp Letter at 2. One commenter urged the Commission to consider “one single measuring stick: Will the proposed delay serve long term investors?” Themis Interp Letter at 2.

    55 Sethi Interp Letter at 2 (emphasis in original). Another commenter suggested an alternative definition of “immediate” that is not “elapsed-time dependent” but instead would consider an exchange's response to an incoming order to be “immediate” if the transition of the displayed quote from point A (before the order is received) to B (after the order is received) can be “fully attributed to the execution of [the order] in a determinative way.” Sakato Interp Letter at 1-2. The Commission believes that at this time an order-by-order determination of whether a quotation is “protected” could introduce unworkable complexity into order routing and could frustrate the incentive provided to market participants to post the resting displayed limit orders that underpin much of the price discovery in the market.

    The Commission notes that this interpretation does not address whether any particular access delay is unfairly discriminatory, an inappropriate or unnecessary burden on competition, or otherwise inconsistent with the Act. Rather, it clarifies that if an intentional access delay is de minimis, then it is “immediate” for purposes of Rules 600(b)(3) and 611. While the Commission's interpretation is narrowly focused on the meaning and application of the word “immediate[ ]” in Rule 600(b)(3) in light of technological and market developments since the adoption of Regulation NMS in 2005, the evaluation of any proposed access delay would involve additional considerations.

    Specifically, this interpretation does not obviate the requirement of individualized review of proposed access delays, including de minimis delays, for consistency with the Exchange Act and Regulation NMS. Any exchange seeking to impose an access delay must reflect that in its rules, which are required to be filed with the Commission as part of the exchange application or as an individual proposed rule change. This interpretation does not alter the requirement that any exchange access delay must be fully described in a written rule of the exchange, which in turn must be filed with the Commission and published for notice and comment, nor does it obviate the need for a proposed rule change that would impose an access delay otherwise to comply with the Act and the regulations thereunder applicable to the exchange.56 Accordingly, the commenters' concerns and recommended conditions are addressed by the existing requirements and process through which exchanges publicly propose their rule changes under the Act, and each proposed access delay would be scrutinized on an individual basis through that process.57 Any proposed application of an access delay would therefore be subject to notice, comment, and the Commission's separate evaluation of the proposed rule change.58

    56 Only registered exchanges and associations can have “automated quotations” that are “protected quotations.” See 17 CFR 242.611(b)(57). Such entities are required by Section 19 of the Act to file all rules and proposed changes to their rules with the Commission so that the Commission can review and publish them for public notice and comment. See 15 U.S.C. 78s(b). Further, no proposed rule change can take effect unless approved by the Commission or otherwise permitted to become effective under the Act and rules thereunder. See id. Similarly, an applicant seeking to register as an exchange is required to file all proposed rules with the Commission on Form 1, which the Commission publishes for notice and comment. Once filed, the Commission evaluates each proposed rule change for consistency with the Act and the rules thereunder. An access delay would constitute a “rule” of an exchange because it would be a “stated policy, practice, or interpretation” that concerns a “material aspect” of the operation of an exchange, and thus any new or amended delay would require a filing. See 15 U.S.C. 78c(a)(27) (defining “rules of an exchange”); 17 CFR 240.19b-4(a)(6) (defining “stated policy, practice, or interpretation”); 17 CFR 240.19b-4 (noting that a stated policy, practice, or interpretation is deemed to be a proposed change unless it is fairly and reasonably implied by an existing rule or is concerned solely with the administration of the exchange). As required by Section 19(b) of the Act, Rule 19b-4, and Form 19b-4, such exchange would be required to, among other things, detail the purpose of the proposed delay and analyze how the delay is consistent with the Act, including the Section 6 standards governing, among other things, unfair discrimination, protection of investors and the public interest, inappropriate burdens on competition, and just and equitable principles of trade. See Section 19(b), Rule 19b-4 and Form 19b-4 (on which exchanges file their proposed rule changes).

    57See Citadel Interp Letter at 6-7 (acknowledging that new access delays would need to be filed with the Commission before they can be implemented, but expressing concern that it would “be exceedingly difficult for the staff to recognize all of the implications and impacts of each delay mechanism”).

    58 In the case of IEX, the Commission's separate order approving IEX's Form 1 addresses the POP/coil delay's consistency with the Act. See also SIFMA Interp Letter at 3 (recommending that “any intentional delay should be predictable and universally applied to all market participants in a non-discriminatory manner”).

    C. Other Comments

    A few commenters asked the Commission to provide more detail on the application of the proposed interpretation.59 For example, one commenter asked whether it applies to both inbound and outbound delays and whether it should be based on the exchange's fastest or slowest means of connecting.60 Other commenters asked how much variance will be permitted and whether unintentional delays also should be covered by the interpretation.61

    59See, e.g., HRT Interp Letter at 3; Nasdaq Interp Letter at 3.

    60See HRT Interp Letter at 3. See also Citadel Interp Letter at 9.

    61See, e.g., Citadel Interp Letter at 9-10. One commenter asked whether there would be a process to remove protected quotation status from an exchange that has an intentional delay that equals or exceeds one millisecond. See id. at 10. If any market participant experiences issues in accessing that exchange's quotation, it may consider the applicability of the exceptions specified in Rule 611(b), including the “material delay” condition of Rule 611(b)(1). See 17 CFR 242.611(b)(1). The Commission notes that the Rule 611(b)(1) “self-help” exception refers to a “material delay,” and in the Regulation NMS Adopting Release, the Commission provided an interpretation of the phrase “material delay” as one where a market was “repeatedly failing to respond within one second after receipt of an order.” See Regulation NMS Adopting Release, supra note 1, at 37519.

    The interpretation of “immediate” applies to the term as used in Rule 600(b)(3), so that it applies to any intentional delay imposed by an exchange through any means provided by the exchange to access its quotations. Further, as modified here from the proposed interpretation, the interpretation applies only to intentional delays, as unintentional delays are addressed by the existing exception contained in Rule 611(b)(1).62 Finally, in response to the commenters asking if both inbound and outbound delays should be taken into account when measuring the length of an intentional delay, the Commission notes that the intentional delay, as it pertains to the Order Protection Rule, is measured as a cumulative delay experienced by a non-routable order—in other words, the intentional delay applied on an order message sent into an exchange system through each of the events specified in the definition of “automated quotation” in Rule 600(b)(3). Specifically, any intentional delay imposed by the exchange in (1) executing an immediate-or-cancel order against its displayed quotation up to its full size, (2) cancelling any unexecuted portion of such order, or (3) transmitting a response to the sender of such order, should be added together in assessing compliance with Rule 611.63

    62See 17 CFR 242.611(b)(1). See also supra note 61 (discussing the self-help exception). Accordingly, the Commission is not including as part of the interpretation the phrase “whether intentional or not” to focus its interpretation on access delays that are intentional. While the Commission acknowledges that the one-second (i.e., 1,000,000 microseconds) interpretation included in the Regulation NMS Adopting Release for this exception, as well as the “one second” exception in Rule 600(b)(8), may warrant reconsideration in the future, that would be a separate analysis and the Commission is not addressing those exceptions in this interpretation. See also SIFMA Interp Letter at 4 (requesting that the Commission clarify that it is not changing the self-help threshold).

    63See 17 CFR 242.600(b)(3)(ii), (iii), and (iv), respectively. See also Regulation NMS Adopting Release, supra note 1, at 37534. In the case of IEX, the POP/coil delay imposes a 350 microsecond delay inbound to the matching engine for non-routable orders (but no additional delay when cancelling the unexecuted portion of the order) and a 350 microsecond delay outbound on the confirmation back to the order sender, for a cumulative 700 microsecond delay. In addition, the Commission notes that IEX permits incoming orders to be marked as immediate-or-cancel, as is required by Rule 600(b)(3). See 17 CFR 242.600(b)(3)(i). One commenter argued that a delay in outbound data could cause the data reported to “not accurately reflect the state of a quotation.” See Gibson Dunn Interp Letter at 7. This commenter also asserted that intentional delays in communicating reports of transactions would decrease their “informational value.” See Gibson Dunn Interp Letter at 7; Nasdaq Interp Letter at 2. The Commission notes that the geographic and technological latencies that market participants experience when routing to access a quotation also affect data disseminated from the trading center to the market participant. In other words, market participants already experience latencies when receiving quotation updates and transaction information. At least with respect to delays well within those existing latencies, the Commission does not believe that a market participant's general experience in receiving this information is likely to be altered depending on whether the delay is intentional or unintentional.

    One commenter recommended that the Commission engage in notice and comment rulemaking to effect “a change of this magnitude,” which it argued contradicts the “plain meaning of the term `immediate.' ” 64 The commenter argued that an interpretation is only appropriate to “provide guidance on how a new service or product not contemplated at the time a rule was adopted should be treated under existing rules.” 65 As discussed above, however, the Commission does not believe the dictionary definition of the term “immediate[ ]” forecloses de minimis intentional delays (i.e., intentional delays so short that they do not impair fair and efficient access to an exchange's quotations). The Commission is updating its prior interpretation in light of technological and market developments since the adoption of Regulation NMS in 2005 to accommodate very short intentional delays that do not impair fair and efficient access to protected quotations. Although the Commission did afford an opportunity for notice and comment by publishing a draft interpretation for comment, and did take the comments it received into consideration, the Commission was not required to undertake notice and comment rulemaking when updating its interpretation of its own regulation.

    64 Citadel Interp Letter at 1. See also Hultgren Interp Letter at 1; Gibson Dunn Interp Letter at 1-2.

    65 Citadel Interp Letter at 2-3.

    Other commenters focused on what they viewed as a potential opportunity for manipulative activity that could result from an access delay to a market displaying a protected quotation. One commenter opined that an access delay would make it easier to manipulate markets “by taking advantage of stale and inaccessible quotations displayed during the duration of any access delays,” and that such manipulative behavior “could be particularly powerful in relatively illiquid stocks.” 66 As an example, the commenter posited that a market participant could “safely manipulate a closing auction by sending displayed orders to an exchange with an intentional 999 microsecond delay and timing the submission of those orders for display 998 microseconds or less before the close” because “no other market participant could reach them in time.” 67 Another commenter argued that access delays could lead to “stale prices [that] are guaranteed to be displayed for a specific period of time up to 1 millisecond,” which would cause pegged orders on other exchanges to “be traded against at known stale prices” when such pegged order is pegged to the stale price on the exchange with the access delay.68 The commenter argued that this could lead to “a potentially new mechanism for spoofing . . . with the objective of affecting pegged orders on other exchanges.” 69

    66Id. at 6.

    67Id.

    68 NYSE Interp Letter at 8. See also Citadel Interp Letter at 8 (arguing that “every time market prices tick up or down, the NBBO would be incorrect for at least the duration of any intentional delays” which would lead some pegged orders to track at “inaccurate prices”).

    69 NYSE Interp Letter at 8. See also HRT Interp Letter at 3 (citing to a comment from Instinet on IEX's Form 1 that discussed the potential for “spoofing” by entering an order, waiting for 700 microseconds, and cancelling the order without the risk of another market participant seeing or responding to it, but which could provide a false or misleading appearance that could affect the trading of other participants); FIA PTG Interp Letter at 7 (also citing to the Instinet letter).

    The Commission notes that the scenarios discussed by commenters are not related to the issue addressed by this interpretation—whether an intentional delay that is so short as not to frustrate the goals of Rule 611 by interfering with fair and efficient access to an exchange's quotations is consistent with Rule 600(b)(3)'s “immedia[cy]” requirement.70 If a delay is de minimis, then whether it is unintentional or intentional in nature is not expected to alter the potential for manipulative activity or make it harder to detect and prosecute. One commenter noted that it is important “to contemplate and address the potential for abuse” 71 when an access delay is proposed and approved. The Commission agrees that such scrutiny—both by the exchange proposing an access delay, and by the Commission when considering whether to approve a proposed access delay rule—would be important. The Commission notes that, pursuant to Section 19(b) and Rule 19b-4, the proposing exchange would be required to consider and address in its rule change filing the potential for abuse of any proposed access delay, which would then be subject to notice, comment, and Commission review. Further, even after the rule change became effective, the Commission believes it would be incumbent on the exchange to remain vigilant in surveilling for abuses and violative conduct of its access delay rule, and consider amending its access delay if necessary, among other considerations, for the protection of investors and the public interest.72

    70 Nevertheless, the Commission believes that the scenarios discussed by commenters would, as a practical matter, be difficult to implement. For example, in the closing auction scenario, the Commission believes it would be practically difficult to successfully implement a coordinated single-digit microsecond strategy during a broad-based auction because of the precision it would require to ensure order arrival at the final microsecond and not have it trade with a multitude of other interest in the auction. Further, concerns surrounding pegged orders on away markets would affect only the most latency sensitive traders and only apply when the exchange with the access delay is alone at the NBBO, has exhausted all displayed and non-displayed interest at its best price, and is in the process of transitioning to a new price. However, that possibility is not uniquely introduced by an exchange with an access delay, but is currently present in a fragmented market with geographically dispersed venues. For example, the same problem (only exacerbated with considerably more latency) would be present if the Chicago Stock Exchange was alone at the NBBO on a symbol it trades from Chicago.

    71 HRT Interp Letter at 3.

    72See 15 U.S.C. 78s(g)(1).

    III. Commission's Interpretation

    In response to technological and market developments since the adoption of Regulation NMS,73 the Commission believes that it is appropriate to provide an updated interpretation of the meaning of the term “immediate” in Rule 600(b)(3).

    73 A number of factors affect the speed at which a market participant can receive market and quote data, submit orders, obtain an execution, and receive information on trades, including hardware, software, and physical distance. See, e.g., Securities Exchange Act Release No. 61358 (January 14, 2010), 75 FR 3594, 3610-11 (January 21, 2010) (Concept Release on Equity Market Structure). Recent technological advances have reduced the “latency” that these factors introduce into the order handling process, both in absolute and relative terms, and some market participants and liquidity providers have invested in low-latency systems that take into account the advances in technology. See id. at 3606; see also Securities Exchange Act Release No. 76474 (November 18, 2015), 80 FR 80997, 81000 (December 28, 2015) (Regulation of NMS Stock Alternative Trading Systems; Proposed Rule) (stating that “[t]he growth in trading centers and trading activity has been fueled primarily by advances in technology for generating, routing, and executing orders” and that “[t]hese technologies have markedly improved the speed, capacity, and sophistication of the trading mechanisms and processes that are available to market participants”).

    Solely in the context of determining whether a trading center maintains an “automated quotation” for purposes of Rule 611 of Regulation NMS, the Commission does not interpret the term “immediate” used in Rule 600(b)(3) by itself to prohibit a trading center from implementing an intentional access delay that is de minimisi.e., a delay so short as to not frustrate the purposes of Rule 611 by impairing fair and efficient access to an exchange's quotations. Accordingly, the Commission's revised interpretation provides that the term “immediate” precludes any coding of automated systems or other type of intentional device that would delay the action taken with respect to a quotation unless such delay is de minimis.

    The Commission's updated interpretation recognizes that a de minimis access delay, even if it involves an “intentional device” that delays access to an exchange's quotation, is compatible with the exchange having an “automated quotation” under Rule 600(b)(3) and thus a “protected quotation” under Rule 611.74 Under this interpretation, Rule 600(b)(3)'s “immedia[cy]” requirement does not necessarily foreclose an automated trading center's use of very small intentional delays to address concerns arising from low latency trading strategies and other market structure issues. For example, intentional access delays that are well within the geographic and technological latencies experienced by market participants when routing orders are de minimis to the extent they would not impair a market participant's ability to access a displayed quotation consistent with the goals of Rule 611.

    74 An exchange that proposed to provide any member or user (including the exchange's inbound or outbound routing functionality, or the exchange's affiliates) with exclusive privileged faster access to its facilities over any other member or user would raise concerns under the Act, including under Section 6(b)(5) and 6(b)(8) of the Act, and would need to address those concerns in a Form 1 exchange registration application or a proposed rule change submitted pursuant to Section 19 of the Act, as applicable.

    The interpretation does not change the existing requirement that, prior to being implemented, an intentional delay of any duration must be fully disclosed and codified in a written rule of the exchange that has become effective pursuant to Section 19 of the Act, where the exchange met its burden of articulating how the purpose, operation, and application of the delay is consistent with the Act and the rules and regulations thereunder applicable to the exchange.75

    75 As discussed above, any exchange that seeks to impose an intentional access delay must first file a proposed rule change with the Commission, which the Commission would publish for notice and comment, and approve only after finding that it is consistent with the applicable standards set forth in the Act. For example, a proposed access delay that is only imposed on certain market participants or certain types of orders would be scrutinized to determine whether or not the discriminatory application of that delay is unfair. See, e.g., Securities Exchange Act Release No. 77406, 81 FR 15765 (March 24, 2016) (File No. 10-222) (order instituting proceedings on IEX's Form 1) (discussing the potentially unfairly discriminatory application of an access delay to advantage an affiliated outbound routing broker). If the Commission cannot find that a proposed access delay is consistent with the Act, it would disapprove the proposal, rendering moot the issue of whether a quotation with such a delay is protected. Generally, the Commission would be concerned about access delays that were imposed only on certain market participants or intentional access delays that were relieved based upon payment of certain fees.

    In the Notice of Proposed Interpretation, the Commission stated its preliminary belief “that, in the current market, delays of less than a millisecond in quotation response times may be at a de minimis level that would not impair a market participant's ability to access a quote, consistent with the goals of Rule 611 and because such delays are within the geographic and technological latencies experienced by market participants today.” 76 As discussed above, the Commission received a number of comments on that specific guidance.

    76 Notice of Proposed Interpretation, supra note 26, at 15665.

    At this time, the Commission is not adopting the proposed guidance under this interpretation that delays of less than one millisecond are de minimis. The Commission believes that, in light of the evolving nature of technology and the markets, and the need to assess the impact of intentional access delays on the markets, establishing a bright line de minimis threshold is not appropriate at this time. Rather, the Commission believes that the interpretation is best focused on whether an intentional delay is so short as to not frustrate the purposes of Rule 611 by impairing fair and efficient access to an exchange's quotations. As it makes findings as to whether particular access delays are de minimis in the context of individual exchange proposals,77 the Commission recognizes that such findings create common standards that must be applied fairly and consistently to all market participants.

    77See supra note 56 (discussing the proposed rule change process under the Exchange Act). See also IEX Form 1 Approval Order, supra note 4.

    The Staff will also conduct a study within two years regarding the effects of intentional access delays on market quality, including price discovery and report back to the Commission with the results of any recommendations. Based on the results of that study or earlier as it determines, the Commission will reassess whether further action is appropriate.

    List of Subjects in 17 CFR Part 241

    Securities.

    Text of Amendments

    For the reasons set out in the preamble, the Commission is amending Title 17, chapter II, of the Code of Federal Regulations as follows:

    PART 241—INTERPRETATIVE RELEASES RELATING TO THE SECURITIES EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS THEREUNDER

    Part 241 is amended by adding Release No. 34-78102 to the list of interpretative releases as follows:

    Subject Release No. Date Federal
  • Register
  • vol. and page
  • *         *         *         *         *         *         * Interpretation Regarding Automated Quotations Under Regulation NMS 34-78102 June 17, 2016 121 FR [Insert FR Page Number].

    By the Commission.

    Dated: June 17, 2016. Robert W. Errett, Deputy Secretary.
    [FR Doc. 2016-14876 Filed 6-22-16; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM16-1-000; Order No. 827] Reactive Power Requirements for Non-Synchronous Generation AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is eliminating the exemptions for wind generators from the requirement to provide reactive power by revising the pro forma Large Generator Interconnection Agreement (LGIA), Appendix G to the pro forma LGIA, and the pro forma Small Generator Interconnection Agreement (SGIA). As a result, all newly interconnecting non-synchronous generators will be required to provide reactive power at the high-side of the generator substation as a condition of interconnection as set forth in their LGIA or SGIA as of the effective date of this Final Rule.

    DATES:

    This Final Rule will become effective September 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Bak (Technical Information), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6574, [email protected]

    Gretchen Kershaw (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8213, [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents Paragraph I. Background 6 II. Need for Reform 11 III. Discussion 13 A. Reactive Power Requirement for Non-Synchronous Generators 16 1. NOPR Proposal 16 2. Comments 17 3. Commission Determination 21 B. Power Factor Range, Point of Measurement, and Dynamic Reactive Power Capability Requirements 26 1. NOPR Proposal 26 2. Comments 27 3. Commission Determination 34 C. Real Power Output Level 41 1. NOPR Proposal 41 2. Comments 42 3. Commission Determination 47 D. Compensation 50 1. NOPR Proposal 50 2. Comments 51 3. Commission Determination 52 E. Application of the Final Rule 53 1. NOPR Proposal 53 2. Comments 54 3. Commission Determination 59 a. Newly Interconnecting Non-Synchronous Generators 60 b. Upgrades to Existing Non-Synchronous Generators 64 F. Regional Flexibility 68 G. Miscellaneous Comments 70 IV. Compliance and Implementation 74 V. Information Collection Statement 78 VI. Regulatory Flexibility Act Certification 83 VII. Environmental Analysis 86 VIII. Document Availability 87 IX. Effective Date and Congressional Notification 90 Order No. 827 Final Rule

    1. The Federal Energy Regulatory Commission (Commission) is eliminating the exemptions for wind generators from the requirement to provide reactive power by revising the pro forma Large Generator Interconnection Agreement (LGIA), Appendix G to the pro forma LGIA, and the pro forma Small Generator Interconnection Agreement (SGIA). Under this Final Rule, newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of this Final Rule will be required to provide dynamic reactive power within the range of 0.95 leading to 0.95 lagging at the high-side of the generator substation. This Final Rule revises the pro forma LGIA and pro forma SGIA to establish reactive power requirements for non-synchronous generation. Specifically, the pro forma LGIA will include the following (the pro forma SGIA will include similar language): 1

    1 See Section IV of this Final Rule, Compliance and Implementation, for the specific changes to the pro forma LGIA and pro forma SGIA.

    Non-Synchronous Generation. Interconnection Customer shall design the Large Generating Facility to maintain a composite power delivery at continuous rated power output at the high-side of the generator substation at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established a different power factor range that applies to all non-synchronous generators in the Control Area on a comparable basis. This power factor range standard shall be dynamic and can be met using, for example, power electronics designed to supply this level of reactive capability (taking into account any limitations due to voltage level, real power output, etc.) or fixed and switched capacitors, or a combination of the two. This requirement shall only apply to newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of the Final Rule establishing this requirement (Order No. 827).

    2. Section 35.28(f)(1) of the Commission's regulations requires every public utility with an open access transmission tariff (OATT) on file to also have on file the pro forma LGIA and pro forma SGIA “required by Commission rulemaking proceedings promulgating and amending such interconnection procedures and agreements.” 2 As a result of this Final Rule, all newly interconnecting non-synchronous generators will be required to provide reactive power as a condition of interconnection pursuant to the pro forma LGIA and pro forma SGIA. These reactive power requirements will apply to any new non-synchronous generator seeking to interconnect to the transmission system that has not yet executed a Facilities Study Agreement as of the effective date of this Final Rule.

    2 18 CFR 35.28(f)(1) (2015).

    3. The existing pro forma LGIA and pro forma SGIA both require, as a condition of interconnection, an interconnecting generator to design its Generating Facility 3 “to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor 4 within the range of 0.95 leading to 0.95 lagging” 5 (the reactive power requirement).

    3 The pro forma LGIA defines “Generating Facility” as an “Interconnection Customer's device for the production of electricity identified in the Interconnection Request,” excluding the Interconnection Customer's Interconnection Facilities. The pro forma LGIA further defines “Large Generating Facility” as a “Generating Facility having a Generating Facility Capacity of more than 20 MW.” The pro forma SGIA defines “Small Generating Facility” as an “Interconnection Customer's device for the production and/or storage for later injection of electricity identified in the Interconnection Request,” excluding the Interconnection Customer's Interconnection Facilities. For purposes of this Final Rule, unless otherwise noted, “Generating Facility” refers to both a Large Generating Facility and a Small Generating Facility.

    4 The power factor of an alternating current transmission system is the ratio of real power to apparent power. Reliable operation of a transmission system requires system operators to maintain a tight control of voltages (at all points) on the transmission system. The ability to vary the ratio of real power to apparent power (i.e., adjust the power factor) allows system operators to maintain scheduled voltages within allowed for tolerances on the transmission system and maintain the reliability of the transmission system. The Commission established a required power factor range in Order No. 2003 of 0.95 leading to 0.95 lagging, but allowed transmission providers to establish different requirements to be applied on a comparable basis. See Standardization of Generator Interconnection Agreements and Procedures, Order No. 2003, FERC Stats. & Regs. ¶ 31,146, at P 542 (2003), order on reh'g, Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160, order on reh'g, Order No. 2003-B, FERC Stats. & Regs. ¶ 31,171 (2004), order on reh'g, Order No. 2003-C, FERC Stats. & Regs. ¶ 31,190 (2005), aff'd sub nom. Nat'l Ass'n of Regulatory Util. Comm'rs v. FERC, 475 F.3d 1277 (D.C. Cir. 2007), cert. denied, 552 U.S. 1230 (2008).

    5 Section 9.6.1 of the pro forma LGIA and section 1.8.1 of the pro forma SGIA.

    4. As discussed below, however, wind generators have been exempt from the general requirement to provide reactive power absent a study finding that the provision of reactive power is necessary to ensure safety or reliability. The Commission exempted wind generators from the uniform reactive power requirement because, historically, the costs to design and build a wind generator that could provide reactive power were high and could have created an obstacle to the development of wind generation.6 Due to technological advancements, the cost of providing reactive power no longer presents an obstacle to the development of wind generation.7 The resulting decline in the cost to wind generators of providing reactive power renders the current absolute exemptions unjust, unreasonable, and unduly discriminatory and preferential. Further, the growing penetration of wind generators on some systems increases the potential for a deficiency in reactive power.8

    6Interconnection for Wind Energy, Order No. 661, FERC Stats. & Regs. ¶ 31,186, at P 51, order on reh'g, Order No. 661-A, FERC Stats. & Regs. ¶ 31,198 (2005).

    7See, e.g., Payment for Reactive Power, Commission Staff Report, Docket No. AD14-7, app. 2, at 1-3 (Apr. 22, 2014).

    8See, e.g., PJM Interconnection, L.L.C., 151 FERC ¶ 61,097, at P 7 (2015); CAISO Comments at 2-3 (explaining that, in 2014, CAISO had over 11,000 MW of interconnected variable energy resources, the majority of which are non-synchronous generators, but expects to have over 20,000 MW of such resources interconnected by 2024).

    5. Given these changes, the Commission finds under section 206 of the Federal Power Act (FPA) 9 that wind generators should not have an exemption from the reactive power requirement which is unavailable to other generators. While we find that requiring non-synchronous generators to provide dynamic reactive power is now reasonable, we recognize that distinctions between non-synchronous and synchronous generators still exist and that these differences justify requiring non-synchronous generators to provide dynamic reactive power at a different location than synchronous generators: Non-synchronous generators will be required to provide dynamic reactive power at the high-side of the generator substation, as opposed to the Point of Interconnection. The reactive power requirements we adopt here for newly interconnecting non-synchronous generators provide just and reasonable terms, which recognize the technical differences of non-synchronous generators from synchronous generators. These requirements also benefit customers by ensuring that reliability is protected without adding unnecessary obstacles to further development of non-synchronous generators.

    9 16 U.S.C. 824d-e (2012).

    I. Background

    6. Transmission providers require reactive power to control system voltage for efficient and reliable operation of an alternating current transmission system. At times, transmission providers need generators to either supply or consume reactive power. Starting with Order No. 888,10 which included provisions regarding reactive power from generators as an ancillary service in Schedule 2 of the pro forma OATT, the Commission issued a series of orders intended to ensure that sufficient reactive power is available to maintain the reliability of the bulk power system.

    10Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs. ¶ 31,036 (1996), order on reh'g, Order No. 888-A, FERC Stats. & Regs. ¶ 31,048, order on reh'g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh'g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Circuit 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).

    7. Starting with Order No. 2003, the Commission adopted standard procedures and a standard agreement for the interconnection of Large Generating Facilities (the pro forma LGIA), which included the reactive power requirement.11 Under this requirement, large generators must design their Large Generating Facilities to provide 0.95 leading to 0.95 lagging reactive power at the Point of Interconnection. Synchronous generators have met this requirement by providing dynamic reactive power at the Point of Interconnection, utilizing the inherent dynamic reactive power capability of synchronous generators. The Commission recognized in Order No. 2003-A that the pro forma LGIA was “designed around the needs of large synchronous generators and that generators relying on newer technologies may find that either a specific requirement is inapplicable or that it calls for a slightly different approach” because such generators “may have unique electrical characteristics.” 12 Therefore, the Commission exempted wind generators from this reactive power requirement.13

    11 Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at PP 1, 542.

    12 Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160 at P 407 & n.85.

    13Id. Article 9.6.1 of the pro forma LGIA provides: “Interconnection Customer shall design the Large Generating Facility to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging, unless Transmission Provider has established different requirements that apply to all generators in the Control Area on a comparable basis. The requirements of this paragraph shall not apply to wind generators.”

    8. In June 2005, the Commission issued Order No. 661,14 establishing interconnection requirements in Appendix G to the pro forma LGIA for large wind generators.15 Recognizing that, unlike traditional synchronous generators, wind generators had to “install costly equipment” to maintain reactive power capability, the Commission in Order No. 661 preserved the exemption for large wind generators from the reactive power requirement unless the transmission provider shows, through a System Impact Study, that reactive power capability is required to ensure safety or reliability.16 The Commission explained that this qualified exemption from the reactive power requirement for large wind generators would provide certainty to the industry and “remove unnecessary obstacles to the increased growth of wind generation.” 17

    14Interconnection for Wind Energy, Order No. 661, FERC Stats. & Regs. ¶ 31,186, Appendix B (Appendix G—Interconnection Requirements for a Wind Generating Plant), order on reh'g, Order No. 661-A, FERC Stats. & Regs. ¶ 31,198 (2005).

    15Id. P 1.

    16Id. PP 50-51. Appendix G states: “A wind generating plant shall maintain a power factor within the range of 0.95 leading to 0.95 lagging, measured at the Point of Interconnection as defined in this LGIA, if the Transmission Provider's System Impact Study shows that such a requirement is necessary to ensure safety or reliability.”

    17Id. P 50.

    9. In May 2005, the Commission issued Order No. 2006,18 in which it adopted standard procedures and a standard agreement for the interconnection of Small Generating Facilities (pro forma SGIA).19 In Order No. 2006, the Commission completely exempted small wind generators from the reactive power requirement.20 The Commission reasoned that, similar to large wind generators, small wind generators would face increased costs to provide reactive power that could create an obstacle to the development of small wind generators. Additionally, the Commission reasoned that small wind generators would “have minimal impact on the Transmission Provider's electric system” and therefore the reliability requirements for large wind generators that were eventually imposed in Order No. 661 were not needed for small wind generators.21

    18Standardization of Small Generator Interconnection Agreements and Procedures, Order No. 2006, FERC Stats. & Regs. ¶ 31,180, Attachment F (Small Generator Interconnection Agreement), order on reh'g, Order No. 2006-A, FERC Stats. & Regs. ¶ 31,196 (2005), order granting clarification, Order No. 2006-B, FERC Stats. & Regs. ¶ 31,221 (2006).

    19Id. P 1.

    20Id. P 387. Section 1.8.1 of the pro forma SGIA states: “The Interconnection Customer shall design its Small Generating Facility to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established different requirements that apply to all similarly situated generators in the control area on a comparable basis. The requirements of this paragraph shall not apply to wind generators.”

    21Id. P 24.

    10. Since the Commission provided these exemptions from the reactive power requirement for wind generators, the equipment needed for a wind generator to provide reactive power has become more commercially available and less costly, such that the cost of installing equipment that is capable of providing reactive power is comparable to the costs of a traditional generator.22 Recognizing these factors, the Commission recently accepted a proposal by PJM Interconnection, L.L.C. (PJM), effectively removing the wind generator exemptions from the PJM tariff.23 Specifically, the Commission granted PJM an “independent entity variation” from Order No. 661 in accepting PJM's proposal to require interconnection customers seeking to interconnect non-synchronous generators,24 including wind generators, to use “enhanced inverters” with the capability to provide reactive power.25 The Commission observed that, “[a]lthough there are still technical differences between non-synchronous generators [such as wind generators] and traditional generators, with regard to the provision of reactive power, those differences have significantly diminished since the Commission issued Order No. 661.” 26 The Commission agreed with PJM “that the technology has changed both in availability and in cost since the Commission rejected [the California Independent System Operator's] proposal in 2010,” such that “PJM's proposal will not present a barrier to non-synchronous resources.” 27

    22See, e.g., Payment for Reactive Power, Commission Staff Report, Docket No. AD14-7, app. 1, at 6, app. 2, at 4-5 (Apr. 22, 2014).

    23PJM Interconnection, L.L.C., 151 FERC ¶ 61,097 at P 28.

    24 Non-synchronous generators are “connected to the bulk power system through power electronics, but do not produce power at system frequency (60 Hz).” They “do not operate in the same way as traditional generators and respond differently to network disturbances.” Id. P 1 n.3 (citing Order No. 661, FERC Stats. & Regs. ¶ 31,198 at P 3 n.4). Wind and solar photovoltaic generators are two examples of non-synchronous generators.

    25Id. PP 1, 6.

    26Id. P 28.

    27Id.

    II. Need for Reform

    11. Based upon this information, on November 19, 2015, the Commission issued a Proposal to Revise Standard Generator Interconnection Agreements (NOPR) that proposed to eliminate the exemptions for wind generators from the requirement to provide reactive power as contained in the pro forma LGIA, Appendix G to the pro forma LGIA, and the pro forma SGIA.28 In the NOPR, the Commission sought comment on: Whether to remove the exemptions for wind generators from the reactive power requirement; whether the current power factor range of 0.95 leading to 0.95 lagging, as set forth in the existing pro forma LGIA and pro forma SGIA, is reasonable given the technology used by non-synchronous generators; whether newly interconnecting non-synchronous generators should only be required to produce reactive power when the generator's real power output is greater than 10 percent of nameplate capacity; and whether the existing methods used to determine reactive power compensation are appropriate for wind generators and, if not, what alternatives would be appropriate.29

    28Reactive Power Requirements for Non-Synchronous Generation, Notice of Proposed Rulemaking, 80 Fed Reg. 73,683 (Nov. 25, 2015), FERC Stats. & Regs. ¶ 32,712 (2015).

    29Id. P 18.

    12. In response to the NOPR, 24 entities submitted comments,30 most of which generally support the proposed elimination of the exemptions. However, some commenters seek clarification of various issues that fall into six broad categories: (1) Comments regarding where the reactive power requirement should be measured (the Point of Interconnection, the generator terminals, or elsewhere); (2) comments contesting the proposal to require fully dynamic reactive power capability; (3) comments contesting the proposal to require non-synchronous generators to maintain the required power factor range only when the generator's real power output exceeds 10 percent of its nameplate capacity; (4) comments on compensation methods for reactive power; (5) comments seeking clarification as to which non-synchronous resources the Final Rule will apply; and (6) comments on the need for regional flexibility.

    30See Appendix A for a list of entities that submitted comments and the shortened names used throughout this Final Rule to describe those entities.

    III. Discussion

    13. The Commission finds that, given the changes to the cost of providing reactive power by non-synchronous generators, as well as the growing penetration of such generators, the reactive power requirements in the pro forma LGIA and pro forma SGIA are no longer just and reasonable and are unduly discriminatory and preferential and, thus, need to be revised. We have determined in this Final Rule to apply comparable reactive power requirements to non-synchronous generators and synchronous generators. We recognize technological differences between non-synchronous and synchronous generators still remain. Because of the configuration and means of producing power of synchronous generators, these generators provide dynamic reactive power at the Point of Interconnection. Many commenters point out, however, that the advancements in technology do not permit some non-synchronous generators to provide dynamic reactive power at reasonable cost at the Point of Interconnection. Recognizing the differences between the two categories of generation, we have determined to require non-synchronous generators to provide dynamic reactive power at the high-side of the generator substation.31

    31 This measurement point is different from Order No. 2003 requirement, which measures the power factor at the Point of Interconnection. As an example, the generator substation would be the substation for a wind generator that separates the low-voltage collector system from the higher voltage elements of the Interconnection Customer Interconnection Facilities that bring the generator's energy to the Point of Interconnection. Both the pro forma Large Generator Interconnection Procedures and the pro forma Small Generator Interconnection Procedures require interconnecting generators to provide a simplified one-line diagram of the plant and station facilities, which will be appended to the interconnection agreement.

    14. The requirements adopted by this Final Rule are intended to ensure that all generators, both synchronous and non-synchronous, are treated in a not unduly discriminatory or preferential manner, as required by sections 205 and 206 of the FPA, and to ensure sufficient reactive power is available on the bulk power system as more non-synchronous generators seek to interconnect and more synchronous generators retire.

    15. We discuss below the issues raised in the comments.

    A. Reactive Power Requirement for Non-Synchronous Generators 1. NOPR Proposal

    16. In the NOPR, the Commission proposed to eliminate the exemptions for wind generators from the reactive power requirement, and thereby to require that all newly interconnecting non-synchronous generators provide reactive power as a condition of interconnection.32

    32 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 12.

    2. Comments

    17. Most commenters agree that the current exemptions for wind generators from the reactive power requirement are unjust, unreasonable, and unduly discriminatory and preferential due to increases in the number and size of non-synchronous generators, and advances in non-synchronous generator technology.33 Commenters contend that operation and planning of the bulk power system requires adequate levels of voltage support, and that exempting wind generators from the reactive power requirement may inhibit the proper operation of the bulk power system.34 Specifically, commenters assert that non-synchronous generators are increasingly replacing synchronous generators, which is resulting in a decrease in the amount of dynamic reactive power available to the transmission system.35 Commenters also contend that the inverters used by most non-synchronous generators today are manufactured with the inherent capability to produce reactive power.36 Therefore, commenters generally support the Commission's proposal to create comparable reactive power requirements for non-synchronous and synchronous generators.37 While the Public Interest Organizations support the removal of the exemptions for wind generators from the reactive power requirement, they ask that the Commission not impose unduly burdensome requirements on non-synchronous generators.38

    33 EEI Comments at 5; Indicated NYTOs Comments at 2-3; ISO/RTO Council Comments at 4; ISO-NE Comments at 9-10; MISO Comments at 2.

    34 CAISO Comments at 2-5; ISO/RTO Council Comments at 5; ISO-NE Comments at 9; NERC Comments at 5-6; Six Cities Comments at 3-4.

    35 CAISO Comments at 2-3; EEI Comments at 4-5; ITC Comments at 1-2; SCE Comments at 2; SDG&E Comments at 2.

    36 CAISO Comments at 3; ISO/RTO Council Comments at 5; MISO Comments at 2-3; NaturEner Comments at 2; NERC Comments at 9; SCE Comments at 2.

    37 CAISO Comments at 3; EEI Comments at 6-7; EPSA Comments at 3; Idaho Power Comments at 1; Indicated NYTOs Comments at 2; ISO/RTO Council Comments at 4; ISO-NE Comments at 7-8; ITC Comments at 1; Lincoln Comments at 1-2; MISO Comments at 1-2; NEPOOL Initial Comments at 6; SCE Comments at 2; SDG&E Comments at 3.

    38 Public Interest Organizations Comments at 1.

    18. Commenters argue that it is more effective to have a standard reactive power requirement for wind generators than requiring transmission providers to show through a System Impact Study the need for reactive power from an interconnecting wind generator on a case-by-case basis because a System Impact Study may not reflect the future needs of the transmission system.39 CAISO explains that deficiencies in reactive power support may only become apparent when there are high levels of variable energy resources and low demand, or when certain transmission infrastructure or synchronous generators are out of service.40 Because System Impact Studies do not study all conditions, CAISO contends they may not capture these deficiencies before a wind generator interconnects to the transmission system.41 Therefore, CAISO, as well as the ISO/RTO Council, assert that transmission providers may need to remedy deficiencies in reactive power support that were not identified through a System Impact Study through authorization and development of transmission infrastructure upgrades.42

    39 CAISO Comments at 4-5; EEI Comments at 5-6; ISO/RTO Council Comments at 5; ISO-NE Comments at 2.

    40 CAISO Comments at 4.

    41Id.

    42 CAISO Comments at 4; ISO/RTO Council Comments at 5.

    19. Commenters argue that relying on transmission system upgrades after a wind generator interconnects, or relying on more recently interconnected generation resources, to meet reactive power deficiencies may shift the cost of providing reactive power from one interconnection customer to another. Specifically, if a System Impact Study does not show that an earlier interconnecting wind generator needs to provide reactive power, but, as a result of the combination of existing and new wind generators, a System Impact Study for a later interconnecting wind generator does make that showing, the newer interconnecting wind generator would have the entire burden of supplying reactive power instead of sharing equally with the other wind generators creating the need for reactive power.43 Further, commenters assert that requiring transmission providers to show through a System Impact Study the need for reactive power from interconnecting wind generators leads to delays and increased costs in processing interconnection requests.44 Commenters argue that a uniform reactive power requirement for non-synchronous generators may result in reduced costs for wind development by allowing standardization of components and equipment.45 Additionally, ISO-NE argues that the difficulty in demonstrating a need for reactive power through a System Impact Study has resulted in some wind generators not being required to install reactive power equipment and, consequently, not being able to deliver real power during certain system conditions as a result of insufficient reactive power capability.46 According to ISO-NE., this situation has resulted in transmission system operators needing to curtail wind generators as a result of unstudied real-time system characteristics.47

    43 ISO/RTO Council Comments at 5; Union of Concerned Scientists Comments at 4-5.

    44 ISO-NE Comments at 2, 4, 10; NEPOOL Initial Comments at 5.

    45 Indicated NYTOs Comments at 2; Joint NYTOs Comments at 2.

    46 ISO-NE Comments at 5.

    47Id. at 6.

    20. Several independent system operators (ISOs) and regional transmission organizations (RTOs) have been developing new reactive power requirements and procedures to address deficiencies in the current method of requiring transmission providers to show through a System Impact Study that reactive power from an interconnecting wind generator is necessary to ensure safety or reliability.48

    48 CAISO Comments at 1-2; ISO-NE Comments at 6; NEPOOL Initial Comments at 4.

    3. Commission Determination

    21. Based on the comments filed in response to the NOPR, and the record in the PJM and ISO-NE proceedings accepting PJM's and ISO-NE's reactive power requirements for non-synchronous generators,49 the Commission adopts in this Final Rule reactive power requirements for newly interconnecting non-synchronous generators, as discussed in greater detail below. We find the continued exemptions from the reactive power requirement in the pro forma LGIA and the pro forma SGIA for newly interconnecting wind generators to be unjust, unreasonable, and unduly discriminatory and preferential.

    49 On April 15, 2016, after issuing the NOPR and receiving comments, the Commission approved ISO-NE's proposal to eliminate the exemptions for wind generators from the reactive power requirement. ISO New England Inc., 155 FERC ¶ 61,031 (2016). The Commission previously accepted PJM's similar proposal. See PJM Interconnection, L.L.C., 151 FERC ¶ 61,097 (2015).

    22. Non-synchronous generators other than wind generators currently are not exempt from the reactive power requirement in the pro forma LGIA and pro forma SGIA,50 although the Commission has treated other types of non-synchronous generators in the same manner as wind generators on a case-by-case basis.51 We proposed in the NOPR 52 to apply the Final Rule to all non-synchronous generators, and received no adverse comments. This Final Rule will apply to all newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of this Final Rule.

    50 Order Nos. 2003, 661, and 2006 explicitly exempted only wind generators from the reactive power requirement. See Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 106 (“While we are not applying the Final Rule Appendix G to non-wind technologies, we may do this in the future, or take other generic or case-specific actions, if another technology emerges for which a different set of interconnection requirements is necessary.”).

    51See Nevada Power Co., 130 FERC ¶ 61,147, at P 27 (2010) (“[C]onsistent with our requirements for all wind facilities in Order No. 661, the Commission will require based on the facts of this case, that, before Nevada Power may require El Dorado's solar facility to be capable of providing reactive power, Nevada Power must show, through a system impact study, that such a requirement is necessary to ensure the safety or reliability of the grid.”); id. P 24 (“We agree . . . that this is not the appropriate proceeding in which to make a generic determination on whether to extend to solar generators wind power's exemption from the requirement to provide reactive power support.”).

    52E.g., NOPR, FERC Stats. & Regs. ¶ 32,712 at P 17.

    23. Older wind turbine generators consumed reactive power, but, because they did not use inverters like other non-synchronous generators, they lacked the capability to produce and control reactive power without the use of costly equipment.53 Based on technological improvements since the Commission created the exemptions for wind generators, requiring newly interconnecting wind generators to provide reactive power is not the obstacle to the development of wind generation that it was when the Commission issued Order Nos. 2003, 661, and 2006.54 In particular, the wind turbines being installed today are generally Type III and Type IV inverter-based turbines,55 which are capable of producing and controlling dynamic reactive power, which was not the case in 2005 when the Commission exempted wind generators from the reactive power requirement in Order No. 661.56

    53 Order No. 661, FERC Stats. & Regs. ¶ 31,186 at PP 50-51.

    54 As discussed above, in exempting wind generators from the reactive power requirement, the Commission sought to avoid creating an obstacle to the development of wind generation. For example, in Order No. 661, the Commission was concerned with “remov[ing] unnecessary obstacles to the increased growth of wind generation.” Id. P 50.

    55 A Type III wind turbine is a non-synchronous wound-rotor generator that has a three phase AC field applied to the rotor from a partially-rated power-electronics converter. A Type IV wind turbine is an AC generator in which the stator windings are connected to the power system through a fully-rated power-electronics converter. Both Type III and Type IV wind turbines have inherent reactive power capabilities.

    56Id. PP 50-51.

    24. We therefore conclude that improvements in technology, and the corresponding declining costs for newly interconnecting wind generators to provide reactive power, make it unjust, unreasonable, and unduly discriminatory and preferential to exempt such non-synchronous generators from the reactive power requirement when other types of generators are not exempt. Further, requiring all newly interconnecting non-synchronous generators to design their Generating Facilities to maintain the required power factor range ensures they are subject to comparable requirements as other generators.57

    57See, e.g., Sw. Power Pool, Inc., 119 FERC ¶ 61,199, at P 29 (“Providing reactive power within the [standard power factor range] is an obligation of a generator, and is as much an obligation of a generator as, for example, operating in accordance with Good Utility Practice.”), order on reh'g, 121 FERC ¶ 61,196 (2007).

    25. The Commission also is concerned that, as the penetration of non-synchronous generators continues to grow, exempting a class of generators from providing reactive power could create reliability concerns, especially if those generators represent a substantial amount of total generation in a particular region, or if many of the resources that currently provide reactive power are retired from operation. In addition, as noted above, maintaining the exemptions for wind generators places an undue burden on synchronous generators to supply reactive power without a reasonable technological or cost-based distinction between synchronous and non-synchronous generators.58 Therefore, the Commission concludes that the continued exemptions from the reactive power requirement for newly interconnecting wind generators are unjust, unreasonable, and unduly discriminatory and preferential. For these reasons, the Commission revises the pro forma LGIA, Appendix G to the pro forma LGIA, and the pro forma SGIA to eliminate the exemptions for wind generators from the reactive power requirement.59

    58See PJM Interconnection, L.L.C., 151 FERC ¶ 61,097 at P 7; Payment for Reactive Power, Commission Staff Report, Docket No. AD14-7, app. 1 (Apr. 22, 2014).

    59 The Final Rule does not revise any regulatory text. The Final Rule revises the pro forma LGIA and pro forma SGIA in accordance with section 35.28(f)(1) of the Commission's regulations, which provides: “Every public utility that is required to have on file a non-discriminatory open access transmission tariff under this section must amend such tariff by adding the standard interconnection procedures and agreement and the standard small generator interconnection procedures and agreement required by Commission rulemaking proceedings promulgating and amending such interconnection procedures and agreements, or such other interconnection procedures and agreements as may be required by Commission rulemaking proceedings promulgating and amending the standard interconnection procedures and agreement and the standard small generator interconnection procedures and agreement.” 18 CFR 35.28(f)(1) (2015). See Integration of Variable Energy Resources, Order No. 764, FERC Stats. & Regs. ¶ 31,331, at PP 343-345 (adopting this regulatory text effective September 11, 2012), order on reh'g and clarification, Order No. 764-A, 141 FERC ¶ 61,232 (2012), order on clarification and reh'g, Order No. 764-B, 144 FERC ¶ 61,222 (2013). While not revising regulatory text, the Commission is using the process provided for rulemaking proceedings, as defined in 5 U.S.C. 551(4)-(5) (2012).

    B. Power Factor Range, Point of Measurement, and Dynamic Reactive Power Capability Requirements 1. NOPR Proposal

    26. The Commission proposed in the NOPR as part of the reactive power requirements for non-synchronous generators to require all newly interconnecting non-synchronous generators to design their Generating Facilities to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging.60 Further, the Commission proposed to require that the reactive power capability installed by non-synchronous generators be dynamic.61

    60 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 16.

    61Id. P 14.

    2. Comments

    27. Several commenters support the Commission's proposal to measure the reactive power requirement at the Point of Interconnection.62 Commenters note that measuring the reactive power requirement at the Point of Interconnection is consistent with the current requirement in the pro forma LGIA for measuring the reactive power requirement where a transmission provider's System Impact Study shows the need for reactive power from an interconnecting wind generator.63 Midwest Energy argues that transmission providers are only concerned with power factor and voltage at the Point of Interconnection.64 CAISO asserts that measuring the reactive power requirement at the Point of Interconnection gives interconnection customers flexibility in how they design their generator projects to meet the reactive power requirement.65 CAISO states that inverter manufacturers informed CAISO that current inverters used by most non-synchronous generators are capable of producing 0.95 leading and 0.95 lagging reactive power at full real power output at the generator's Point of Interconnection.66 NextEra acknowledges that the common approach within ISOs/RTOs is to measure reactive power at the Point of Interconnection, but suggests that if reactive power is measured at the Point of Interconnection, then the Commission should maintain the flexibility for non-synchronous generators to meet that requirement using static reactive power devices if agreed to by the transmission provider, as provided for in Appendix G to the pro forma LGIA.67 NaturEner asserts that, depending on the length of the collector system, transformer substation characteristics, and the length of the Interconnection Customer Interconnection Facilities from the generator terminals to the Point of Interconnection, it may not be possible for non-synchronous generators to meet the 0.95 leading to 0.95 lagging reactive power requirement at the Point of Interconnection without installing additional equipment.68

    62 CAISO Comments at 6; EEI Comments at 8; Indicated NYTOs Comments at 4; Midwest Energy Comments at 9; NERC Comments at 9.

    63 CAISO Comments at 6; EEI Comments at 7.

    64 Midwest Energy Comments at 9.

    65 CAISO Comments at 6.

    66Id. at 3.

    67 NextEra Comments at 10-11.

    68 NaturEner Comments at 3.

    28. On the other hand, some commenters disagree with the NOPR proposal and argue that the reactive power requirement should be measured at the generator terminals rather than at the Point of Interconnection for non-synchronous generators. They assert that measuring at the Point of Interconnection would result in significantly higher costs for non-synchronous generators than measuring at the generator terminals. They also argue that, because of the often significant distance between non-synchronous generator terminals and the Point of Interconnection, measuring the reactive power requirement for non-synchronous generators at the generator terminals would result in a reactive power requirement that is comparable to measuring at the Point of Interconnection for synchronous generators.69 AWEA and LSA contend that synchronous and non-synchronous generators are not similarly situated due to the fact that non-synchronous generators are typically located geographically and electrically farther from the Point of Interconnection than synchronous generators.70 Therefore, AWEA and LSA request that non-synchronous generators have the option to meet the reactive power requirement at the generator terminals, even if the requirement at that point is more stringent (e.g., 0.95 leading to 0.90 lagging) than at the Point of Interconnection.71 AWEA and LSA note that they supported the independent entity variation from Order No. 661 in PJM in part because the reactive power requirement is measured at the generator terminals.72

    69 AWEA and LSA Comments at 12; Joint NYTOs Comments at 3-4; Public Interest Organizations Comments at 2; Union of Concerned Scientists Comments at 3.

    70 AWEA and LSA Comments at 12.

    71Id. at 10, 12-13.

    72Id. at 10-11.

    29. Some commenters argue that, due to the configuration of typical non-synchronous generators, additional investment is required to supplement the inherent dynamic reactive power capability of the generators to meet the reactive power requirement at the Point of Interconnection; therefore, they assert that requiring measurement at the Point of Interconnection would reset the costs for non-synchronous generators to a level higher than that which the Commission considered in approving PJM's independent entity variation.73 In addition to equipment investment, AWEA and LSA contend that, in many situations, providing excess reactive power at the generator terminals to meet the reactive power requirement at the Point of Interconnection would result in a large decrease in real power output, and accompanying lost opportunity costs and lost zero-emission, zero-fuel cost energy.74 Similarly, NaturEner argues that the proposed power factor range of 0.95 leading to 0.95 lagging is only reasonable if the reactive power requirement is measured at the generator terminals.75 NaturEner contends that measuring the reactive power requirement at the generator terminals will result in sufficient voltage control at the Point of Interconnection.76 Alternatively, NaturEner also suggests that it would be reasonable to require a power factor range of 0.95 leading to 0.95 lagging at the generator substation.77 Finally, NaturEner argues that any additional reactive power needs could be determined in a System Impact Study.78

    73 AWEA and LSA Comments at 10-12; NextEra Comments at 9; Union of Concerned Scientists Comments at 3-4.

    74 AWEA and LSA Comments at 11.

    75 NaturEner Comments at 3.

    76Id. at 3-4.

    77Id. at 3.

    78Id. at 4; see also Midwest Energy Comments at 10.

    30. While CAISO allows synchronous generators to provide reactive power at the generator terminals, CAISO does not support providing this option to non-synchronous generators. CAISO argues that measuring the reactive power requirement at the generator terminals is inappropriate for non-synchronous generators because non-synchronous generators often use multiple transformers, collection circuits, and substations to transmit real power across lengthy Interconnection Customer Interconnection Facilities from the generator terminal to the Point of Interconnection, reducing the amount of reactive power that reaches the transmission system. In contrast, CAISO explains that the configuration of synchronous generators typically involves a single transformer and short Interconnection Customer Interconnection Facilities from the generator terminal to the Point of Interconnection, making measuring the reactive power requirement at the generator terminals for synchronous generators appropriate for ensuring that sufficient reactive power is provided to the transmission system.79

    79 CAISO Comments at 6-7.

    31. As to the Commission's proposal to require fully dynamic reactive power capability, commenters in support argue that requiring dynamic reactive power capability allows generators to operate across a broader range of operating conditions than allowing static reactive power devices.80 ISO-NE asserts that requiring fully dynamic reactive power capability is consistent with the historic requirement that synchronous generators provide dynamic reactive power.81 ISO-NE contends that generators are more effective at providing dynamic reactive power compared to transmission infrastructure.82

    80 EEI Comments at 8; ISO-NE Comments at 8.

    81 ISO-NE Comments at 8.

    82Id. at 9.

    32. Conversely, other commenters disagree with the proposal to require fully dynamic reactive power capability. SDG&E contends that such a requirement is not necessary and that allowing non-synchronous generators to use static reactive power devices to meet the reactive power requirement will provide flexibility to generator developers and keep costs at a reasonable level.83 SDG&E suggests that the dynamic reactive power capability requirement only be for 0.985 leading to 0.985 lagging reactive power capability.84 Other commenters assert that the existing pro forma LGIA and pro forma SGIA neither define “dynamic” reactive power capability, nor specify a mix of static versus dynamic reactive power capability that a generator must maintain, and that the Commission should not specify such a mix in this proceeding.85 Rather, AWEA and LSA argue that it would be discriminatory to require non-synchronous generators to maintain fully dynamic reactive power capability because their configuration results in significant loss of dynamic reactive power from the generator terminal to the Point of Interconnection. Instead, AWEA and LSA argue that static reactive power devices are necessary and effective to supplement the dynamic reactive power capability of the generator to provide reactive power at the Point of Interconnection.86

    83 SDG&E Comments at 3-4.

    84Id. at 4.

    85 AWEA and LSA Comments at 8; EEI Comments at 8; Midwest Energy Comments at 5; NextEra Comments at 6.

    86 AWEA and LSA Comments at 9; see also Midwest Energy Comments at 6.

    33. NextEra argues that if the proposed reactive power requirement is for fully dynamic reactive power capability, then measuring the requirement at the generator terminals for non-synchronous generators is required to ensure comparable treatment to synchronous generators.87 NextEra contends that the cost of providing reactive power is manageable at the Point of Interconnection if the flexibility provided in section 9.6.1 of the pro forma LGIA is maintained and the reactive power requirement can be met with static reactive power devices, but that the requirement could be cost-prohibitive if non-synchronous generators are required to install dynamic reactive power devices.88 Commenters request that the Commission clarify that it did not intend to specify that a non-synchronous generator must meet the reactive power requirement with only dynamic reactive power capability.89 Specifically, NextEra argues that the Commission should not remove paragraph A.ii of Appendix G to the pro forma LGIA because it provides important provisions regarding the types of devices that can be used to meet the reactive power requirement.90

    87 NextEra Comments at 9-10.

    88Id. at 9; NextEra Supplemental Comments at 4.

    89 AWEA and LSA Comments at 9; Midwest Energy Comments at 6; NextEra Comments at 7.

    90 NextEra Comments at 8.

    3. Commission Determination

    34. We will require the reactive power requirements in the pro forma LGIA and pro forma SGIA for non-synchronous generators to be measured at the high-side of the generator substation. Newly interconnecting non-synchronous generators will be required to design their Generating Facilities to maintain a composite power delivery at continuous rated power output at the high-side of the generator substation. At that point, the non-synchronous generator must provide dynamic reactive power within the power factor range of 0.95 leading to 0.95 lagging, unless the transmission provider has established a different power factor range that applies to all non-synchronous generators in the transmission provider's control area on a comparable basis.91 To ensure there is no undue discrimination, we clarify that the ability of a transmission provider to establish different requirements is limited to establishing a different power factor range, and not to the other reactive power requirements.

    91 Under these provisions, transmission providers may establish a different power factor range for synchronous or non-synchronous generators as long as the requirement applies to all generators in each class on a comparable basis. See Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at P 542 (“We adopt the power factor requirement of 0.95 leading to 0.95 lagging because it is a common practice in some NERC regions. If a Transmission Provider wants to adopt a different power factor requirement, Final Rule LGIA Article 9.6.1 permits it to do so as long as the power factor requirement applies to all generators on a comparable basis.”).

    35. Non-synchronous generators may meet the dynamic reactive power requirement by utilizing a combination of the inherent dynamic reactive power capability of the inverter, dynamic reactive power devices (e.g., Static VAR Compensators), and static reactive power devices (e.g., capacitors) to make up for losses. In developing this reactive power requirement for non-synchronous generators, the Commission is balancing the costs to newly-interconnecting non-synchronous generators of providing reactive power with the benefits to the transmission system of having another source of reactive power.

    36. Although the Commission in the NOPR considered measuring the reactive power requirements for non-synchronous generators at the Point of Interconnection, we are persuaded by commenters' arguments that requiring fully dynamic reactive power capability at the Point of Interconnection may result in significantly increased costs for non-synchronous generators in meeting the reactive power requirements.92 These added costs will ultimately be borne by customers, whether through reactive power payments in regions that compensate for reactive power capability, or through elevated prices for capacity or energy in regions that do not compensate for reactive power capability. In contrast, measuring the reactive power requirements at the high-side of the generator substation, rather than at the Point of Interconnection, will be less expensive for non-synchronous generators because a greater amount of the inherent dynamic reactive power capability of the inverters associated with non-synchronous generators will be available at the high-side of the generator substation than at the Point of Interconnection.

    92See, e.g., NaturEner Comments at 3 (“Based on the above technological and cost-based reasons, NaturEner believes the +/- 0.95 requirement is reasonable if the Proposed Rule is refined to measure the requirement at the wind turbine terminals (or as an alternative at the wind farm substation), and not at the Point of Interconnection.”).

    37. In adopting the Point of Interconnection as the point of measurement for large wind plants in Order No. 661, the Commission balanced the case-by-case reactive power requirement with the needs of the transmission system.93 Here, we remove the case-by-case approach, and require that all newly interconnecting non-synchronous generators provide reactive power as a condition of interconnection. By requiring all newly interconnecting non-synchronous generators to provide reactive power, we are increasing the amount of reactive power available to meet transmission system needs, and, at the same time, balancing the costs to non-synchronous generators of providing that reactive power by measuring the requirements at the high-side of the generator substation.

    93 Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 59.

    38. Similarly, in Order No. 661, the Commission was not convinced that dynamic reactive power capability was needed from every wind generator, and so adopted the case-by-case approach.94 However, with the increasing penetration of wind generation and retirement of traditional synchronous generators, which provided dynamic reactive power capability to the transmission system, we now find it is necessary to require dynamic reactive power capability from all new generators. The dynamic reactive power capability may be achieved at the high-side of the generator substation at lower cost compared to dynamic reactive power at the Point of Interconnection by systems using a combination of dynamic capability from the inverters plus static reactive power devices to make up for losses. Therefore, this Final Rule gives non-synchronous generators the flexibility to use static reactive power devices to make up for losses that occur between the inverters and the high-side of the generator substation, so long as the generators maintain 0.95 leading to 0.95 lagging dynamic reactive power capability at the high-side of the generator substation.

    94Id. P 66.

    39. While measuring the reactive power requirements at the Point of Interconnection would provide the greatest amount of reactive power to the transmission system, the costs associated with providing that level of reactive power do not justify the added benefit to the transmission system.95 In fact, one of the reasons for undertaking this rulemaking proceeding was the Commission recognized that the cost of providing reactive power may no longer present an obstacle to the development of wind generation. On the other hand, measuring the reactive power requirements at the Generating Facilities would likely result in very little reactive power being provided to the transmission system but would be relatively inexpensive to implement for the non-synchronous generator. The high-side of the generator substation represents a middle ground. It is located beyond the low voltage collector systems where significant reactive power losses occur, resulting in more reactive power provided to the transmission system than a requirement at the Generating Facilities, while being less expensive to implement than a requirement at the Point of Interconnection. We find that measuring the reactive power requirements at the high-side of the generator substation reasonably balances the need for reactive power for the transmission system with the costs to non-synchronous generators of providing reactive power.

    95See ISO New England Inc., Tariff Filing, Transmittal Letter, Docket No. ER16-946-000, at 17 (filed Feb. 16, 2016) (“[T]he proposed requirements provide for the reactive capability to be measured at the high-side of the station transformer rather than at the Point of Interconnection to account for the long generator leads through which many wind generators are interconnecting to the New England system—as long as approximately 50-80 miles between the generator collector transformer and the Point of Interconnection. There is no benefit to the generator, and little benefit to the system, to force the generator to provide voltage support all the way to a Point of Interconnection that is very remote, and it is not necessarily even achievable to effectively transfer such quantities of reactive power over such distances.”); see also NextEra Supplemental Comments at 3-4.

    40. We find establishing dynamic reactive power requirements at the high-side of the generator substation preferable to the suggestion in the comments that, at relative equal cost, reactive power could be provided at the Point of Interconnection as long as the inherent dynamic reactive power produced by the generator can be enhanced with static reactive power capability. By establishing dynamic reactive power requirements at the high-side of the generator substation, non-synchronous generators will be able to provide faster responding and more continuously variable reactive power capability than if they provide static reactive power capability at the Point of Interconnection. In addition, requiring dynamic reactive power capability allows generators to operate across a broader range of operating conditions than allowing static reactive power enhancements.96

    96 EEI Comments at 8; ISO-NE Comments at 8; see also ISO New England Inc., Tariff Filing, Transmittal Letter, Docket No. ER16-946-000, at 19 (filed Feb. 16, 2016) (“[I]n New England's experience, the implementation of the reactive power exemption has disadvantaged wind generators seeking to interconnect, putting burdens on the study process not experienced for conventional generators and compromising their ability to operate through various system conditions once interconnected, a situation that leads system operators to curtail wind farm output for system reliability reasons.”).

    C. Real Power Output Level 1. NOPR Proposal

    41. The NOPR proposed to require newly interconnecting non-synchronous generators to design their Generating Facilities to maintain the required power factor range only when the generator's real power output exceeds 10 percent of its nameplate capacity.97 The proposed pro forma LGIA would state: “Non-synchronous generators shall only be required to maintain the above power factor when their output is above 10 percent of the Generating Facility Capacity.” 98 The Commission stated its understanding that the inverters used by non-synchronous generators were not capable of producing reactive power when operating below 10 percent of nameplate capacity.99

    97 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 15 (citing Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 46).

    98Id. P 16. The Commission proposed similar revisions to the pro forma SGIA: “Non-synchronous generators shall only be required to maintain the above power factor when their output is above 10 percent of the generator nameplate capacity.” Id.

    99Id. P 15 (citing Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 46).

    2. Comments

    42. Several commenters support the 10 percent exemption given current inverter technology.100 EEI notes that the Commission uses both “generator nameplate capacity” and “Generator Facility Capacity” in reference to the 10 percent exemption, and requests that the Commission clarify that the correct term is “Generator Facility Capacity.” 101 The ISO/RTO Council states that its ISO/RTO members do not uniformly agree that the 10 percent exemption is appropriate and want to be able to establish rules based on their individual situations.102 Similarly, the Indicated NYTOs support the Commission allowing regional variation on the 10 percent exemption within a reasonable range based on existing regional requirements (up to an exemption for below 25 percent real power output).103

    100 EEI Comments at 9; NaturEner Comments at 4; NERC Comments at 10; SCE Comments at 3; NextEra Comments at 11.

    101 EEI Comments at 9-10.

    102 ISO/RTO Council Comments at 3.

    103 Indicated NYTOs Comments at 4.

    43. AWEA and LSA and the Joint NYTOs argue that the 10 percent exemption should be increased to 25 percent, consistent with what the Commission approved in PJM.104 AWEA and LSA assert that the ability of non-synchronous generators to provide reactive power can be reduced when individual generators within the plant are not producing real power, such that the 10 percent operating threshold is insufficient.105

    104 AWEA and LSA Comments at 13; Joint NYTOs Comments at 3.

    105 AWEA and LSA Comments at 13.

    44. Other commenters oppose the 10 percent exemption, arguing that it is not necessary given the technology available to non-synchronous generators.106 These commenters contend that some inverters can produce reactive power at zero real power output.107 Additionally, ISO-NE argues that requiring non-synchronous generators to be capable of providing reactive power at all output levels will further technological development and advancement.108 ISO-NE asserts that if the Commission adopts the 10 percent exemption, it should limit the exemption to only wind generators because non-synchronous generators other than wind generators have not had an exemption from the reactive power requirement and it is inappropriate to create a new exemption for these generators.109

    106 ISO-NE Comments at 13; Midwest Energy Comments at 9; MISO Comments at 3.

    107 ISO-NE Comments at 14; NaturEner Comments at 4.

    108 ISO-NE Comments at 14.

    109Id. at 14-15.

    45. MISO requests that non-synchronous generators be required to produce reactive power at low and zero-voltage conditions to ensure the robustness of the transmission system.110 Similarly, Midwest Energy argues that the Commission has not fully considered the high levels of reactive power generated by lightly loaded interconnection facilities associated with non-synchronous generators.111 Midwest Energy explains that its largest events of excess reactive power production have occurred when non-synchronous generators are producing less than 10 percent of their nameplate capacity. Midwest Energy asserts that it may be necessary for non-synchronous generators to install static inductors to absorb reactive power in these situations. Therefore, according to Midwest Energy, requiring non-synchronous generators to provide reactive power at all levels of real power output would prevent potential high voltage reliability concerns.112

    110 MISO Comments at 3.

    111 Midwest Energy Comments at 2-3.

    112Id. at 8.

    46. AWEA and LSA request clarification regarding the proposal in the NOPR that non-synchronous generators be required to maintain a “composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging.” 113 AWEA and LSA argue that this language can be interpreted as either requiring non-synchronous generators to provide reactive power proportionate to the actual output of the generator, or to provide reactive power within the full power factor range based on the maximum output of the generator no matter the actual output of the generator.114 AWEA and LSA contend that the first interpretation—a reactive power requirement proportionate to actual output—is the most reasonable interpretation.115 NERC asserts that the second interpretation is correct.116

    113 AWEA and LSA Comments at 5; NOPR, FERC Stats. & Regs. ¶ 32,712 at P 16.

    114 AWEA and LSA Comments at 5-7 (explaining that the first interpretation will result in a triangular PQ curve, while the latter will result in a rectangular PQ curve); see also NERC Comments at 9.

    115 AWEA and LSA Comments at 6.

    116 NERC Comments at 9.

    3. Commission Determination

    47. We will not adopt the 10 percent exemption proposed in the NOPR in this Final Rule and will instead require all newly interconnecting non-synchronous generators to design their Generating Facilities to meet the reactive power requirements at all levels of real power output, as is already required of synchronous generators.117 Although several commenters support the 10 percent exemption,118 and some commenters support increasing that threshold to 25 percent,119 we find, on balance, that requiring non-synchronous generators to provide reactive power at all levels of real power output appropriately recognizes the capabilities of existing non-synchronous generation technologies and creates requirements that are comparable to the existing requirement for synchronous generators. Additionally, by maintaining the reactive power requirement at all output levels, non-synchronous generators will mitigate potential over-voltage concerns on lightly loaded Interconnection Customer Interconnection Facilities of a non-synchronous generator when operating at low real power output.

    117 Section 9.6.1 of the pro forma LGIA and section 1.8.1 of the pro forma SGIA.

    118 EEI Comments at 9; NaturEner Comments at 4; NERC Comments at 10; SCE Comments at 3; NextEra Comments at 11.

    119 AWEA and LSA Comments at 13; Joint NYTOs Comments at 3.

    48. While some commenters argue that technical limitations exist that prevent non-synchronous generators from providing adequate reactive power at lower levels of real power output, and note that the Commission approved a 25 percent exemption in PJM, several commenters indicate that non-synchronous generators are capable of providing reactive power at all levels of real power output.120 Although the Commission approved a 25 percent exemption in PJM, that was pursuant to a section 205 filing with broad stakeholder support. We now act on a more comprehensive record and take action generically to apply to all transmission providers.121 Moreover, while not all non-synchronous generators are currently designed to maintain reactive power capability at all levels of real power output, modern inverters can be designed to provide this capability. We agree with ISO-NE's comments that imposing this requirement will help encourage further technological development, such that the bulk power system will ultimately receive higher quality and more reliable reactive power service from all generators.

    120 ISO-NE Comments at 13; Midwest Energy Comments at 9; MISO Comments at 3.

    121 As discussed below, to the extent an ISO or RTO seeks to maintain an existing exemption, it can include such a request in its compliance filing as an independent entity variation and the Commission will consider the request at that time based on the arguments provided.

    49. As for AWEA and LSA's and NERC's requested clarifications, we clarify that the amount of reactive power required from non-synchronous generators should be proportionate to the actual output of the generator, such that a 100 MW generator would be required to provide approximately 33 MVAR of reactive power when operating at maximum output (100 MW), and approximately 3.3 MVAR when operating at 10 MW, and so on. This addresses some commenters' concerns that sometimes not all non-synchronous generators at a particular location are operating at a given time (e.g., only 50 of 100 wind turbines are actually spinning or 1/3 of solar panels are covered by clouds), without creating an unnecessary exemption for non-synchronous generators.

    D. Compensation 1. NOPR Proposal

    50. The Commission stated in the NOPR that non-synchronous generators are eligible for the same payments for reactive power as all other generators, consistent with the compensation provisions of the pro forma LGIA and pro forma SGIA.122 The Commission proposed that any compensation for such non-synchronous generators would be based on the cost of providing reactive power, but noted that the cost to a wind generator of providing reactive power may not be easily estimated using existing methods that are applied to synchronous generators.123 Therefore, the Commission sought comment on whether these existing methods are appropriate for wind generators and, if not, what alternatives would be appropriate.124

    122 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 12 (citing Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160 at P 416); see also sections 9.6.3 and 11.6 of the pro forma LGIA and sections 1.8.2 and 1.8.3 of the pro forma SGIA.

    123 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 12 (citing Payment for Reactive Power, Commission Staff Report, Docket No. AD14-7, app. 2 (Apr. 22, 2014)).

    124Id. P 18 (citation omitted).

    2. Comments

    51. Several commenters support the Commission's proposal to require transmission providers to compensate non-synchronous generators for reactive power on a comparable basis as synchronous generators, provided that non-synchronous generators provide comparable reactive power service.125 Other commenters seek clarification, or ask that the Commission outline principles for compensation.126 Other commenters argue that the Commission should not mandate a uniform approach to reactive power compensation.127 Finally, while some commenters ask that the Commission address the issue of reactive power compensation, they assert that addressing reactive power compensation in this rulemaking is outside the scope of the proceeding.128

    125 CAISO Comments at 9; EEI Comments at 10; ISO/RTO Council Comments at 7; MISO Comments at 3-4.

    126 ISO/RTO Council Comments at 7; SDG&E Comments at 4-5; AWEA and LSA Comments at 2-5; Public Interest Organizations Comments at 2-3; NextEra Comments at 14.

    127 Indicated NYTOs Comments at 4; ISO/RTO Council Comments at 7; SDG&E Comments at 4; CAISO Comments at 8-9; Joint NYTOs Comments at 4; SCE Comments at 3; Six Cities Comments at 2, 5-6.

    128 EPSA Comments at 6; NextEra Comments at 14.

    3. Commission Determination

    52. We will not change the Commission's existing policies on compensation for reactive power. Sections 9.6.3 and 11.6 of the currently-effective pro forma LGIA and sections 1.8.2 and 1.8.3 of the currently-effective pro forma SGIA provide that the transmission provider must compensate the interconnecting generator for reactive power service when the transmission provider requests that the interconnecting generator operate outside of the specified reactive power range. These sections also provide that if the transmission provider compensates its own or affiliated generators for reactive power service within the specified reactive power range, it must compensate all generators for this service, and at what rate such compensation should be provided. While the Commission asked for comments on principles for compensating non-synchronous generators for reactive power, the comments, aside from noting that the current AEP methodology 129 does not translate to non-synchronous generation, did not provide a sufficient record for determining a new method. Therefore, any non-synchronous generator seeking reactive power compensation would need to propose a method for calculating that compensation as part of its filing. We note, however, that Commission staff is convening a workshop to explore reactive power compensation issues in the markets operated by ISOs/RTOs on June 30, 2016.130

    129See Am. Elec. Power Serv. Corp., Opinion No. 440, 88 FERC ¶ 61,141, at 61,456-57 (1999).

    130See Reactive Supply Compensation in Markets Operated by Regional Transmission Organizations and Independent System Operators, Notice of Workshop, Docket No. AD16-17-000 (issued Mar. 17, 2016).

    E. Application of the Final Rule 1. NOPR Proposal

    53. As a transition mechanism, the Commission proposed in the NOPR to apply the reactive power requirements in this Final Rule to all newly interconnecting non-synchronous generators that, as of the effective date of this Final Rule, either: (1) Have not executed an interconnection agreement; or (2) requested that an interconnection agreement be filed unexecuted that is still pending before the Commission. The Commission also proposed to apply the reactive power requirements to all existing non-synchronous generators making upgrades that require new interconnection requests after the effective date of the Final Rule. The Commission stated that it did not believe it would be reasonable or necessary to require all existing wind generators to provide reactive power because not all such generators are capable of providing reactive power without incurring substantial costs to install new equipment. However, the Commission proposed to require existing wind generators that make upgrades that require new interconnection requests to conform to the new reactive power requirements.131

    131 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 17.

    2. Comments

    54. CAISO and MISO support the Commission's proposed application of the new reactive power requirements to new and existing non-synchronous generators.132 CAISO contends that interconnection customers should be required to adhere to the conditions of interconnection at the time they execute an interconnection agreement. CAISO states that, in its own reactive power stakeholder initiative, it proposed to apply a new reactive power requirement to its April 2016 interconnection queue cluster and to all future clusters. CAISO explains that, depending on the timing of the Final Rule, the new reactive power requirements would apply to this same group of interconnecting generators because they will not execute their interconnection agreements for at least one year after the study process begins. CAISO states that applying reactive power requirements to these interconnecting generators would ensure these generators do not lean on existing generators to provide reactive power.133

    132 CAISO Comments at 5-6; MISO Comments at 5-6.

    133 CAISO Comments at 5-6.

    55. In contrast, some commenters argue that the Commission should not apply the new reactive power requirements to generators that have begun or have already received their System Impact Study, depending on the requirements of the Final Rule.134 AWEA and LSA contend that applying the proposed reactive power requirements to non-synchronous generators that have begun their System Impact Study, or that have been in the interconnection queue for some period of time without starting their System Impact Study, may result in sizable costs and fundamental unfairness. AWEA and LSA argue that such non-synchronous generators may not have been designed to meet the new reactive power requirements and, therefore, may incur substantial equipment costs to meet those requirements.135

    134 AWEA and LSA Comments at 14; NextEra Comments at 13.

    135 AWEA and LSA Comments at 14-15.

    56. NextEra argues that the proposed application of the Final Rule to non-synchronous generators that have not yet executed an interconnection agreement is unreasonable if the Commission requires fully dynamic reactive power capability measured at the Point of Interconnection.136 NextEra asserts that requiring fully dynamic reactive power capability at the Point of Interconnection would be a significant change to the status quo and would render some investments made by non-synchronous generators that have already received the results of their System Impact Study, but have not yet executed an interconnection agreement, useless. According to NextEra, such a major shift could also impose delays and additional costs related to the redesign, purchase, and installation of additional equipment.137 NextEra contends that if the Commission allows for the use of static reactive power devices to supplement the dynamic reactive power capability of non-synchronous generators at the Point of Interconnection, the Commission would merely be formalizing what is already common practice, and, therefore, that the proposed application of the Final Rule would be reasonable. However, if the Commission requires fully dynamic reactive power capability at the Point of Interconnection, NextEra asks that the Final Rule not apply to non-synchronous generators that have received their System Impact Study.138

    136 NextEra Comments at 11.

    137Id. at 12-13.

    138Id. at 12.

    57. Some commenters also oppose the Commission's proposal to apply the reactive power requirements to existing non-synchronous generators making upgrades that require new interconnection requests.139 AWEA and LSA assert that most upgrades do not involve fundamental changes to the original technology, or to the hardware, but instead simply involve software upgrades.140 Lincoln argues that applying the new reactive power requirements to wind generators making upgrades could result in financial detriment to entities that have previously entered into binding contracts to purchase wind generation by exposing those entities to unforeseen expenses not contemplated when they entered into the contracts.141 AWEA and LSA request that the new reactive power requirements only apply to upgrades on a case-by-case basis, depending on the outcome of the relevant interconnection study, and only to the incremental capacity requested through the upgrade.142 AWEA and LSA also request that the Commission clarify what constitutes a “Material change” to a generator that would trigger a new interconnection study.143

    139 AWEA and LSA Comments at 14; Lincoln Comments at 2.

    140 AWEA and LSA Comments at 14.

    141 Lincoln Comments at 2.

    142 AWEA and LSA Comments at 14-15.

    143Id. at 15.

    58. SDG&E requests that the Commission clarify that the proposed reactive power requirements would apply to all non-synchronous generators and not to just wind generators.144

    144 SDG&E Comments at 1, 3.

    3. Commission Determination

    59. We will apply the requirements of this Final Rule to all newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement 145 as of the effective date of this Final Rule. We will not apply the requirements of this Final Rule to existing non-synchronous generators making upgrades to their Generating Facilities that require new interconnection requests. However, such a generator may be required to provide reactive power if a transmission provider determines through that generator's System Impact Study that a reactive power requirement is necessary to ensure safety or reliability. The transition mechanism we establish in this Final Rule allows non-synchronous generators currently in the process of interconnecting to complete the interconnection process without unreasonable delay or expense.

    145 The pro forma Large Generator Interconnection Procedures contain a standard “Interconnection Facilities Study Agreement” as Appendix 4. Similarly, the pro forma Small Generator Interconnection Procedures contain a standard “Facilities Study Agreement” as Attachment 8.

    a. Newly Interconnecting Non-Synchronous Generators

    60. While the Commission proposed in the NOPR to apply the requirements of the Final Rule to all newly interconnecting non-synchronous generators that have not yet executed an interconnection agreement as of the effective date of the Final Rule, or requested that one be filed unexecuted that is still pending, we agree with AWEA and LSA, and NextEra,146 that applying the Final Rule as proposed may unduly burden non-synchronous generators that have completed their System Impact Study. Such non-synchronous generators may have already purchased equipment needed to interconnect prior to executing an interconnection agreement (or requesting that one be filed unexecuted that is still pending).147 We are especially concerned with applying new reactive power requirements to non-synchronous generators that have advanced in the interconnection process in light of our decision to measure the reactive power requirements at the high-side of the generator substation, rather than at the Point of Interconnection. Because the Point of Interconnection has been the industry standard under Appendix G to the pro forma LGIA, non-synchronous generators that have completed their System Impact Study may have relied on that standard in designing their Generating Facilities, thereby creating an undue burden on such generators.148

    146 AWEA and LSA Comments at 14; NextEra Comments at 13.

    147 AWEA and LSA explain that many non-synchronous generators will have already chosen their collector array cable and transformer or inverter before receiving an interconnection agreement. Rather than being able to choose equipment that could reduce reactive losses, the only compliance option for non-synchronous generators that are “significantly advanced” in the interconnection process to meet the requirements of the Final Rule would be to install potentially expensive reactive power devices. AWEA and LSA Comments at 15.

    148 NextEra Comments at 12-13.

    61. To avoid these undue burdens, we will apply the requirements of this Final Rule to all newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of this Final Rule. Pursuant to the pro forma Large Generator Interconnection Procedures and to the pro forma Small Generator Interconnection Procedures, and simultaneous with the delivery of the System Impact Study, the transmission provider provides a draft Facilities Study Agreement to an interconnecting generator.149 The executing of the Facilities Study Agreement immediately follows the completion of the System Impact Study. The execution of the Facilities Study Agreement, and the subsequent completion of the Facilities Study, represents the time in the interconnection process when the transmission provider and generator developer agree to the general technical requirements that will be needed for the generator to reliably interconnect to the transmission system.150 This point in the interconnection process is early enough in the development of a generation project such that the project developer likely has not purchased equipment to interconnect their project because they have not yet reached an agreement with the transmission provider on the interconnection requirements of the project, which occurs after the completion of the System Impact Study. In choosing to apply the reactive power requirements of this Final Rule to projects that have not executed a Facilities Study Agreement, the Commission is ensuring that a majority of newly interconnecting non-synchronous generators are subject to the requirements of this Final Rule without subjecting projects to additional costs after the interconnection requirements of the project have been established.151 Further, as discussed in the Commission's determination in Section III.B, Power Factor Range, Point of Measurement, and Dynamic Reactive Power Capability Requirements, the new reactive power requirement for non-synchronous generators will be measured at the high-side of the generator substation and should not result in the increased costs of providing dynamic reactive power at the Point of Interconnection that would substantially affect the financial viability of a non-synchronous generator in the interconnection queue that AWEA and LSA raise in their comments.

    149 Section 8.1 of the pro forma Large Generator Interconnection Procedures state that, simultaneous with the delivery of the System Impact Study, the transmission provider must provide the interconnection customer with an Interconnection Facilities Study Agreement. Likewise, section 3.5 of the pro forma Small Generator Interconnection Procedures state that a transmission provider must provide an interconnection customer a Facilities Study Agreement along with the completed System Impact Study report.

    150 Section 7.3 of the pro forma Large Generator Interconnection Procedures explains that the System Impact Study will “provide the requirements or potential impediments to providing the requested interconnection service, including a preliminary indication of the cost and length of time that would be necessary to correct any problems identified in those analyses and implement the interconnection,” along with “a list of facilities that are required as a result of the Interconnection Request and a non-binding good faith estimate of cost responsibility and a non-binding good faith estimated time to construct.” Section 5.0 of the System Impact Study Agreement attached to the pro forma Small Generator Interconnection Procedures as Attachment 7 provides the same.

    151See, e.g., Neptune Regional Transmission Sys., LLC v. PJM Interconnection, L.L.C., 110 FERC ¶ 61,098, at P 23 (“Each customer knows that subsequent cost allocations will be determined by circumstances that are known as of the time its System Impact Study is conducted. Projects may drop out of the queue and customers may move up the queue, but the cost allocation system insulates an interconnection customer from costs arising from events occurring after its System Impact Study is completed, other than costs arising from changes from higher-queued generators. . . . If an interconnection customer were to be held financially responsible for the costs of events occurring after its System Impact Study is completed it would be impossible for the customer to make reasoned business decisions.”), order on reh'g, 111 FERC ¶ 61,455 (2005), aff'd sub nom. Pub. Serv. Elec. and Gas Co. v. FERC, 485 F.3d 1164 (D.C. Cir. 2007).

    62. In addition, using the execution of a Facilities Study Agreement as the point in the interconnection process for transitioning to the requirements of this Final Rule represents a clearly defined point to avoid confusion in applicability. To further ensure clarity for newly interconnecting non-synchronous generators, we include in the revisions to section 9.6.1 to the pro forma LGIA and section 1.8.1 to pro forma SGIA this transition mechanism,152 which we require transmission providers to adopt, as part of their compliance with this Final Rule.153

    152See infra P 74 (providing the amended text of section 9.6.1 to the pro forma LGIA and section 1.8.1 to the pro forma SGIA).

    153 In West Deptford Energy, LLC v. FERC, 766 F.3d 10, 20 (D.C. Cir. 2014), the court explained that the tariff provisions in effect at the time an interconnection agreement is executed apply to that interconnection customer, “unless the amended tariff has a grandfathering provision.”

    63. We also amend Appendix G to the pro forma LGIA, which public utility transmission providers are required to adopt, as part of their compliance with this Final Rule. Appendix G to the pro forma LGIA applies only to wind generators.154 Those newly interconnecting wind generators that have executed a Facilities Study Agreement as of the effective date of this Final Rule will be subject to the amended Appendix G.155 If Appendix G is not applicable to any newly interconnecting wind generators, the public utility transmission provider or RTO/ISO should remove Appendix G from its LGIA as part of its compliance filing. When all newly interconnecting wind generators that have executed Facilities Study Agreements as of the effective date of this Final Rule finalize their LGIAs and Appendix G is no longer necessary, we encourage the public utility transmission providers and RTOs/ISOs to file, or to include as part of, an FPA section 205 filing a proposal to remove Appendix G from their LGIA.

    154See Order No. 661, FERC Stats. & Regs. ¶ 31,186, Appendix B (Appendix G—Interconnection Requirements for a Wind Generating Plant).

    155See infra P 74 (providing the amended text of paragraph A.ii of Appendix G to the pro forma LGIA).

    b. Upgrades to Existing Non-Synchronous Generators

    64. Some commenters raise concerns with applying the requirements of this Final Rule to existing non-synchronous generators making upgrades that require new interconnection requests.156 Generally, such generators would otherwise be exempt from the reactive power requirement. Lincoln argues that the proposed application of the new reactive power requirements to existing non-synchronous generators making upgrades could expose entities with existing power purchase agreements to unforeseen expenses.157 As noted by AWEA and LSA, most upgrades that require new interconnection requests do not involve fundamental changes to the original technology, or to the hardware, but instead simply involve software upgrades.158

    156 AWEA and LSA Comments at 14; Lincoln Comments at 2.

    157 Lincoln Comments at 2.

    158 AWEA and LSA Comments at 14.

    65. We recognize that there are a variety of triggering points for a new interconnection request in the various transmission provider regions, and the fact that an existing non-synchronous generator making an upgrade may not be installing new equipment. We also acknowledge, as the Commission did in the NOPR, that not all existing wind generators are capable of providing reactive power without incurring substantial costs to install new equipment.159 Therefore, we will not apply the requirements of this Final Rule to existing non-synchronous generators making upgrades that require new interconnection requests.160 Rather, we will maintain the existing approach in Appendix G to the pro forma LGIA for existing non-synchronous generators making upgrades to their Generating Facilities that require new interconnection requests after the effective date of this Final Rule, meaning that those upgrades will be exempt from the requirement to provide reactive power unless the transmission provider's System Impact Study shows that provision of reactive power by that generator is necessary to ensure safety or reliability.

    159 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 17.

    160 Given our determination not to adopt the NOPR proposal, we find moot AWEA and LSA's request that the Commission clarify what constitutes a “Material change” to a generator that would trigger a new interconnection study. We note that, on May 13, 2016, Commission staff held a technical conference on generator interconnection issues, exploring triggers for restudies, among other things. See Review of Generator Interconnection Agreements and Procedures, Supplemental Notice of Technical Conference, Docket Nos. RM16-12-000, RM15-21-000 (issued May 4, 2016); Review of Generator Interconnection Agreements and Procedures, Notice Inviting Post-Technical Conference Comments, Docket Nos. RM16-12-000, RM15-21-000 (issued June 3, 2016) (Question 1.10: “Should interconnection procedures be more specific about what constitutes a material modification to a generator interconnection request? Is it clear to interconnection customers what types of modifications to their interconnection requests would and would not affect their place in the queue? Do transmission owners and RTO/ISOs exercise any level of discretion in determining whether a customer has made a material modification? What is the range and nature of that discretion? Please reference provisions in interconnection procedures, as applicable, in your answer.”).

    66. We decline AWEA and LSA's request that the reactive power requirement apply only to the incremental capacity that results from an upgrade in the event the System Impact Study shows the need for reactive power.161 If a transmission provider's System Impact Study shows the need for reactive power as a result of an upgrade, the transmission provider should have the flexibility to require reactive power capability consistent with the needs identified in the study, including the ability to apply the reactive power requirements of this Final Rule to all of the generator's capacity. Otherwise, allowing a transmission provider to apply the reactive power requirements only to the incremental capacity that results from an upgrade would undermine the Commission's goal of ensuring adequate reactive power support for the transmission system.162 Therefore, we will give transmission providers the flexibility to apply the reactive power requirements to all of an existing non-synchronous generator's capacity when that generator makes an upgrade that requires a new interconnection request, and the System Impact Study shows the need for reactive power.163

    161 AWEA and LSA Comments at 14-15.

    162 NOPR, FERC Stats. & Regs. ¶ 32,712 at P 11 (explaining the Commission's concern that the growing penetration of wind generators increases the potential for a deficiency in reactive power, and resulting local reliability issues).

    163 As with the existing approach, should an existing non-synchronous generator disagree with the transmission provider that the System Impact Study shows a need for reactive power as a result of the upgrade, it may challenge the transmission provider's conclusion through dispute resolution or appeal to the Commission. See Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 51.

    67. We require transmission providers to propose, as part of their compliance with this Final Rule, tariff revisions implementing the transition mechanism laid out above for existing non-synchronous generators making upgrades to their Generating Facilities that require new interconnection requests.

    F. Regional Flexibility

    68. Multiple commenters request that the Commission recognize independent entity variations for ISOs/RTOs and regional differences for transmission providers outside of ISOs/RTOs in evaluating compliance with the Final Rule.164

    164 EEI Comments at 11; Indicated NYTOs Comments at 3; ISO-NE Comments at 11-12; ISO/RTO Council Comments at 3; Joint NYTOs Comments at 3; NEPOOL Initial Comments at 6; NEPOOL Supplemental Comments at 3-4.

    69. We apply here all three of the methods for proposing variations adopted in Order No. 2003: (1) Variations based on Regional Entity reliability requirements; (2) variations that are “consistent with or superior to” the Final Rule; and (3) “independent entity variations” from ISOs/RTOs.165 If a transmission provider seeks to justify variations from the requirements of this Final Rule, it may do so in its compliance filing. A transmission provider may propose to include standards developed by NERC or a Regional Entity in its own standard interconnection agreement. The Commission is mindful of the work being done by these organizations in developing standards for the interconnection of non-synchronous generators, and we strongly encourage all interested parties to continue to participate in developing these standards.

    165 Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at PP 824-827; see also Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 109.

    G. Miscellaneous Comments

    70. CAISO argues that the Commission should allow transmission providers to propose additional technical requirements for interconnecting non-synchronous generators related to voltage support, such as requiring automatic voltage control.166 Transmission providers may propose additional technical requirements, to the extent they believe those are necessary, in a separate filing pursuant to section 205 of the FPA.

    166 CAISO Comments at 8.

    71. MATL requests clarification that the Commission will continue to accept tariff arrangements that require customers on merchant transmission lines to self-supply ancillary services. MATL specifically requests that this clarification be included in the final rule compliance obligation, and in similar future proceedings.167 We clarify that merchant transmission lines that have received exemptions from providing ancillary services will not be affected by this Final Rule. Therefore, those entities that do not have reactive power requirements in their Commission-approved OATTs will not need to submit a compliance filing in response to this Final Rule.

    167 MATL Comments at 5.

    72. SCE requests that the Commission expand the scope of the rulemaking proceeding to include low voltage ride-through requirements for synchronous and non-synchronous Generating Facilities smaller than 20 MW.168 We decline to expand the scope of the rulemaking proceeding to include low voltage ride-through requirements for synchronous and non-synchronous Generating Facilities smaller than 20 MW. We note that the Commission has issued a Notice of Proposed Rulemaking, Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities, to consider these issues.169

    168 SCE Comments at 4.

    169See Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities, Notice of Proposed Rulemaking, 81 FR 15481 (Mar. 23, 2016), 154 FERC ¶ 61,222 (2016).

    73. AWEA and LSA request that the Commission limit the reactive power requirements to a specific range of voltage at the Point of Interconnection.170 NERC also recommends that the Commission clarify the reactive power requirements by providing a reactive capability versus voltage characteristic diagram.171 We find the request to specify a voltage range for the reactive power requirements to be outside the scope of this proceeding. The existing pro forma LGIA and pro forma SGIA do not specify a voltage range for the reactive power requirement for synchronous generators, and the Commission does not have a sufficient record on which to create such a requirement.

    170 AWEA and LSA Comments at 7 (explaining the range of voltage and providing a proposed Q-V curve).

    171 NERC Comments at 9-10.

    IV. Compliance and Implementation

    74. Section 35.28(f)(1) of the Commission's regulations requires every public utility with a non-discriminatory OATT on file to also have on file the pro forma LGIA and pro forma SGIA “required by Commission rulemaking proceedings promulgating and amending such interconnection procedures and agreements.” 172 The Commission hereby revises section 9.6.1 of the pro forma LGIA to read:

    172 18 CFR 35.28(f)(1) (2015).

    9.6.1 Power Factor Design Criteria

    9.6.1.1 Synchronous Generation. Interconnection Customer shall design the Large Generating Facility to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established different requirements that apply to all synchronous generators in the Control Area on a comparable basis. [The requirements of this paragraph shall not apply to wind generators.] (Bracketed text is deleted.)

    9.6.1.2 Non-Synchronous Generation. Interconnection Customer shall design the Large Generating Facility to maintain a composite power delivery at continuous rated power output at the high-side of the generator substation at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established a different power factor range that applies to all non-synchronous generators in the Control Area on a comparable basis. This power factor range standard shall be dynamic and can be met using, for example, power electronics designed to supply this level of reactive capability (taking into account any limitations due to voltage level, real power output, etc.) or fixed and switched capacitors, or a combination of the two. This requirement shall only apply to newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of the Final Rule establishing this requirement (Order No. 827).

    The Commission similarly revises section 1.8.1 of the pro forma SGIA to read:

    1.8.1 Power Factor Design Criteria

    1.8.1.1 Synchronous Generation. The Interconnection Customer shall design its Small Generating Facility to maintain a composite power delivery at continuous rated power output at the Point of Interconnection at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established different requirements that apply to all similarly situated synchronous generators in the control area on a comparable basis. [The requirements of this paragraph shall not apply to wind generators.] (Bracketed text is deleted.)

    1.8.1.2 Non-Synchronous Generation. The Interconnection Customer shall design its Small Generating Facility to maintain a composite power delivery at continuous rated power output at the high-side of the generator substation at a power factor within the range of 0.95 leading to 0.95 lagging, unless the Transmission Provider has established a different power factor range that applies to all similarly situated non-synchronous generators in the control area on a comparable basis. This power factor range standard shall be dynamic and can be met using, for example, power electronics designed to supply this level of reactive capability (taking into account any limitations due to voltage level, real power output, etc.) or fixed and switched capacitors, or a combination of the two. This requirement shall only apply to newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement as of the effective date of the Final Rule establishing this requirement (Order No. 827).

    In addition, the Commission revises paragraph A.ii of Appendix G to the pro forma LGIA, “Technical Standards Applicable to a Wind Generation Plant,” as follows: 173

    173 The full text of the pro forma LGIA will be posted on the Commission's internet page at: http://www.ferc.gov/industries/electric/indus-act/gi/stnd-gen.asp. The full text of the pro forma SGIA will be posted on the Commission's internet page at: http://www.ferc.gov/industries/electric/indus-act/gi/small-gen.asp.

    The following reactive power requirements apply only to a newly interconnecting wind generating plant that has executed a Facilities Study Agreement as of the effective date of the Final Rule establishing the reactive power requirements for non-synchronous generators in section 9.6.1 of this LGIA (Order No. 827). A wind generating plant to which this provision applies shall maintain a power factor within the range of 0.95 leading to 0.95 lagging, measured at the Point of Interconnection as defined in this LGIA, if the Transmission Provider's System Impact Study shows that such a requirement is necessary to ensure safety or reliability. The power factor range standard can be met by using, for example, power electronics designed to supply this level of reactive capability (taking into account any limitations due to voltage level, real power output, etc.) or fixed and switched capacitors if agreed to by the Transmission Provider, or a combination of the two. The Interconnection Customer shall not disable power factor equipment while the wind plant is in operation. Wind plants shall also be able to provide sufficient dynamic voltage support in lieu of the power system stabilizer and automatic voltage regulation at the generator excitation system if the System Impact Study shows this to be required for system safety or reliability.174

    174 Section A.ii of Appendix G to the pro forma LGIA.

    75. As in Order Nos. 2003 175 and 661,176 the Commission is requiring all public utility 177 transmission providers to adopt the requirements of this Final Rule as revisions (as discussed above) to the LGIA and SGIA in their OATTs within 90 days after the publication of this Final Rule in the Federal Register.178 Transmission providers that are not public utilities also must adopt the requirements of this Final Rule as a condition of maintaining the status of their safe harbor tariff or otherwise satisfying the reciprocity requirement of Order No. 888.179 As discussed above, we are not requiring changes to interconnection agreements already in effect, but are applying the requirements of this Final Rule to newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement. The requirements of this Final Rule also do not apply to existing non-synchronous generators making upgrades to their Generating Facilities that require new interconnection requests.

    175 Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at P 910.

    176 Order No. 661, FERC Stats. & Regs. ¶ 31,186 at P 121.

    177 For purposes of this Final Rule, a public utility is a utility that owns, controls, or operates facilities used for transmitting electric energy in interstate commerce, as defined by the FPA. See 16 U.S.C. 824(e) (2012). A non-public utility that seeks voluntary compliance with the reciprocity condition of an OATT may satisfy that condition by filing an OATT, which includes the pro forma LGIA and pro forma SGIA.

    178 MISO requests that the Commission extend the requirements of this Final Rule to the MISO pro forma Generator Interconnection Agreement and not just to the Commission's pro forma LGIA and pro forma SGIA. MISO Comments at 4-6. As stated, each public utility transmission provider subject to this Final Rule is directed to adopt the requirements of this Final Rule as revisions to the standard interconnection agreements in its OATT.

    179 Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 31,760-63.

    76. In some cases, public utility transmission providers may have provisions in the currently effective LGIAs and SGIAs in their OATTs related to the provision of reactive power by non-synchronous generators that the Commission has deemed to be consistent with or superior to the pro forma LGIA and pro forma SGIA. Where the relevant provisions of the pro forma LGIA and pro forma SGIA are modified by this Final Rule, public utility transmission providers must either comply with this Final Rule or demonstrate that their previously-approved LGIA and SGIA variations continue to be consistent with or superior to the pro forma LGIA and pro forma SGIA as modified by this Final Rule.

    77. In addition, some ISOs/RTOs may have provisions in the currently effective LGIAs and SGIAs in their OATTs related to the provision of reactive power by non-synchronous generators that the Commission has accepted as an independent entity variation to the pro forma LGIA and pro forma SGIA. Where the relevant provisions of the pro forma LGIA and pro forma SGIA are modified by this Final Rule, ISOs/RTOs must either comply with this Final Rule or demonstrate that their previously-approved LGIA and SGIA variations continue to justify an independent entity variation from the pro forma LGIA and pro forma SGIA as modified by this Final Rule.

    V. Information Collection Statement

    78. The following collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) regulations under section 3507(d) of the Paperwork Reduction Act of 1995.180 OMB's regulations require approval of certain information collection requirements imposed by agency rules.181 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this Final Rule will not be penalized for failing to respond to this collection of information unless the collection of information displays a valid OMB control number.

    180 44 U.S.C. 3507(d) (2012).

    181 5 CFR 1320.11 (2015).

    79. The reforms adopted in this Final Rule revise the Commission's pro forma LGIA and pro forma SGIA in accordance with section 35.28(f)(1) of the Commission's regulations.182 This Final Rule requires each public utility transmission provider to revise its pro forma LGIA and pro forma SGIA to: (1) Eliminate the exemptions for wind generators from the requirement to provide reactive power; and (2) require that all newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement provide reactive power as a condition of interconnection as set forth in their LGIA or SGIA as of the effective date of this Final Rule. The reforms adopted in this Final Rule require filings of pro forma LGIAs and pro forma SGIAs with the Commission. The Commission anticipates the revisions required by this Final Rule, once implemented, will not significantly change currently existing burdens on an ongoing basis. With regard to those public utility transmission providers that believe that they already comply with the revisions adopted in this Final Rule, they can demonstrate their compliance in the filing required 90 days after the effective date of this Final Rule. The Commission will submit the proposed reporting requirements to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act.183

    182 18 CFR 35.28(f)(1) (2015).

    183 44 U.S.C. 3507(d) (2012).

    80. While the Commission expects the revisions adopted in this Final Rule will provide significant benefits, the Commission understands that implementation can be a complex and costly endeavor. The Commission solicited comments on the accuracy of provided burden and cost estimates and any suggested methods for minimizing the respondents' burdens. The Commission did not receive any comments concerning its burden or cost estimates. Therefore, the Commission retains the estimates proposed in the NOPR, with minor changes to reflect updated estimates.

    Burden Estimate: The Commission believes that the burden estimates below are representative of the average burden on respondents. The estimated burden and cost for the requirements adopted in this Final Rule follow.184

    184 Commission staff estimates that industry is similarly situated in terms of hourly cost (wages plus benefits). Based on the Commission's average cost (wages plus benefits) for 2015, $72/hour is used.

    FERC 516B Revisions in Final Rule in RM16-1 Number of
  • respondents 185
  • Annual
  • number of
  • responses per
  • respondent
  • Total
  • number of
  • responses
  • Average
  • burden (hrs.)
  • and cost ($)
  • per response
  • Total annual
  • burden hours
  • and total
  • annual cost
  • ($)
  • (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) Conforming LGIA changes to incorporate revisions 132 1 132 7.5
  • $540
  • 990 hours.
  • $71,280.
  • Conforming SGIA changes to incorporate revisions 118 1 118 7.5
  • $540
  • 885 hours.
  • $63,720.
  • Total 250 15 hours
  • $1,080
  • 1,875 hours.
  • $135,000.
  • Cost to Comply: The Commission has projected the total cost of compliance as follows: 186

    185 Number of Applicable Registered Entities.

    186 The costs for Year 1 consist of filing revisions to the pro forma LGIA and pro forma SGIA with the Commission within 90 days of the effective date of this Final Rule plus initial implementation. The Commission does not expect any ongoing costs beyond the initial compliance in Year 1.

    • Year 1: $135,000 ($1,080/utility).

    • Year 2: $0.

    After implementation in Year 1, the revisions adopted in this Final Rule would be complete.

    Title: FERC-516B, Electric Rate Schedules and Tariff Filings.

    Action: Revisions to an information collection.

    OMB Control No.: TBD

    Respondents for this Rulemaking: Businesses or other for profit and/or not-for-profit institutions.

    Frequency of Information: One-time during Year 1.

    Necessity of Information: The Commission adopts revisions in this Final Rule to the pro forma LGIA and pro forma SGIA to improve the reliability of the bulk power system by requiring all newly interconnecting non-synchronous generators to provide reactive power as a condition of interconnection, and to ensure that all generators are being treated in a not unduly discriminatory or preferential manner.

    Internal Review: The Commission has reviewed the requirements in this Final Rule and has determined that such revisions are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

    81. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873.

    82. Comments on the collection of information and the associated burden estimates in this Final Rule should be sent to the Commission in this docket and may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission], at the following email address: [email protected] Please reference the docket number of this rulemaking in your submission.

    VI. Regulatory Flexibility Act Certification

    83. The Regulatory Flexibility Act of 1980 (RFA) 187 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The RFA does not mandate any particular outcome in a rulemaking. It only requires consideration of alternatives that are less burdensome to small entities and an agency explanation of why alternatives were rejected.

    187 5 U.S.C. 601-12 (2012).

    84. The Small Business Administration (SBA) revised its size standards (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates. Under SBA's standards, some transmission owners will fall under the following category and associated size threshold: Electric bulk power transmission and control, at 500 employees.188

    188 13 CFR 121.201, Sector 22 (Utilities), NAICS code 221121 (Electric Bulk Power Transmission and Control) (2015).

    85. The Commission estimates that the total number of public utility transmission providers that would have to modify the LGIAs and SGIAs within their currently effective OATTs is 132. Of these, the Commission estimates that approximately 43 percent are small entities (approximately 57 entities). The Commission estimates the average total cost to each of these entities will be minimal, requiring on average 15 hours or $1,080. According to SBA guidance, the determination of significance of impact “should be seen as relative to the size of the business, the size of the competitor's business, and the impact the regulation has on larger competitors.” 189 The Commission does not consider the estimated burden to be a significant economic impact. As a result, the Commission certifies that the revisions adopted in this Final Rule will not have a significant economic impact on a substantial number of small entities.

    189 U.S. Small Business Administration, A Guide for Government Agencies How to Comply with the Regulatory Flexibility Act, at 18 (May 2012), https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.

    VII. Environmental Analysis

    86. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.190 As we stated in the NOPR, the Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for the revisions adopted in this Final Rule under section 380.4(a)(15) of the Commission's regulations, which provides a categorical exemption for approval of actions under sections 205 and 206 of the FPA relating to the filing of schedules containing all rates and charges for the transmission or sale of electric energy subject to the Commission's jurisdiction, plus the classification, practices, contracts and regulations that affect rates, charges, classifications, and services.191 The revisions adopted in this Final Rule update and clarify the application of the Commission's standard interconnection requirements to non-synchronous generators. Therefore, this Final Rule falls within the categorical exemptions provided in the Commission's regulations, and as a result neither an Environmental Impact Statement nor an Environmental Assessment is required.

    190Regulations Implementing National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    191 18 CFR 380.4(a)(15) (2015).

    VIII. Document Availability

    87. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    88. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.

    89. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    IX. Effective Date and Congressional Notification

    90. The Final Rule is effective September 21, 2016. However, as noted above, the requirements of this Final Rule will apply only to newly interconnecting non-synchronous generators that have not yet executed a Facilities Study Agreement. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this Final Rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration.

    List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Non-discriminatory open access transmission tariffs.

    By the Commission.

    Issued: June 16, 2016. Kimberly D. Bose, Secretary.

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix A—List of Commenters [RM16-1-000] AWEA and LSA American Wind Energy Association and Large-scale Solar Association. CAISO California Independent System Operator Corporation. EEI Edison Electric Institute. EPSA Electric Power Supply Association. Idaho Power Idaho Power Company. Indicated NYTOs Consolidated Edison Company of New York, Inc.; Niagara Mohawk Power Corporation d/b/a National Grid; and Orange and Rockland Utilities, Inc. ISO/RTO Council ISO/RTO Council. ISO-NE ISO New England Inc. ITC International Transmission Company d/b/a ITC Transmission; Michigan Electric Transmission Company, LLC; ITC Midwest LLC; and ITC Great Plains, LLC. Joint NYTOs New York Power Authority; New York State Electric and Gas; Rochester Gas and Electric; and Central Hudson Gas and Electric. Lincoln City of Lincoln, Nebraska d/b/a Lincoln Electric System. MATL MATL LLP. Midwest Energy Midwest Energy, Inc. MISO Midcontinent Independent System Operator, Inc. NaturEner NaturEner USA, LLC and its subsidiaries. NEPOOL New England Power Pool Participants Committee. NERC North American Electric Reliability Corporation. NextEra NextEra Energy, Inc. PG&E Pacific Gas and Electric Company. Public Interest Organizations Center for Rural Affairs; Clean Wisconsin; Great Plains Institute; Natural Resources Defense Council; Sierra Club; Sustainable FERC Project; Western Grid Group; Wind on the Wires. SCE Southern California Edison Company. SDG&E San Diego Gas and Electric Company. Six Cities Cities of Anaheim, Azusa, Banning, Colton, Pasadena, and Riverside, California. Union of Concerned Scientists Union of Concerned Scientists.
    [FR Doc. 2016-14764 Filed 6-22-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9761] RIN 1545-BM88 Inversions and Related Transactions; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final and temporary regulations; correction.

    SUMMARY:

    This document contains corrections to final and temporary regulations (TD 9761) that were published in the Federal Register on April 8, 2016 (81 FR 20858). The temporary regulations address transactions that are structured to avoid the purposes of sections 7874 and 367 of the Internal Revenue Code and certain post-inversion tax avoidance transactions.

    DATES:

    This correction is effective on June 23, 2016 and applicable on April 8, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rose E. Jenkins at (202) 317-6934 (not a toll free number).

    SUPPLEMENTARY INFORMATION: Background

    The final and temporary regulations (TD 9761) that are the subject of this correction are under sections 304, 367, 956, 7701(l), and 7874 of the Internal Revenue Code.

    Need for Correction

    As published, the final and temporary regulations (TD 9761) contain errors that may prove to be misleading and are in need of clarification.

    Correction of Publication

    Accordingly, the final and temporary regulations (TD 9761), that are the subject of FR Doc. 2016-07300, are corrected as follows:

    1. On page 20858, in the preamble, the second column, the ninth line from the bottom of the column, the language “section 7874 and § 1.367(a)-3(c) and” is corrected to read “section 7874 and”.

    2. On page 20860, in the preamble, the third column, under the paragraph heading “E. Section 7701”, the language “re-characterizing” and “re-characterization” is corrected to read “recharacterizing” and “recharacterization” respectively wherever it appears.

    3. On page 20862, in the preamble, the third column, under the paragraph heading “a. § 1.7874-4T, In General” the fifth and sixth lines, the language “entity acquisition described in section 7874(a)(2)(B)(i) is excluded from the” is corrected to read “entity acquisition is excluded from the”.

    4. On page 20869, in the preamble, the first column, the twenty-fifth line from the bottom of the column, the language “60% or 80% on the completion date.” is corrected to read “60 or 80 on the completion date.”.

    5. On page 20871, in the preamble, the second column, the third and tenth lines from the top of the first full paragraph, the language “domestic” is removed.

    6. On page 20873, in the preamble, the third column, under the paragraph heading “II. Rules Addressing Certain Post-Inversions Tax Avoidance Transactions” the first line, the language “As stated in Section 1 of the 2014” is corrected to read “As stated in section 1 of the 2014”.

    7. On page 20874, in the preamble, the third column, the twenty-second line from the top of the column, the language “completion date, is treated as an” is corrected to read “completion date is treated as an”.

    8. On page 20877, in the preamble, the first column, under the paragraph heading “ii. Exceptions From Recharacterization” the twelfth line of the first full paragraph, the language “recognized. See Section 2.C of this Part” is corrected to read “recognized. See Section 2.c of this Part”.

    9. On page 20880, in the preamble, the first column, under the paragraph heading “b. Regulations Implementing the Section 367(b) Asset Dilution Rule” the third line from the bottom of the column, the language “property to a foreign transferee” is corrected to read “property to a transferee foreign”.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
    [FR Doc. 2016-14648 Filed 6-22-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9761] RIN 1545-BM88 Inversions and Related Transactions; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final and temporary regulations; correcting amendment.

    SUMMARY:

    This document contains corrections to final and temporary regulations (TD 9761) that were published in the Federal Register on April 8, 2016 (81 FR 20858). The temporary regulations address transactions that are structured to avoid the purposes of sections 7874 and 367 of the Internal Revenue Code and certain post-inversion tax avoidance transactions.

    DATES:

    This correction is effective on June 23, 2016 and applicable on April 8, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rose E. Jenkins at (202) 317-6934 (not a toll free number).

    SUPPLEMENTARY INFORMATION:

    Background

    The final and temporary regulations (TD 9761) that are the subject of this correction are under sections 304, 367, 956, 7701(l), and 7874 of the Internal Revenue Code.

    Need for Correction

    As published, the final and temporary regulations (TD 9761) contain errors that may prove to be misleading and are 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 amendments:

    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 1.304-7T is amended by revising paragraph (f) to read as follows:
    § 1.304-7T Certain acquisitions by foreign acquiring corporations (temporary).

    (f) Expiration date. This section expires on or before April 4, 2019.

    Par. 3. Section 1.367(a)-3T is amended by revising paragraph (k) to read as follows:
    § 1.367(a)-3T Treatment of transfers of stock or securities to foreign corporations (temporary).

    (k) Expiration date. Paragraph (c)(3)(iii)(C) of this section expires on or before April 4, 2019.

    § 1.367(b)-4 [Amended]
    Par. 4. For each entry in § 1.367(b)-4 in the “Paragraph” column remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Paragraph Remove Add (b)(1)(i)(B)(2) foreign acquiring corporation transferee foreign corporation. (b)(1)(ii)(A), first sentence foreign acquiring corporation transferee foreign corporation. (b)(2)(i)(A) foreign acquiring corporations transferee foreign corporation. (b)(2)(i)(B) foreign acquiring corporation transferee foreign corporation. (b)(2)(i)(C) foreign acquiring corporation transferee foreign corporation. (b)(3)(i) foreign acquiring corporation transferee foreign corporation. (d)(2), Example, heading foreign acquiring corporation transferee foreign corporation.
    § 1.367(b)-4T [Amended]
    Par. 5. Section 1.367(b)-4T(d)(1) is amended by removing the language “§ 1.367(b)-(3)” and adding in its place the language “§ 1.367(b)-3”. Par. 6. Section 1.956-2T is amended by revising the first sentence of paragraph (a)(4)(iii) Example 3.(A), the second sentence of paragraph (a)(4)(iii) Example 3.(B), and the third sentence of paragraph (a)(4)(iii) Example 4.(B) to read as follows:
    § 1.956-2T Definition of United States property (temporary).

    (a) * * *

    (4) * * *

    (iii) * * *

    Example 3.

    (A) Facts. Before the inversion transaction, FA also wholly owns USP, a domestic corporation, which, in turn, wholly owns, LFS, a foreign corporation that is a controlled foreign corporation. * * *

    (B) * * * Because LFS was a controlled foreign corporation and a member of the EAG with respect to the inversion transaction on the completion date, and DT was not a United States shareholder with respect to LFS on or before the completion date, LFS is excluded from the definition of expatriated foreign subsidiary pursuant to § 1.7874-12T(a)(9)(ii). * * *

    Example 4.

    * * *

    (B) * * * Because LFSS was not a member of the EAG with respect to the inversion transaction on the completion date, LFSS is not excluded from the definition of expatriated foreign subsidiary pursuant to § 1.7874-12T(a)(9)(ii). * * *

    Par. 7. Section 1.7701(l)-4T is amended by revising the ninth sentence of paragraph (a), the fourth sentence of paragraph (g) Example 3.(ii)(B), and the third sentence of paragraph (g) Example 11.(ii) to read as follows:
    § 1.7701(l)-4T Rules regarding inversion transactions (temporary).

    (a) * * * See § 1.367(b)-4T(e) and (f) for rules concerning certain other exchanges after an inversion transaction. * * *

    (g) * * *

    Example 3.

    * * *

    (ii) * * *

    (B) * * * Although FA (a non-CFC foreign related person) indirectly owns $4x of FT stock both immediately before and after the specified transaction and any related transaction, all of that stock is directly owned by DT (a domestic corporation), and as a result, under paragraph (f)(4) of this section, none of that stock is treated as directly or indirectly owned by FP for purposes of calculating the pre-transaction ownership percentage and the post-transaction ownership percentage with respect to FT. * * *

    Example 11.

    * * *

    (ii) * * * However, after the April 30, 2016 transfer, because FS ceases to be a foreign related person, it ceases to be a specified related person. * * *

    Par. 8. Section 1.7874-1T is amended by revising paragraph (i) to read as follows:
    § 1.7874-1T Disregard of affiliate-owned stock (temporary).

    (i) Expiration date. This section expires on or before April 4, 2019.

    Par. 9. Section 1.7874-2T is amended by revising paragraphs (c)(4)(iii) and (m) to read as follows:
    § 1.7874-2T Surrogate foreign corporation (temporary).

    (c) * * *

    (4) * * *

    (iii) Additional related transactions. If, pursuant to the same plan (or a series of related transactions), a foreign corporation directly or indirectly acquires (under the principles of paragraph (c)(4)(ii) of this section) substantially all of the properties directly or indirectly held by a subsequent acquiring corporation in a transaction occurring after the subsequent acquisition, then the principles of paragraph (c)(4)(i) of this section apply to such transaction (and any subsequent transaction or transactions occurring pursuant to the plan (or the series of related transactions)).

    (m) Expiration date. This section expires on or before April 4, 2019.

    Par. 10. Section 1.7874-3T is amended by revising paragraph (g) to read as follows:
    § 1.7874-3T Substantial business activities (temporary).

    (g) Expiration date. The applicability of paragraphs (b)(4) and (d)(10) of this section expires on or before April 4, 2019.

    Par. 11. Section 1.7874-6T is amended by revising paragraphs (f)(3) and (i) to read as follows:
    § 1.7874-6T Stock transferred by members of the EAG (temporary).

    (f) * * *

    (3) A transferring corporation means a corporation that is a former domestic entity shareholder or former domestic entity partner.

    (i) Expiration date. This section expires on or before April 4, 2019.

    Par. 12. Section 1.7874-7T is amended by revising the first sentence of paragraph (g) Example 2.(ii) and paragraph (i) to read as follows:
    § 1.7874-7T Disregard of certain stock attributable to passive assets (temporary).

    (g) * * *

    Example 2.

    * * *

    (ii) Analysis. Without regard to the application of §§ 1.7874-4T(b) and 1.7874-10T(b) and paragraph (b) of this section, the ownership percentage described in section 7874(a)(2)(B)(ii) would be less than 5 (by vote and value), or 4 (4/100, or 4 shares of FA stock held by Individual B by reason of owning the DT stock, determined under § 1.7874-2(f)(2), over 100 shares of FA stock outstanding after the DT acquisition).

    (i) Expiration date. The applicability of this section expires on or before April 4, 2019.

    Par. 13. Section 1.7874-8T is amended by revising the third sentence of paragraph (h) Example 1.(ii), the fifth sentence of paragraph (h) Example 2.(ii), the ninth sentence of paragraph (h) Example 3.(ii), and paragraph (j) to read as follows:
    § 1.7874-8T Disregard of certain stock attributable to multiple domestic entity acquisitions (temporary).

    (h) * * *

    Example 1.

    * * *

    (ii) * * * As a result, and because there were no redemptions of FA stock, the excluded amount is $150x (calculated as 100, the total number of prior acquisition shares, multiplied by $1.50x, the fair market value of a single share of FA stock on the completion date with respect to the DT2 acquisition). * * *

    Example 2.

    * * *

    (ii) * * * As a result, the excluded amount is $112.50x, calculated as 75 (100, the total number of prior acquisition shares, less 25, the allocable redeemed shares) multiplied by $1.50x (the fair market value of a single share of FA stock on the completion date with respect to the DT2 acquisition). * * *

    Example 3.

    * * *

    (ii) * * * Accordingly, the excluded amount is $112.50x, calculated as 150 (200, the total number of prior acquisition shares, less 50, the allocable redeemed shares) multiplied by $0.75x (the fair market value of a single class of FA stock on the completion date with respect to the DT2 acquisition). * * *

    (j) Expiration date. The applicability of this section expires on or before April 4, 2019.

    Par. 14. Section 1.7874-9T is amended by revising paragraph (e)(1), the first sentence of paragraph (f) Example.(ii)(A), the seventh sentence of paragraph (f) Example.(iv) and paragraph (h) to read as follows:
    § 1.7874-9T Disregard of certain stock in third-country transactions (temporary).

    (e) * * *

    (1) Acquisition of multiple foreign corporations that are tax residents of the same foreign country. When multiple foreign acquisitions occur pursuant to the same plan (or a series of related transactions) and two or more of the acquired foreign corporations were subject to tax as a resident of the same foreign country before the foreign acquisitions and all related transactions, then those foreign acquisitions are treated as a single foreign acquisition and those acquired foreign corporations are treated as a single acquired foreign corporation for purposes of this section.

    (f) * * *

    Example.

    * * *

    (ii) * * *

    (A) The FT acquisition is a foreign acquisition because, pursuant to the FT acquisition, FA (a foreign acquiring corporation) acquires 100 percent of the stock of FT and is thus treated as indirectly acquiring 100 percent of the properties held by FT (an acquired foreign corporation). * * *

    (iv) * * * FA's indirect acquisition of FT's properties is a covered foreign acquisition because 35 shares of FA stock (the shares received by Individual B) are held by reason of holding stock in FT; thus, the foreign ownership percentage is 100 percent (35/35). * * *

    (h) Expiration date. The applicability of this section expires on or before April 4, 2019.

    Par. 15. Section 1.7874-10T is amended by revising paragraphs (d)(2) and (j) to read as follows:
    § 1.7874-10T Disregard of certain distributions (temporary).

    (d) * * *

    (2) On the completion date, former domestic entity shareholders or former domestic entity partners, as applicable, in the aggregate, own (applying the attribution rules of section 318(a) with the modifications described in section 304(c)(3)(B)) less than five percent (by vote and value) of the stock of (or a partnership interest in) each member of the expanded affiliated group.

    (j) Expiration date. This section expires on or before April 4, 2019.

    Par. 16. Section 1.7874-11T is amended by revising paragraphs (b)(1) and (2), and (g) to read as follows:
    § 1.7874-11T Rules regarding inversion gain (temporary).

    (b) * * * (1) General rule. Except as provided in paragraphs (b)(2) and (3) of this section, inversion gain includes income (including an amount treated as a dividend under section 78) or gain recognized by an expatriated entity for any taxable year that includes any portion of the applicable period by reason of a direct or indirect transfer of stock or other properties or license of any property either as part of the domestic entity acquisition, or after such acquisition if the transfer or license is to a specified related person.

    (2) Exception for property described in section 1221(a)(1). Inversion gain does not include income or gain recognized by reason of the transfer or license, after the domestic entity acquisition, of property that is described in section 1221(a)(1) in the hands of the transferor or licensor.

    (g) Expiration date. This section expires on or before April 4, 2019.

    Par. 17. Section 1.7874-12T is amended by revising paragraph (c) to read as follows:
    § 1.7874-12T Definitions (temporary).

    (c) Expiration date. This section expires on or before April 4, 2019.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
    [FR Doc. 2016-14649 Filed 6-22-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Safety and Environmental Enforcement 30 CFR Part 250 [Docket ID: BSEE-2016-0006; EEEE500000 16XE1700DX EX1SF0000.DAQ000] RIN 1014-AA15 Oil and Gas and Sulphur Operations in the Outer Continental Shelf—Technical Corrections; Correction AGENCY:

    Bureau of Safety and Environmental Enforcement (BSEE), Interior.

    ACTION:

    Final rule; correction.

    SUMMARY:

    The Bureau of Safety and Environmental Enforcement (BSEE) is correcting a final rule that appeared in the Federal Register on June 6, 2016 (81 FR 36145).

    DATES:

    Effective July 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Betty Cox, Regulations and Standards Branch at (703) 787-1665 or email at [email protected].

    SUPPLEMENTARY INFORMATION:

    In the FR Doc. 2016-12487 appearing on page 36150 in the Federal Register of Monday, June 6, 2016, the following correction is made:

    § 250.904 [Corrected]

    1. On page 36150, in the first column, remove amendatory instruction 20 correcting § 250.904.

    Dated: June 17, 2016. Robert W. Middleton, Deputy Chief, Office of Offshore Regulatory Programs.
    [FR Doc. 2016-14850 Filed 6-22-16; 8:45 am] BILLING CODE 4310-VH-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0474] Drawbridge Operation Regulation; Willamette River, Portland, OR 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 Morrison Bridge across the Willamette River, mile 12.8, at Portland, Oregon. The deviation is necessary to accommodate Multnomah County's replacement of the bridge decking. This deviation allows the bridge to only open half of the span, single leaf, to allow for the replacement of bridge decking. The deviation also allows the vertical clearance to be reduced due to the project's containment system.

    DATES:

    This deviation is effective from 6 a.m. on April 1, 2017 until 7 p.m. on September 27, 2017.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0474] 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:

    Multnomah County has requested that the Morrison Bridge across the Willamette River, mile 12.8, be allowed to only open half the span, 92 feet, as opposed to a full opening, 185 feet, to accommodate the replacement of the bridge decking. The County has also requested to reduce the vertical clearance of the non-opening side of the span with scaffolding erected 10 feet below the lower bridge cord for a containment system and to require at least a two hour advance notice for an opening. The Morrison Bridge is a double bascule bridge. When the bascule span is in the closed-to-navigation position, the bridge provides 69 feet of vertical clearance, which will be reduced to 59 feet with the containment system in place. The normal operating schedule for the Morrison Bridge is in accordance with 33 CFR 117.897(c)(3)(iv). The vertical clearance is above Columbia River Datum 0.0.

    The deviation period is from 6 a.m. on April 1, 2017 until 7 p.m. on September 27, 2017. The deviation allows the Morrison Bridge operator to only open half the span for maritime traffic with at least a two hour advanced notice. Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft.

    Vessels able to pass through the Morrison Bridge in the closed position may do so at any time. A tug will be on site to assist vessels through the single leaf span opening upon request. The bridge will be able to open half the span for emergencies with a two hour notice and there is 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 bridges so that vessel operators 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: June 17, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-14846 Filed 6-22-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0260] Safety Zone; San Francisco Giants Fireworks, San Francisco Bay, San Francisco, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the San Francisco Giants Fireworks display in the Captain of the Port, San Francisco area of responsibility during the dates and times noted below. This action is necessary to protect life and property of the maritime public from the hazards associated with the fireworks display. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).

    DATES:

    The regulations in 33 CFR 165.1191, Table 1, Item number 1 will be enforced from 11 a.m. on June 24, 2016 to 1 a.m. on June 25, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 1 on June 24, 2016. From 11 a.m. until 10 p.m. on June 24, 2016 the safety zone will be enforced in the navigable waters around and under the fireworks barge within a radius of 100 feet throughout the loading and transit of fireworks barge at the launch site and until the start of the fireworks display. As indicated below, during the fireworks display, the size of the safety zone will increase to accommodate fall-out and other debris during the display.

    From 11 a.m. until 5 p.m. on June 24, 2016 the fireworks barge will be loading pyrotechnics at Pier 50 in San Francisco, CA. From 5 p.m. to 9:30 p.m. on June 24, 2016 the fireworks barge will remain at Pier 50. From 9:30 p.m. to 10 p.m. on June 24, 2016 the loaded fireworks barge will transit from Pier 50 to the launch site near Pier 48 in approximate position 37°46′36″ N., 122°22′56″ W. (NAD83). At the conclusion of the baseball game, approximately 10 p.m. on June 24, 2016, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius of 700 feet in approximate position 37°46′36″ N., 122°22′56″ W. (NAD83) for the San Francisco Giants Fireworks display in 33 CFR 165.1191, Table 1, Item number 1. Upon the conclusion of the fireworks display, the safety zone shall terminate.

    Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

    This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

    If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

    Dated: June 3, 2016. Patrick S. Nelson, Captain, U.S. Coast Guard, Captain of the Port San Francisco, Acting.
    [FR Doc. 2016-14911 Filed 6-22-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-201 5-1123] RIN 1625-AA00 Safety Zone; Pleasure Beach Bridge, Bridgeport, CT AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone within the Coast Guard Sector Long Island Sound (LIS) Captain of the Port (COTP) Zone. This temporary final rule is necessary to provide for the safety of life on navigable waters. Entry into, transit through, mooring, or anchoring within the safety zone is prohibited unless authorized by COTP Sector LIS.

    DATES:

    This rule is effective without actual notice from 12:01 a.m. on June 23, 2016 until 12:01 a.m. on July 1, 2016. For the purposes of enforcement, actual notice will be used from January 1, 2016, until June 23, 2016.

    ADDRESSES:

    Documents mentioned in this preamble are part of docket [USCG-2015-1123]. To view documents mentioned in this preamble as being available in the docket, go to http://www.rcgulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, contact Lieutenant Junior Grade Martin Betts, Prevention Department, Coast Guard Sector Long Island Sound, telephone (203) 468-4432, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations COTP Captain of the Port OHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of Proposed Rulemaking NAD 83 North American Datum 1983 II. Background Information and Regulatory History

    This rulemaking establishes a safety zone for the waters around Pleasure Beach Bridge, Bridgeport, CT. Corresponding regulatory history is discussed below.

    The Coast Guard was made aware on December 9, 2015, of damage sustained to Pleasure Beach Bridge, the result of which created a hazard to navigation. In response, on Tuesday, December 22, 2015, the Coast Guard published a temporary final rule (TFR) entitled, “Safety Zone; Pleasure Beach Bridge, Bridgeport CT” in the Federal Register (80 FR 79480). We received no comments on this rule. The rule expired on January 1, 2016.

    The degraded condition of the Pleasure Beach Bridge structure presents a continued hazard to navigation in the waterway. The Coast Guard is establishing this temporary final rule to mitigate the risk posed by the bridge structure and to allow responsible parties ample time to develop plans to reduce or eliminate the hazard.

    The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. There is insufficient time to publish an NPRM and solicit comments from the public before establishing a safety zone to address the existing hazard to navigation. The nature of the navigational hazard requires the immediate establishment of a safety zone. Publishing an NPRM and delaying the effective date of this rule to await public comment inhibits the Coast Guard's ability to fulfill its statutory mission to protect ports, waterways and the maritime public.

    Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

    III. Legal Authority and Need for Rule

    The legal basis for this temporary rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5 and Department of Homeland Security Delegation No. 0170. 1 which collectively authorize the Coast Guard to define regulatory safety zones.

    On December 9, 2015, the Coast Guard was made aware of damage sustained to Pleasure Beach Bridge, Bridgeport, CT that has created a hazard to navigation. After further analysis of the bridge structure, the Coast Guard concluded that the overall condition of the structure created a continued hazard to navigation. The COTP Sector LIS has determined that the safety zone established by this temporary final rule is necessary to provide for the safety of life on navigable waterways.

    IV. Discussion of the Rule

    The safety zone established by this rule will cover all navigable waters of the entrance channel to Johnsons Creek in the vicinity of Pleasure Beach Bridge, Bridgeport, CT. This safety zone will be bound inside an area that starts at a point on land at position 41-10.2N, 073-10.7W and then east along the shoreline to a point on land at position 41-9.57N, 073-9.54W and then south across the channel to a point on land at position 41-9.52N, 073-9.58W and then west along the shoreline to a point on land at position 41-9.52N, 073-10.5W and then north across the channel back to the point of origin.

    This rule prevents vessels from entering, transiting, mooring, or anchoring within the area specifically designated as a safety zone during the period of enforcement unless authorized by the COTP or designated representative.

    The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and E.O.s related to rulemaking.

    Below we summarize our analyses based on these statutes and E.O.s and we discuss First Amendment rights of protesters.

    A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget. The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The enforcement of this safety zone will be relatively short in duration; (2) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Sector LIS or a designated representative; (3) this safety zone is designed in a way to limit impacts on vessel traffic, permitting vessels to navigate in other portions of the waterway not designated as a safety zone; and (4) the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners to increase public awareness of this safety zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

    This temporary final rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit, anchor, or moor within a safety zone during the period of enforcement, from January 1, 2016 to July 1, 2016. However, this temporary final rule will not have a significant economic impact on a substantial number of small entities for the same reasons discussed in the Regulatory Planning and Review section.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

    Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

    Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M 16475.ID, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This temporary rule involves the establishment of a safety zone. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination, and EA Checklist, WILL BE in the docket for review. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-1123 to read as follows:
    § 165.T01-1123 Safety Zone; Pleasure Beach Bridge, Bridgeport, CT.

    (a) Location. The following area is a safety zone: All navigable waters of the entrance channel to Johnsons Creek in the vicinity of Pleasure Beach Bridge, Bridgeport, CT bound inside an area that starts at a point on land at position 41-10.2N, 073-10.7W and then cast along the shoreline to a point on land at position 41-9.57N, 073-9.54W and then south across the channel to a point on land at position 41-9.52N, 073-9.58W and then west along the shoreline to a point on land at position 41-9.52N, 073-10.5W and then north across the channel back to the point of origin.

    (b) Enforcement period. This rule will be enforced from 12:01 a.m. on January 1, 2016 to 12:01 a.m. on July 1, 2016.

    (c) Definitions. The following definitions apply to this section: A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the COTP, Sector Long Island Sound, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loud hailer. “Official patrol vessels” may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Sector Long Island Sound. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    (d) Regulations. (l) The general regulations contained in § 165.23 apply.

    (2) In accordance with the general regulations in § 165.23, entry into or movement within this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

    (3) Operators of vessels desiring to enter or operate within the safety zone should contact the COTP Sector Long Island Sound at 203-468-4401 (Sector LIS command center) or the designated representative via VHF channel 16 to obtain permission to do so.

    (4) Any vessel given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP Sector Long Island Sound, or the designated on-scene representative.

    (5) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed.

    Dated: December 30, 2015. E.J. Cubanski, III, Captain, U.S. Coast Guard, Captain of the Port Sector Long Island Sound. Editorial note:

    This document was received for publication by the Office of Federal Register on June 20, 2016.

    [FR Doc. 2016-14908 Filed 6-22-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 and 81 [EPA-R04-OAR-2016-0018; FRL-9948-02-Region 4] Air Plan Approval and Air Quality Designation; TN; Redesignation of the Shelby County 2008 8-Hour Ozone Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    On January 19, 2016, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), Air Pollution Control Division, submitted a request for the Environmental Protection Agency (EPA) to redesignate the portion of Tennessee that is within the Memphis, Tennessee-Mississippi-Arkansas (Memphis, TN-MS-AR) 2008 8-hour ozone nonattainment area (hereafter referred to as the “Memphis, TN-MS-AR Area” or “Area”) and a related State Implementation Plan (SIP) revision containing a maintenance plan and base year inventory for the Area. EPA is taking the following separate final actions related to the January 19, 2016, redesignation request and SIP revision: Approving the base year emissions inventory for the Area into the SIP; determining that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS); approving the State's plan for maintaining attainment of the 2008 8-hour ozone NAAQS in the Area, including the motor vehicle emissions budgets (MVEBs) for nitrogen oxides (NOX) and volatile organic compounds (VOCs) for the year 2027 for the Tennessee portion of the Area, into the SIP; and redesignating the Tennessee portion of the Area to attainment for the 2008 8-hour ozone NAAQS. Additionally, EPA finds the MVEBs for the Tennessee portion of the Area adequate for the purposes of transportation conformity.

    DATES:

    This rule will be effective July 25, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0018. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jane Spann, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Spann can be reached by phone at (404) 562-9029 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    On May 21, 2012, EPA designated areas as unclassifiable/attainment or nonattainment for the 2008 8-hour ozone NAAQS that was promulgated on March 27, 2008. See 77 FR 30088. The Memphis, TN-MS-AR Area was designated nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088. The Memphis, TN-MS-AR Area consists of a portion of DeSoto County in Mississippi, all of Shelby County in Tennessee, and all of Crittenden County in Arkansas. At the time of designation, the Memphis, TN-MS-AR Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS. In the final implementation rule for the 2008 8-hour ozone NAAQS (SIP Implementation Rule),1 EPA established ozone nonattainment area attainment dates based on Table 1 of section 181(a) of the Clean Air Act (CAA or Act). This established an attainment date three years after the July 20, 2012, effective date for areas classified as marginal areas for the 2008 8-hour ozone nonattainment designations. Therefore, the Memphis, TN-MS-AR Area's attainment date is July 20, 2015.

    1 This rule, entitled Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements and published at 80 FR 12264 (March 6, 2015), addresses a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM), major new source review (NSR), emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. This rule also addresses the revocation of the 1997 ozone NAAQS and the anti-backsliding requirements that apply when the 1997 ozone NAAQS are revoked.

    Based on the 2008 8-hour ozone nonattainment designation for the Memphis, TN-MS-AR Area, Tennessee was required to develop a nonattainment SIP revision addressing certain Clean Air Act (CAA or Act) requirements. Specifically, pursuant to CAA section 182(a)(3)(B) and section 182(a)(1), the state was required to submit a SIP revision addressing emissions statements and base year emissions inventory requirements, respectively, for its portion of the Area. EPA approved the emissions statements requirements for the Tennessee portion of the Area into the SIP in a final action published on March 5, 2015. See 80 FR 11974.

    On January 19, 2016, TDEC requested that EPA redesignate Tennessee's portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS, and submitted a SIP revision containing a section 182(a)(1) base year emissions inventory and the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the MVEBs for NOX and VOC for the year 2027 for the Tennessee portion of the Area.2 In a notice of proposed rulemaking (NPRM) published on April 19, 2016, EPA proposed to: (1) Approve and incorporate the base year emissions inventory into the SIP as meeting the requirements of section 182(a)(1); (2) determine that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS; (3) approve and incorporate into the Tennessee SIP the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the 2027 MVEBs for NOX and VOC for Tennessee's portion of Memphis, TN-MS-AR Area; and (4) redesignate the Tennessee portion of the Area to attainment for the 2008 8-hour ozone NAAQS. See 81 FR 22948. In that notice, EPA also notified the public of the status of the Agency's adequacy determination for the NOX and VOC MVEBs for Tennessee's portion of Memphis, TN-MS-AR Area. No comments were received on the April 19, 2016, proposed rulemaking. The details of Tennessee's submittal and the rationale for EPA's actions are further explained in the NPRM. See 81 FR 22948 (April 19, 2016).

    2 The Tennessee Department of Environment and Conservation Air Pollution Control Board adopted the SIP revision containing the maintenance plan on January 13, 2016.

    II. What are the effects of these actions?

    Approval of Tennessee's redesignation request changes the legal designation of Shelby County in the Memphis, TN-MS-AR Area, found at 40 CFR 81.325, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Tennessee's associated SIP revision also incorporates a section 182(a)(1) base year emissions inventory and a plan into the SIP for maintaining the 2008 8-hour ozone NAAQS in the Tennessee portion of the Area through 2027. The maintenance plan establishes NOX and VOC MVEBs for 2027 for the Shelby County, Tennessee and includes contingency measures to remedy any future violations of the 2008 8-hour ozone NAAQS and procedures for evaluating potential violations. The MVEBs for the Tennessee portion of the Memphis, TN-MS-AR Area, along with the allocations from the safety margin, are provided in the table below.3

    3 As discussed in the NPRM, the safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. Tennessee chose to allocate a portion of the available safety margin to the NOX and VOC MVEBs for 2027. TDEC has allocated 49.04 tpd of the NOX safety margin to the 2027 NOX MVEB and 13.19 tpd of the VOC safety margin to the 2027 VOC MVEB.

    MVEBs for the Tennessee Portion of the Memphis, TN-MS-AR Area [tpd] 2027 NOX VOC On-Road Emissions 12.51 5.81 Safety Margin Allocated to MVEBs 49.04 13.19 Conformity MVEBs 61.56 19.01 III. Final Action

    EPA is taking a number of final actions regarding Tennessee's January 19, 2016, request to redesignate the Tennessee portion of the Memphis, TN-MS-AR Area to attainment and associated SIP revision. First, EPA is approving and incorporating Tennessee's section 182(a)(1) base year emissions inventory for the Tennessee portion of the Area into the SIP.

    Second, EPA is determining that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS.

    Third, EPA is approving and incorporating the maintenance plan for the Tennessee portion of the Memphis, TN-MS-AR Area, including the NOX and VOC MVEBs for 2027, into the Tennessee SIP. The maintenance plan demonstrates that the Area will continue to maintain the 2008 8-hour ozone NAAQS through 2027.

    Fourth, EPA is determining that Tennessee has met the criteria under CAA section 107(d)(3)(E) for redesignation of the State's portion of the Memphis, TN-MS-AR Area from nonattainment to attainment for the 2008 8-hour ozone NAAQS. On this basis, EPA is approving Tennessee's redesignation request. As mentioned above, approval of the redesignation request changes the official designation of Shelby County, Tennessee for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.

    EPA is also notifying the public that EPA finds the newly-established NOX and VOC MVEBs for the Tennessee portion of the Memphis, TN-MS-AR Area adequate for the purpose of transportation conformity. Within 24 months from this final rule, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).

    IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 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, these actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by state law. For this reason, these actions:

    • Are not significant regulatory actions 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);

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

    • are 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.);

    • do 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);

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

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

    • are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • are 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

    • will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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. These actions are 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 these actions must be filed in the United States Court of Appeals for the appropriate circuit by August 22, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions 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. These actions may not be challenged later in proceedings to enforce their requirements. See section 307(b)(2).

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Air pollution control.

    Dated: June 10, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR parts 52 and 81 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart RR—Tennessee 2. Section 52.2220(e) is amended by adding entries for “2008 8-hour Ozone Maintenance Plan for the Memphis TN-MS-AR Area” and “2008 8-hour Ozone Emissions Inventory for the Memphis TN-MS-AR Area” at the end of the table to read as follows:
    § 52.2220 Identification of plan.

    (e) * * *

    EPA Approved Tennessee Non-Regulatory Provisions Name of non-regulatory SIP provision Applicable geographic or nonattainment area State effective date EPA approval date Explanation *         *         *         *         *         *         * 2008 8-hour Ozone Maintenance Plan for the Memphis TN-MS-AR Area Shelby County 01/13/2016 6/23/2016 [Insert citation of publication] 2008 8-hour Ozone Emissions Inventory for the Memphis TN-MS-AR Area Shelby County 01/13/2016 6/23/2016 [Insert citation of publication]
    PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 3. The authority citation for part 81 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    4. In § 81.343, the table entitled “Tennessee—2008 8-Hour Ozone NAAQS (Primary and secondary)” is amended under “Memphis, TN-MS-AR:” by revising the entry for “Shelby County” to read as follows:
    § 81.343 Tennessee. Tennessee—2008 8-Hour Ozone NAAQS [Primary and secondary] Designated area Designation Date 1 Type Classification Date 1 Type *         *         *         *         *         *         * Memphis, TN-MS-AR: 2 Shelby County 6/23/2016 Attainment *         *         *         *         *         *         * 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.
    [FR Doc. 2016-14807 Filed 6-22-16; 8:45 am] BILLING CODE 6560-50-P
    CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Parts 1230 and 2554 RIN 3045-AA65 Civil Monetary Penalties Inflation Adjustment AGENCY:

    Corporation for National and Community Service.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Corporation for National and Community Service (CNCS) is updating its regulations to reflect required inflation-related increases to the civil monetary penalties in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

    DATES:

    Effective date: This rule is effective August 1, 2016.

    Comment due date: Technical comments may be submitted until July 25, 2016.

    ADDRESSES:

    You may send your comments electronically through the Federal government's one-stop rulemaking Web site at www.regulations.gov. Also, you may mail or deliver your comments to Phyllis Green, Executive Assistant, Office of General Counsel, at the Corporation for National and Community Service, 250 E Street SW., Washington, DC 20525. Due to continued delays in CNCS's receipt of mail, we strongly encourage comments to be submitted online electronically. The TDD/TTY number is 800-833-3722. You may request this notice in an alternative format for the visually impaired.

    FOR FURTHER INFORMATION CONTACT:

    Phyllis Green, Executive Assistant, Office of General Counsel, at 202-606-6709 or email to [email protected] Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Corporation for National and Community Service (CNCS) is a federal agency that engages more than five million Americans in service through its AmeriCorps, Senior Corps, Social Innovation Fund, and Volunteer Generation Fund programs, and leads the President's national call to service initiative, United We Serve. For more information, visit NationalService.gov.

    On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the “Act”) to improve the effectiveness of civil monetary penalties and to maintain the deterrent effect of such penalties. The Act requires agencies to make a “catch-up” adjustment to the level of civil monetary penalties through an interim final rulemaking and to adjust the civil monetary penalties for inflation annually.

    II. Method of Calculation

    CNCS identified two civil monetary penalties in its regulations and calculated the catch-up adjustments as specified in the February 24, 2016, OMB Memorandum of the Heads of Executive Departments and Agencies, M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. A civil monetary penalty under the act is a penalty, fine, or other sanction that is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by federal law and is assessed or enforced by an agency pursuant to Federal law and is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. (See 28 U.S.C. 2461 note).

    The inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October of the year in which the amount of each civil money penalty was most recently established or modified.

    CNCS identified two civil penalties in its regulations: (1) The penalty associated with Restrictions on Lobbying (45 CFR 1230.400) and (2) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 2554.1).

    In 1989, Congress established civil monetary penalties related to Restrictions on Lobbying (Section 319, Pub. L. 101-121; 31 U.S.C. 1352) ranging from $10,000 to $100,000. The multiplier for 1989 is 1.89361. Thus, the new range of possible civil monetary penalties is from $18,936 to $189,361.

    The Program Fraud Civil Remedies Act of 1986 (Pub. L. 99-509) established a civil monetary penalty with an upper limit of $5,000. The multiplier for 1986 is 2.15628. Thus, the new upper limit of the civil monetary penalty is $10,781.

    III. Summary of Final Rule

    This final rule adjusts the civil monetary penalty amounts related to Restrictions on Lobbying (45 CFR 1230.400) and the Program Fraud Civil Remedies Act of 1986 (45 CFR 2554.1). The range of civil monetary penalties related to Restrictions on Lobbying increase from $10,000 to $100,000 to $18,936 to $189,361. The civil monetary penalties for the Program Fraud Civil Remedies Act of 1986 increase from up to $5,000 to up to $10,781.

    IV. Regulatory Procedures A. Determination of Good Cause for Publication Without Notice and Comment

    CNCS finds, under 5 U.S.C. 553(b)(3)(B), that there is good cause to except this rule from the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b). Because CNCS is implementing a final rule pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires CNCS to update its regulations based on a prescribed formula, CNCS has no discretion in the nature or amount of the change to the civil monetary penalties. Therefore, notice and comment for these proscribed updates is impracticable and unnecessary. As an interim final rule, no further regulatory action is required for the issuance of this legally binding rule. If you would like to provide technical comments, however, they may be submitted until July 25, 2016.

    B. Review Under Procedural Statutes and Executive Orders

    CNCS has determined that making technical changes to the amount of civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive Orders that govern rulemaking procedures.

    V. Effective Date

    This rule is effective August 1, 2016. The adjusted civil penalty amounts apply to civil penalties assessed after August 1, 2016 when the violation occurred after November 2, 2015. If the violation occurred prior to November 2, 2015 or a penalty was assessed prior to August 1, 2016, the pre-adjustment civil penalty amounts in effect prior to August 1, 2106 will apply.

    List of Subjects 45 CFR Part 1230

    Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.

    45 CFR Part 2554

    Claims, Fraud, Organization and functions (Government agencies), Penalties.

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

    PART 1230—NEW RESTRICTIONS ON LOBBYING 1. The authority citation for part 12301 continues to read as follows: Authority:

    Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 93-113; 42 U.S.C. 4951, et seq.; 42 U.S.C. 5060

    § 1230.400 [Amended]
    2. Amend § 1230.400 by: a. In paragraphs (a), (b), and (e), removing “$10,000” and adding, in its place, “$18,936” each place it appears. b. In paragraphs (a), (b), and (e), removing “$100,000” and adding, in its place, “$189,361” each place it appears.
    Appendix A to Part 1230 [Amended] 3. Amend appendix A to part 1230 by: a. Removing “$10,000” and adding, in its place, “$18,936” each place it appears. b. Removing “$100,000” and adding, in its place, “$189,361” each place it appears. PART 2554—PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS 4. The authority citation for part 2554 continues to read as follows: Authority:

    Pub. L. 99-509, Secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); 42 U.S.C. 12651c-12651d.

    § 2554.1 [Amended]
    5. Amend § 2554.1 by removing “$5,000” in paragraph (b) and adding, in its place, “$10,781”.
    Dated: June 16, 2016. Jeremy Joseph, General Counsel.
    [FR Doc. 2016-14675 Filed 6-22-16; 8:45 am] BILLING CODE 6050-28-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [FCC 16-70] Service by Email for Notice of Petitions for Review and Appeals AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Communications Commission (Commission) amends its rules to allow and in certain circumstances to require parties to give the Commission notice of lawsuits by email. First, it requires persons petitioning for judicial review who wish to participate in a “judicial lottery” to notify the Commission of the petition by email. This method will allow timely service, and will eliminate security concerns that arise through in-person service. Further, the new rule encourages, but does not require, notice by email for persons who petition for review but do not seek to participate in a lottery. It likewise encourages, but does not require, notice by email for persons who judicially appeal Commission decisions.

    DATES:

    Effective July 25, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Richard Welch, 202-418-7225.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order, FCC 16-70, adopted on June 1, 2016, and released on June 3, 2016. The full text of this document will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554.

    Synopsis

    1. By this order, we revise Section 1.13 of our rules to allow and in certain circumstances require parties to give the Commission notice of lawsuits by email. First, we revise 47 CFR 1.13(a)(1) of our rules to change the procedure by which a party petitioning for review of a Commission decision under 47 U.S.C. 402(a) must notify the Commission in order to take advantage of the random selection procedures described in 28 U.S.C. 2112. That statute provides for a lottery to select a court when parties have petitioned for review of the same FCC decision in more than one court, provided that petitioners serve a copy of the petitions for review on the agency within ten days of issuance of the order under review. 28 U.S.C. 2112(a)(1), (3). Because the procedure is time sensitive due to this ten-day statutory deadline, the Commission has established rules to ensure that its Office of General Counsel receives timely notice of the petition for review. 47 CFR 1.13(a)(1); see Addition of New Section 1.13 to the Commission's Rules of Practice & Procedure, 4 FCC Rcd 2092 (1989).

    2. Until now, those rules have directed petitioners to make that service in person at the Office of General Counsel in the Commission's Washington, DC headquarters. However, that method of service is not easily reconciled with the security protocols that currently apply to other filings with the Commission. We therefore now revise our rules for these situations to require service by email according to specific procedures, as set out in the new rule. These procedures will allow for timely service on the Commission without raising the issues with respect to Commission security requirements that are currently presented by service in person. We also expect that this method of service will be more convenient for most petitioners and their counsel, especially those located outside of the Washington, DC metropolitan area. For parties who are not represented by counsel and who are unable to use email to effect service, we have retained a method to serve notice in person on the Office of General Counsel. Such parties must telephone prior to service to make arrangements, and are advised to do so at least a day before service, keeping in mind the ten-day statutory deadline by which service must be complete.

    3. For the convenience of parties and the Commission, we also revise our rules to authorize—but not require—email notice of lawsuits against the Commission under 47 U.S.C. 402(b). Specifically, we revise section 1.13(b) of our rules, which applies to parties appealing certain licensing-related FCC actions under 47 U.S.C. 402(b), to authorize and encourage service of notices of appeal on the General Counsel by email. See 47 U.S.C. 402(c) (requiring notice on Commission); cf. Fed. R. App. P. 25(c)(1)(D) (permitting electronic service with consent of party). Because notices of appeal under section 402(b) are not as time-sensitive as lottery proceedings under 28 U.S.C. 2112, however, we do not require service by email, and parties may use non-electronic means of service, such as U.S. mail, as permitted by the Federal Rules of Appellate Procedure and any applicable local rules.

    4. Finally, we amend the note to section 1.13 to also encourage service by email of petitions for review under 47 U.S.C. 402(a) by petitioners that are not seeking to participate in a judicial lottery pursuant to 28 U.S.C. 2112. Although there is no requirement under the Federal Rules of Appellate Procedure or section 402 for parties to serve the Commission with such petitions for review, service by email will assist the Commission in timely responding to litigation. Where service by email is impracticable for such petitioners, the Commission requests service by non-electronic means.

    5. Because this is a revision to a procedural rule, notice and comment is not required in advance of its adoption. See 5 U.S.C. 553(b). For the same reason, we are also not required to perform a regulatory flexibility analysis, see 5 U.S.C. 603(a), or to submit the rule for review under the Congressional Review Act, see 5 U.S.C. 804(3)(C). Authority for this rulemaking is contained in 47 U.S.C. 154(i) and 154(j) and 28 U.S.C. 2112(a)(2).

    List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Lawyers, Litigation, and Telecommunications.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 is revised to read as follows: Authority:

    47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.

    2. Section 1.13 is revised to read as follows:
    § 1.13 Filing of petitions for review and notices of appeals of Commission orders.

    (a) Petitions for review involving a judicial lottery pursuant to 28 U.S.C. 2112(a). (1) This paragraph pertains to each party filing a petition for review in any United States court of appeals of a Commission Order pursuant to 47 U.S.C. 402(a) and 28 U.S.C. 2342(1), that wishes to avail itself of procedures established for selection of a court in the case of multiple petitions for review of the same Commission action, pursuant to 28 U.S.C. 2112(a). Each such party shall, within ten days after the issuance of that order, serve on the Office of General Counsel, by email to the address [email protected], a copy of its petition for review as filed and date-stamped by the court of appeals within which it was filed. Such copies of petitions for review must be received by the Office of General Counsel by 5:30 p.m. Eastern Time on the tenth day of the filing period. A return email from the Office of General Counsel acknowledging receipt of the petition for review will constitute proof of filing. Upon receipt of any copies of petitions for review according to these procedures, the Commission shall follow the procedures established in section 28 U.S.C. 2112(a) to determine the court in which to file the record in that case.

    (2) If a party wishes to avail itself of procedures established for selection of a court in the case of multiple petitions for review of the same Commission action, pursuant to 28 U.S.C. 2112(a), but is unable to use email to effect service as described in paragraph (a)(1) of this section, it shall instead, within ten days after the issuance of the order on appeal, serve a copy of its petition for review in person on the General Counsel in the Office of General Counsel, 445 12th Street, SW., Washington, DC 20554. Only parties not represented by counsel may use this method. Such parties must telephone the Litigation Division of the Office of General Counsel beforehand to make arrangements at 202-418-1740. Parties are advised to call at least one day before service must be effected.

    (3) Computation of time of the ten-day period for filing copies of petitions for review of a Commission order shall be governed by Rule 26 of the Federal Rules of Appellate Procedure. The date of issuance of a Commission order for purposes of filing copies of petitions for review shall be the date of public notice as defined in § 1.4(b) of the Commission's Rules, 47 CFR 1.4(b).

    (b) Notices of appeal pursuant to 47 U.S.C. 402(b). Copies of notices of appeals filed pursuant to 47 U.S.C. 402(b) shall be served upon the General Counsel. The FCC consents to—and encourages—service of such notices by email to the address [email protected]

    Note: For administrative efficiency, the Commission requests that any petitioner seeking judicial review of Commission actions pursuant to 47 U.S.C. 402(a) serve a copy of its petition on the General Counsel regardless of whether it wishes to avail itself of the procedures for multiple appeals set forth in 47 U.S.C. 2112(a). Parties are encouraged to serve such notice by email to the address [email protected]

    [FR Doc. 2016-14096 Filed 6-22-16; 8:45 am] BILLING CODE 6712-01-P
    81 121 Thursday, June 23, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7271; Directorate Identifier 2015-NM-099-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. This proposed AD was prompted by heavy corrosion found on the wing rear spar lower girder. This proposed AD would require inspections of the affected areas, modification of the wing trailing edge lower skin panels, and corrective actions if necessary. We are proposing this AD to detect and correct corrosion of the wing rear spar lower girder. This condition could reduce the load-carrying capability of the wing, possibly resulting in structural failure and loss of the airplane.

    DATES:

    We must receive comments on this proposed AD by August 8, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    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-2016-7271; 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 Operations 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:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM 116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    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-2016-7271; Directorate Identifier 2015-NM-099-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 based on 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

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0113, dated June 22, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.28 Mark 0070, and 0100 airplanes. The MCAI states:

    On an F28 Mark 0070 aeroplane, heavy corrosion was found on the wing rear spar lower girder. At small spots the effective thickness of the vertical flange of the lower girder was almost lost. Subsequently, a number of inspections were accomplished on other aeroplanes to provide additional information on possible corrosion in this area. Because the rear spar lower girder between Wing Stations (WSTA) 9270 and 11794 is hidden from view by the inboard and outboard aileron balancing plates, it is possible that corrosion in this area remains undetected during the zonal inspections in zone 536 and 636 (MRB tasks 062505-00-01 and 062605-00-01).The heavy corrosion was not only found in the area between WSTA 9270 and 11794, but also in the area where the rear spar lower girder is directly visible.

    This condition, if not detected and corrected, reduces the load carrying capability of the wing, possibly resulting in structural failure and loss of the aeroplane.

    To address this potential unsafe condition, Fokker Services issued Service Bulletin (SB) SBF100-57-049 to provide instructions to detect and remove corrosion and to modify the wing trailing edge lower skin panels into access panels. SBF100-57-050 was issued to provide repair instructions.

    For the reasons described above, this [EASA] AD requires inspections of the affected areas and, depending on findings, accomplishment of applicable corrective action(s). This [EASA] AD also requires modification of the wing trailing edge lower skin panels into access panels [This modification is to provide ease of access for later inspection and repairs in the affected areas.], and reporting of the results of the inspections to Fokker Services.

    More information on this subject can be found in Fokker Services All Operators Message AOF100.197.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7271.

    Related Service Information Under 1 CFR Part 51

    We reviewed Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, which describes procedures for an inspection for corrosion of certain wing rear spar lower girder areas, modification of the wing trailing edge lower skin panels, and corrective actions if necessary. We also reviewed Fokker Service Bulletin SBF100-57-050, Revision 1, dated May 19, 2015, which describes procedures for repair of the wing spar. 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.

    FAA's Determination and Requirements of This 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 the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an 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 affects 8 airplanes of U.S. registry.

    We also estimate that it would take about 35 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 $1,680 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $37,240, or $4,655 per product.

    In addition, we estimate that any necessary follow-on actions would take about 372 work-hours and require parts costing $7,600, for a cost of $39,220 per product. We have no way of determining the number of aircraft that might need this action.

    We also estimate that it would take about 1 work-hour per product for reporting. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this reporting on U.S. operators to be $680, or $85 per product.

    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this proposed AD is 2120-0056. The paperwork cost associated with this proposed AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this proposed AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

    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): Fokker Services B.V.: Docket No. FAA-2016-7271; Directorate Identifier 2015-NM-099-AD. (a) Comments Due Date

    We must receive comments by August 8, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes, certificated in any category.

    (d) Subject

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

    (e) Reason

    This AD was prompted by heavy corrosion found on the wing rear spar lower girder. We are issuing this AD to detect and correct corrosion of the wing rear spar lower girder. This condition could reduce the load-carrying capability of the wing, possibly resulting in structural failure and loss of the airplane.

    (f) Compliance

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

    (g) Inspection of the Wing Rear Spar Lower Girder From Wing Station (WSTA) 9270 to 11794

    Within 1,000 flight cycles or 12 months, whichever occurs first after the effective date of this AD, accomplish a one-time detailed visual inspection for corrosion of the wing rear spar lower girder area from WSTA 9270 to 11794, in accordance with Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (h) Modification of Wing Trailing Edge

    Within 1,000 flight cycles or 12 months, whichever occurs first after the effective date of this AD, modify the wing trailing edge lower skin panels into access panels, in accordance with Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (i) Inspection of the Wing Rear Spar Lower Girder From WSTA 2635 to 8700 and WSTA 11794 to 12975

    Within 2,000 flight cycles or 24 months, whichever occurs first after the effective date of this AD, accomplish a one-time detailed visual inspection for corrosion of the wing rear spar lower girder area from WSTA 2635 to 8700 and WSTA 11794 to 12975, in accordance with Part 2 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015.

    (j) Modification of Wing Rear Spar Lower Girder

    (1) If during any inspection required by paragraph (g) or (i) of this AD, as applicable, corrosion is found, before further flight, remove the corrosion and determine the remaining thickness at the damaged spots, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015. If the remaining thickness at the damaged spots, as determined by this paragraph, is not within the tolerances specified in Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(1) of this AD: Before further flight, accomplish the applicable corrective actions as defined in paragraph (j)(1)(i) or (j)(1)(ii) of this AD, as applicable.

    (i) For corrosion damage found outboard of WSTA 8200 only: Repair in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-050, Revision 1, dated May 19, 2015.

    (ii) Repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker Services B.V.'s EASA Design Organization Approval (DOA).

    (2) If during any inspection required by paragraph (g) or (i) of this AD, only damage to the surface protection is found, or if the remaining thickness at the damaged spots, as determined by paragraph (j)(1) of this AD, is within the tolerances specified in Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(1) of this AD: Before further flight, restore the surface protection in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, except as required by paragraph (k)(2) of this AD.

    (k) Exceptions to Service Information Specifications

    (1) Where Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, specifies the acceptability of smaller thickness or customized repairs: Before further flight, obtain acceptable tolerances, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Fokker Services B.V.'s EASA DOA.

    (2) Where Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, specifies contacting Fokker for a customized repair: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Fokker Services B.V.'s EASA DOA.

    (l) Reporting Requirements

    Submit a report of the findings both positive and negative of the inspection required by paragraph (g) and (i) of this AD to Fokker Services, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-57-049, dated March 24, 2015, at the time specified in paragraph (l)(1) or (l)(2) of this AD.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

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

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0113, dated June 22, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7271.

    (2) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on June 14, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-14754 Filed 6-22-16; 8:45 am] BILLING CODE 4910-13-P3
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2014-0213; FRL-9948-16-Region 7] Approval and Promulgation of Implementation Plans; State of Iowa; Infrastructure SIP Requirements for the 1997 and 2006 Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards (NAAQS), and the Adoption of the 1997 PM2.5 Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of two State Implementation Plan (SIP) submissions from the State of Iowa for the Infrastructure SIP Requirements for the 1997 and 2006 Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards (NAAQS). Infrastructure SIPs address the applicable requirements of Clean Air Act (CAA) section 110, which requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by the EPA. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. This action also proposes to approve the adoption of the 1997 PM2.5 standard.

    On September 8, 2011, EPA issued a Finding of Failure to Submit a Complete State Implementation Plan for several states, including Iowa. With respect to Iowa, the Finding of Failure to Submit covered the following 2006 PM2.5 NAAQS infrastructure requirements: 110(a)(2)(A)-(C), (D)(i)(II) (prong 3 only), (E)-(H) and (J)-(M). This proposal to approve Iowa's infrastructure SIP for the 2006 PM2.5 NAAQS addresses the September 8, 2011 finding.

    DATES:

    Comments must be received on or before July 25, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2014-0213, 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:

    Heather Hamilton, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-7039; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. A detailed technical support document (TSD) is included in this rulemaking docket to address the following: A description of CAA section 110(a)(1) and (2) infrastructure SIPs; the applicable elements under sections 110(a)(1) and (2); EPA's approach to the review of infrastructure SIP submissions, and EPA's evaluation of how Iowa addressed the relevant elements of sections 110(a)(1) and (2). This section provides additional information by addressing the following questions:

    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?

    The EPA is proposing to approve two submissions from the State of Iowa: The infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS received on March 31, 2008 and July 29, 2013. The SIP submissions from Iowa address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 1997 and 2006 PM2.5 NAAQS. The March 31, 2008 SIP submission also included the state adoption of the 1997 PM2.5 standard. The EPA is also proposing to approve this in today's action.

    For the 1997 PM2.5 NAAQS, the EPA took action to address section 110(a)(2)(D)(i)(I)—prongs 1 and 2 for Iowa. (72 FR 10380, March 8, 2007, as revised in 76 FR 48208, August 8, 2011). Therefore, in this proposal, we are not acting on these portions since they have already been acted upon by the EPA.

    A TSD is included as part of the docket to discuss the details of this proposal.

    II. Have the requirements for approval of a SIP revision 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, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. What action is EPA taking?

    The EPA is proposing to approve two submissions from the State of Iowa: The infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS received on March 31, 2008 and July 29, 2013. The SIP submissions from Iowa address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 1997 and 2006 PM2.5 NAAQS. This action also proposes to approve the adoption of the 1997 PM2.5 standard.

    The EPA's analysis of these submissions is addressed in a TSD as part of the docket to discuss the proposal.

    Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in those submissions or referenced in Iowa's SIP, the EPA believes that Iowa's SIP will meet all applicable required elements of sections 110(a)(1) and (2) with respect to the 1997 and 2006 PM2.5 NAAQS.

    We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

    Statutory and Executive Order Review

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

    • Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    Statutory Authority

    The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Prevention of significant deterioration, Incorporation by reference, Intergovernmental relations, Particulate Matter, Reporting and recordkeeping requirements.

    Dated: June 15, 2016. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 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 Q—Iowa 2. Section 52.820 is amended by adding entries (43) and (44) in numerical order to table (e) to read as follows:
    § 52.820 Identification of plan.

    (e) * * *

    EPA-Approved Iowa Nonregulatory SIP Provisions Name of non-regulatory
  • SIP revision
  • Applicable
  • geographic or
  • nonattainment
  • area
  • State submittal date EPA approval date Explanation
    *         *         *         *         *         *         * (43) Sections 110(a)(1) and (2) Infrastructure Requirements 1997 PM2.5 NAAQS Statewide 3/21/08 6/23/16 [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), prong 3, (E), (F), (G), (H), (J), (K), (L), and (M). 110(a)(2)(I) is not applicable. (44) Sections 110(a)(1) and (2) Infrastructure Requirements 2006 PM2.5 NAAQS Statewide 7/23/13 6/23/16 [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), prong 3, (E), (F), (G), (H), (J), (K), (L), and (M). 110(a)(2)(I) is not applicable.
    [FR Doc. 2016-14897 Filed 6-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0824; FRL-9948-22-Region 5] Air Plan Approval; Ohio; Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of the state implementation plan (SIP) submission from Ohio regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    Comments must be received on or before July 25, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0824 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, 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, 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:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected].

    SUPPLEMENTARY INFORMATION:

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

    I. What is the background of this SIP submission? II. What guidance is EPA using to evaluate this SIP submission? III. What is the result of EPA's review of this SIP submission? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission? A. What state SIP submission does this rulemaking address?

    This rulemaking addresses a submission from the Ohio Environmental Protection Agency (OEPA), describing its infrastructure SIP for the 2012 PM2.5 NAAQS, dated December 4, 2015.

    B. Why did the state make this SIP submission?

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

    EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo) and has issued additional guidance documents, the most recent on September 13, 2013, “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” (2013 Memo). The SIP submission referenced in this rulemaking pertains to the applicable requirements of section 110(a)(1) and (2), and addresses the 2012 PM2.5 NAAQS. To the extent that the prevention of significant deterioration (PSD) program is non-NAAQS specific, a narrow evaluation of other NAAQS will be included in the appropriate sections.

    C. What is the scope of this rulemaking?

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

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

    This rulemaking will not cover four substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”); and (iv) transport provisions under section 110(a)(2)(D). Instead, EPA has the authority to, and plans to, address each one of these substantive areas in separate rulemakings. A detailed history and interpretation of infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (see 79 FR 27241 at 27242-27245).

    II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance for this infrastructure SIP submission is embodied in the 2007 Memo. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. EPA issued additional guidance documents, the most recent being the 2013 Memo, which further clarifies aspects of infrastructure SIPs that are not NAAQS specific.

    III. What is the result of EPA's review of this SIP submission?

    As noted in the 2013 Memo, pursuant to section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. OEPA provided the opportunity for public comment for its 2012 PM2.5 NAAQS infrastructure SIP submission during a public hearing held on November 23, 2015. The state did not receive any comments during the comment period. EPA is soliciting comment on our evaluation of the state's infrastructure SIP submission in this notice of proposed rulemaking. OEPA provided detailed synopses of how its SIP submission meets each of the requirements in section 110(a)(2) for the 2012 PM2.5 NAAQS, as applicable. The following review evaluates the state's submission.

    A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.1 In the context of an infrastructure SIP, EPA is not evaluating whether the existing SIP provisions satisfy nonattainment planning requirements. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

    1 See, e.g., EPA's final rule on “National Ambient Air Quality Standards for Lead.” 73 FR 66964 at 67034.

    Ohio Revised Code (ORC) 3704.03 provides the Director of Ohio EPA with the authority to develop rules and regulations necessary to meet state and Federal ambient air quality standards. Ohio regulates directly emitted particulate matter through the rules in SIP-approved Ohio Administrative Code (OAC) Chapter 3745-17. Ohio also has SIP-approved rules regulating emissions of specific precursors to PM2.5. For example, OAC 3745-14 provides for the direct regulation of nitrogen oxides (NOX) emissions, and OAC 3745-18 provides for the direct regulation of sulfur dioxide (SO2) emissions. EPA proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2012 PM2.5 NAAQS.

    As previously noted, EPA is not, in this action, proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).

    B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. EPA determines that Ohio: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

    OEPA continues to operate an air monitoring network. EPA approved Ohio's 2015-2016 Annual Air Monitoring Network Plan, including the plan for PM2.5. OEPA enters air monitoring data into AQS, and the state provides EPA with prior notification when changes to its monitoring sites or network plan are being considered. EPA proposes to find that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2012 PM2.5 NAAQS.

    C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures; PSD

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and NNSR programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

    The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify NOX as a precursor to ozone in the PSD program; (iii) identification of precursors to PM2.5 and accounting for condensables in the PSD program; (iv) PM2.5 increments in the PSD program; and, (v) greenhouse gas (GHG) permitting and the “Tailoring Rule.” 2

    2 In EPA's April 28, 2011, proposed rulemaking for infrastructure SIPS for the 1997 ozone and PM2.5 NAAQS, we stated that each state's PSD program must meet applicable requirements for evaluation of all regulated NSR pollutants in PSD permits (see 76 FR 23757 at 23760). This view was reiterated in EPA's August 2, 2012, proposed rulemaking for infrastructure SIPs for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In other words, if a state lacks provisions needed to adequately address NOX as a precursor to ozone, PM2.5 precursors, condensable particulate matter, PM2.5 increments, or the Federal GHG permitting thresholds, the provisions of section 110(a)(2)(C) requiring a suitable PSD permitting program must be considered not to be met irrespective of the NAAQS that triggered the requirement to submit an infrastructure SIP, including the 2010 NO2 NAAQS.

    Sub-Element (i): Enforcement of SIP Measures

    Ohio EPA maintains an enforcement program to ensure compliance with SIP requirements. ORC 3704.03(R) provides the Director with the authority to enforce rules “consistent with the purpose of the air pollution control laws.” SIP-approved ORC 3704.03 provides the Director with the authority to continue to implement Ohio's minor NSR and major source PSD program. EPA proposes that Ohio has met the SIP enforcement requirements of section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (ii): PSD Provisions That Explicitly Identify NOX as a Precursor to Ozone in the PSD Program

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (see 70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone (70 FR 71612 at 71679, 71699-71700).

    The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including the specification of NOX as a precursor to ozone provisions, by June 15, 2007 (70 FR 71612 at 71683).

    EPA approved revisions to Ohio's PSD SIP reflecting these requirements on October 28, 2014 (79 FR 64119), and therefore, Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (iii): Identification of Precursors to PM2.5 and Accounting for Condensables in the PSD Program

    On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In the 2008 NSR Rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that VOCs are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

    The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tpy of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011 (see 73 FR 28321 at 28341).3

    3 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, Part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). As the subpart 4 provisions apply only to nonattainment areas, EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR rule in order to comply with the court's decision. Accordingly, EPA's approval of Ohio's infrastructure SIP as to elements (C), (D)(i)(II), or (J) with respect to the PSD requirements promulgated by the 2008 implementation rule does not conflict with the court's opinion. The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for condensables in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required to be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).

    EPA approved revisions to Ohio's PSD SIP reflecting these requirements on October 28, 2014 (79 FR 64119), and therefore Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (iv): PM2.5 Increments in the PSD Program

    On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included in Table 1 below.

    Table 1—PM2.5 Increments Established by the 2010 NSR Rule in Micrograms per Cubic Meter Annual
  • arithmetic mean
  • 24-Hour
  • max
  • Class I 1 2 Class II 4 9 Class III 8 18

    The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 as October 20, 2011. These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i).

    On October 28, 2014 (79 FR 64119), EPA finalized approval of the applicable PSD revisions for Ohio, therefore Ohio has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (v): GHG Permitting and the “Tailoring Rule”

    With respect to Elements C and J, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Ohio has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also found that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, EPA is no longer applying EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant: (I) That the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase from a modification (see 40 CFR 51.166(b)(48)(v)).

    EPA will review the Federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

    At present, Ohio's SIP is sufficient to satisfy elements C, D(i)(II), and J with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Ohio PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy elements C, (D)(i)(II), and J. The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.

    For the purposes of the 2012 PM2.5 NAAQS infrastructure SIPs, EPA reiterates that NSR reform regulations are not within the scope of these actions. Therefore, we are not taking action on existing NSR reform regulations for Ohio. EPA approved Ohio's minor NSR program on January 22, 2003 (68 FR 2909), and since that date, OEPA and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2012 PM2.5 NAAQS.

    Certain sub-elements in this section overlap with elements of section 110(a)(2)(D)(i) and section 110(a)(2)(J). These links will be discussed in the appropriate areas below.

    D. Section 110(a)(2)(D)—Interstate Transport

    Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. EPA is not taking action on this infrastructure element in regards to the 2012 PM2.5 NAAQS and will do so in a future rulemaking.

    Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.

    EPA notes that Ohio's satisfaction of the applicable PSD requirements for the 2012 PM2.5 NAAQS has been detailed in the section addressing section 110(a)(2)(C). EPA notes that the actions in that section related to PSD are consistent with the actions related to PSD for section 110(a)(2)(D)(i)(II), and they are reiterated below.

    EPA has previously approved revisions to Ohio's SIP that meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: (1) Explicitly identify NOX as a precursor to ozone, (2) explicitly identify SO2 and NOX as precursors to PM2.5, and (3) regulate condensable particulate matter in applicability determinations and in establishing emissions limits. EPA has also previously approved revisions to Ohio's SIP that incorporate the PM2.5 increments and the associated implementation regulations including the major source baseline date, trigger date, and PM2.5 significance level per the 2010 NSR Rule. Ohio's SIP contains provisions that adequately address the 2012 PM2.5 NAAQS.

    With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2013 Memo states that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. In this rulemaking, EPA is not proposing to approve or disapprove Ohio's satisfaction of the visibility protection requirements of section 110(a)(2)(D)(i)(II) for the 2010 NO2 or SO2 NAAQs. Instead, EPA will evaluate Ohio's compliance with these requirements in a separate rulemaking.4

    4 Ohio does have an approved regional haze plan for non-EGUs. Ohio's plan for EGUs relied on the Clean Air Interstate Rule that has been recently superseded by the Cross State Air Pollution Rule to which Ohio EGU sources are also subject.

    Section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 and section 115 (relating to interstate and international pollution abatement, respectively).

    Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.

    Ohio has provisions in its SIP-approved OAC Chapter 3745-31, which is consistent with 40 CFR 51.166(q)(2)(iv), requiring new or modified sources to notify neighboring states of potential negative air quality impacts, and has referenced this program as having adequate provisions to meet the requirements of section 126(a). EPA is proposing that Ohio has met the infrastructure SIP requirements of section 126(a) with respect to the 2012 PM2.5 NAAQS. Ohio does not have any obligations under any other subsection of section 126, nor does it have any pending obligations under section 115. EPA, therefore, is proposing that Ohio has met all applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii).

    E. Section 110(a)(2)(E)—Adequate Resources

    This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues. Section 110(a)(2)(E)(ii) also requires each state to comply with the requirements respecting state boards under section 128.

    Sub-Element (i) and (iii): Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues

    At the time of its submission, OEPA included its most recent biennial budget with its submittal, which details the funding sources and program priorities addressing the required SIP programs. OEPA has routinely demonstrated that it retains adequate personnel to administer its air quality management program, and Ohio's environmental performance partnership agreement with EPA documents certain funding and personnel levels at OEPA. As discussed in previous sections, ORC 3704.03 provides the legal authority under state law to carry out the SIP. EPA proposes that Ohio has met the infrastructure SIP requirements of these portions of section 110(a)(2)(E) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (ii): State Board Requirements Under Section 128 of the CAA

    Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

    OEPA does not have a board that has the authority to approve enforcement orders or permitting actions as outlined in section 128(a)(1) of the CAA; instead, this authority rests with the Director of OEPA. Therefore, section 128(a)(1) of the CAA is not applicable in Ohio.

    Under section 128(a)(2), the head of the executive agency with the power to approve enforcement orders or permits must adequately disclose any potential conflicts of interest. In its June 7, 2013, submission, OEPA notes that EPA has previously approved provisions into Ohio's SIP addressing these requirements (see 46 FR 57490). Notably, ORC 102: Public Officers—Ethics contains provisions that require the Director of OEPA (and his/her delegate) to file an annual statement with the ethics committee including potential conflicts of interest; furthermore, this annual filing is subject to public inspection. Therefore, EPA proposes that Ohio has met the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2012 PM2.5 NAAQS.

    F. Section 110(a)(2)(F)—Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

    OEPA district offices and local air agencies are currently required to witness 50% of all source testing and review 100% of all tests. EPA-approved rules in OAC 3745-15 contain provisions for the submission of emissions reports, and OAC 3745-77 and OAC 3745-31 provide requirements for recordkeeping by sources. EPA recognizes that Ohio has routinely submitted quality assured analyses and data for publication, and therefore proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 2012 PM2.5 NAAQS.

    G. Section 110(a)(2)(G)—Emergency Powers

    This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. The 2013 Memo states that infrastructure SIP submissions should specify authority, vested in an appropriate official, to restrain any source from causing or contributing to emissions which present an imminent and substantial endangerment to public health or welfare, or the environment.

    The regulations at OAC 3745-25 contain provisions which allow the Director of OEPA to determine the conditions that comprise air pollution alerts, warnings, and emergencies. Moreover, the rules contained in OAC 3745-25 provide the requirement to implement emergency action plans in the event of an air quality alert or higher. EPA proposes that Ohio has met the applicable infrastructure SIP requirements for this portion of section 110(a)(2)(G) with respect to the 2012 PM2.5 NAAQS.

    H. Section 110(a)(2)(H)—Future SIP Revisions

    This section requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or to an EPA finding that the SIP is substantially inadequate.

    As previously mentioned, ORC 3704.03 provides the Director of OEPA with the authority to develop rules and regulations necessary to meet ambient air quality standards in all areas in the state as expeditiously as practicable, but not later than any deadlines applicable under the CAA. ORC 3704.03 also provides the Director of OEPA with the authority to develop programs for the prevention, and abatement of air pollution. EPA proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(H) with respect to the 2012 PM2.5 NAAQS.

    I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions UnderPart D

    The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas.

    EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

    J. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; PSD; Visibility Protection

    The evaluation of the submission from Ohio with respect to the requirements of section 110(a)(2)(J) are described below.

    Sub-Element (i): Consultation With Government Officials

    States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

    OEPA actively participates in the regional planning efforts that include both the state rule developers as well as representatives from the FLMs and other affected stakeholders. The FLMs are also included in OEPA's interested party lists which provide announcements of draft and proposed rule packages. OAC 3745-31-06 is a SIP-approved rule which requires notification and the availability of public participation related to NSR actions; notification is provided to the general public, executives of the city or county where the source is located, other state or local air pollution control agencies, regional land use planning agencies, and FLMs. OAC 3704.03(K) is a SIP-approved rule that which requires giving reasonable public notice and conducting public hearings on any plans for the prevention, control, and abatement of air pollution that the Director of OEPA is required to submit to EPA. Additionally, Ohio is an active member of the Lake Michigan Air Director's Consortium (LADCO). Therefore, EPA proposes that Ohio has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2012 PM2.5 NAAQS.

    Sub-Element (ii): Public Notification

    Section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and must enhance public awareness of measures that can be taken to prevent exceedances.

    OEPA maintains portions of its Web site specifically for issues related to the 2012 PM2.5 NAAQS.5 The information contained in these pages includes background on the health effects of each of these pollutants, the areas of most concern, and the strategies that the state has been taking to address the elevated levels, if any, of the pollutants. OEPA also actively populates EPA's AIRNOW program, and prepares annual data reports from its complete monitoring network. EPA proposes that Ohio has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2012 PM2.5 NAAQS.

    5 See http://www.epa.ohio.gov/dapc/sip/sip.aspx.

    Sub-Element (iii): PSD

    States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Ohio's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the actions for those sections are consistent with the actions for this portion of section 110(a)(2)(J).

    Therefore, Ohio has met all of the infrastructure SIP requirements for PSD associated with section 110(a)(2)(J) for the 2012 PM2.5 NAAQS.

    Sub-Element (iv): Visibility Protection

    With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIP for the 2012 PM2.5 NAAQS.

    K. Section 110(a)(2)(K)—Air Quality Modeling/Data

    SIPs must provide for performing air quality modeling for predicting effects on air quality of emissions from any NAAQS pollutant and submission of such data to EPA upon request.

    OEPA reviews the potential impact of major and some minor new sources, consistent with appendix W of 40 CFR parts 51 and 52 “Guidelines on Air Quality Models,” as well as OEPA Engineering Guide 69. These modeling data are available to EPA upon request. The regulatory requirements related to PSD modeling can be found in SIP-approved rule OAC 3745-31-18. Ohio's authority to require modeling conducted by other entities, e.g., applicants, and the state's authority to perform modeling for attainment demonstrations can be found in SIP-approved ORC 3704.03(F). EPA proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2012 PM2.5 NAAQS.

    L. Section 110(a)(2)(L)—Permitting Fees

    This section requires SIPs to mandate each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.

    OEPA implements and operates the title V permit program, which EPA approved on August 15, 1995 (60 FR 42045); revisions to the program were approved on November 20, 2003 (68 FR 65401). Additional rules that contain the provisions, requirements, and structures associated with the costs for reviewing, approving, implementing, and enforcing various types of permits can be found in ORC 3745.11. EPA proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2012 PM2.5 NAAQS.

    M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities

    States must consult with and allow participation from local political subdivisions affected by the SIP. OEPA follows approved procedures for allowing public participation, consistent with OAC 3745-47, which is part of the approved SIP. Consultation with local governments is authorized through ORC 3704.03(B). OEPA provides a public participation process for all stakeholders that includes a minimum of a 30-day comment period and a public hearing for all SIP related actions. EPA proposes that Ohio has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2012 PM2.5 NAAQS.

    IV. What action is EPA taking?

    EPA is proposing to approve most elements of the submission from OEPA certifying that its current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2012 PM2.5 NAAQS. EPA's proposed actions for the state's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) are contained in the table below.

    Element 2012
  • PM2.5
  • (A): Emission limits and other control measures A (B): Ambient air quality monitoring and data system A (C): Program for enforcement of control measures A (D)1: Interstate Transport—Significant contribution NA (D)2: Interstate Transport-interfere with maintenance NA (D)3: PSD A (D)4: Visibility NA (D)5: Interstate and International Pollution Abatement A (E): Adequate resources A (E): State boards A (F): Stationary source monitoring system A (G): Emergency power A (H): Future SIP revisions A (I): Nonattainment area plan or plan revisions under part D + (J)1: Consultation with government officials A (J)2: Public notification A (J)3: PSD A (J)4: Visibility protection + (K): Air quality modeling and data A (L): Permitting fees A (M): Consultation and participation by affected local entities A

    In the above table, the key is as follows:

    A Approve. NA No Action/Separate Rulemaking. + Not germane to infrastructure SIPs. 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 CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: June 14, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2016-14894 Filed 6-22-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2011-0698; FRL-9948-00-Region 5] Approval and Promulgation of Air Quality Implementation Plans; Indiana; Redesignation of the Indiana Portion of the Louisville Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; supplemental.

    SUMMARY:

    The Environmental Protection Agency (EPA) is issuing a supplement to its July 11, 2013, proposed approval of Indiana's request to redesignate the Indiana portion of the Louisville, Indiana-Kentucky, area to attainment for the 1997 annual national ambient air quality standard (NAAQS or standard) for fine particulate matter (PM2.5). After EPA's proposed redesignation in 2013, an audit of the Kentucky monitoring program identified problems which invalidated monitoring data for 2012 and the beginning of 2013. Because of this invalid data, the area could not meet the requirement that the entire area must demonstrate attainment of the standard using the most current three years of data. This supplemental proposal provides new quality-assured, quality-controlled data for the most recent three years of data showing that the entire area attains the 1997 PM2.5 standard. In the supplemental proposal EPA is proposing that the entire Louisville area is attaining the 1997 PM2.5 NAAQS based on the most recent three years of data. EPA also discusses the maintenance plan out-year emission projections, and the Cross-State Air Pollution Rule (CSAPR) remanded budgets impact on the Louisville area—because the status of these issues has changed from the initial proposal to now. EPA is seeking comment only on the issues raised in this supplemental proposal, and is not re-opening for comment other issues raised in the July 11, 2013, proposed approval.

    DATES:

    Comments must be received on or before July 25, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0698 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, 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, 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:

    Carolyn Persoon, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8290, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is the background for the supplemental proposal? II. On what specific issues is EPA taking comment? A. Louisville Area Design Values for 2013-2015; Entire Area Monitoring Attainment B. Demonstration of Maintenance C. CAIR and CSAPR III. Summary of Proposed Actions IV. Statutory and Executive Order Reviews I. What is the background for the supplemental proposal?

    On June 16, 2011, the Indiana Department of Environmental Management (IDEM) submitted a request for EPA to approve the redesignation of the Indiana portion of the Louisville (KY-IN) (Madison Township, Indiana, Jefferson County, Kentucky and Clark and Floyd Counties, Indiana) nonattainment area to attainment of the 1997 PM2.5 annual standard. Indiana's June 16, 2011, redesignation submittal contained complete, quality-assured and certified air monitoring data for the years 2008-2010.

    On July 11, 2013, EPA proposed to determine that the Indiana portion of the Louisville area had met the requirements for redesignation under section 107(d)(3)(E) of the Clean Air Act (CAA) (78 FR 41735). This proposal was based upon our review of ambient air monitoring data from 2009-2011, and preliminary data from 2012. It contained several related actions.

    First, EPA proposed to approve the request from IDEM to change the legal designation of the Indiana portion of the Louisville area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. EPA also proposed to approve Indiana's PM2.5 maintenance plan for the Indiana portion of the Louisville area as a revision to the Indiana state implementation plan (SIP) because the plan met the requirements of section 175A of the CAA. In addition, EPA proposed to approve emissions inventories for primary PM2.5, and all its precursors as satisfying the requirement in section 172(c)(3) of the CAA for a comprehensive, current emission inventory. Finally, EPA proposed a motor vehicle emissions budget for the Indiana portion of the Louisville area. EPA did not receive adverse comments on the proposed rulemaking.

    In August 2013, EPA issued results of a technical systems audit on the PM2.5 laboratory in Kentucky, which invalidated the Jefferson County monitoring data for all of 2012, and a small portion of the monitoring data from 2013 (a portion of the first quarter). See the docket for the technical systems audit information. Since the area could no longer demonstrate attainment of the standard for the entire area, EPA did not finalize its proposal. Kentucky began collecting valid data in early 2013 (the end of the first quarter) after the monitoring audit issues had been addressed, resulting in a valid design value for the area using 2013-2015 data. Both Indiana and Kentucky certified valid data for 2015 in the beginning of 2016. EPA has approved the use of this quality-assured, quality-controlled certified complete data for use in regulatory actions.

    Today, EPA is publishing a supplement to its July 11, 2013, proposed rulemaking. The supplement is based on valid design values for the 2013-2015 period, demonstrating attainment of the standard for the entire Louisville area using the most recent three years of data. Preliminary data for 2016 shows that the entire Louisville area continues to attain the standard. This proposal also discusses the maintenance plan emission projections of 2025 and the impact of the budgets remanded under CSAPR on the Louisville area because the status of these issues has changed from the initial proposal.

    II. On what specific issues is EPA taking comments?

    In this portion of EPA's supplemental proposal, EPA is soliciting comment on the limited issue of the 2013-2015 design values demonstrating attainment of the standard for the entire Louisville area, the maintenance plan emission projections for 2025, and the impact on the Louisville area of the 2015 D.C. Circuit decision remanding certain CSAPR budgets.

    A. Louisville Area Design Values for 2013-2015; Entire Area Monitoring Attainment

    EPA is proposing to determine that the Louisville area is attaining the 1997 annual PM2.5 NAAQS based upon the most recent three years of complete, certified and quality-assured data. Under EPA's regulations at 40 CFR 50.7, the annual primary and secondary PM2.5 standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 micrograms per cubic meter(µg/m3)at all monitoring sites in the area. Data are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist. A complete year of air quality data is comprised of four calendar quarters, with each quarter containing data from at least 75% capture of the scheduled sampling days. In this case, the 2009-2011 values were calculated prior to the audit invalidating data collected in the Kentucky portion of Louisville for 2012 and beginning of 2013 (portion of the first quarter). The 2013-2015 values are based on quality-assured, quality-controlled, certified complete data, and only included valid data collected after the audit issues were corrected. Preliminary data for 2016 shows the area continues to attain the standard. The Louisville design value for the most current three years of data is 11.7 μg/m3.

    Table 1—The 1997 Annual PM2.5 Design Values for the Louisville Monitor With Complete Data for the 2009-2011,1 and 2013-2015 Design Value in µg/m 3 County Site Design value 2009-2011
  • (μg/m3)
  • Design value 2013-2015
  • (μg/m3)
  • Clark County, IN 180190006 13.5 11.4 Clark County, IN 180190008 11.4 9.3 Floyd County, IN 180431004 12.3 10.0 Jefferson County, KY 211110043 12.6 11.3 Jefferson County, KY 211110051 12.7 11.7 Jefferson County, KY 211110067 12.1 10.5 1 2009-2011 design values are the desigh values for the area prior to date issues, and design values for 2013-2015 are the most recent three years of monitoring data showing that the area is attaining the standard.

    Data recorded at monitors in 2013, 2014, and 2015 are considered valid and were collected after corrective actions resulting from the technical systems audit. These are the data on which EPA is basing its decision that the Louisville area has attained the 1997 annual PM2.5 NAAQS.

    B. Demonstration of Maintenance

    Along with the redesignation request, Indiana submitted a revision to its PM2.5 SIP to include a maintenance plan for the Indiana portion of the Louisville area, as required by section 175A of the CAA. Indiana's plan demonstrates maintenance of the 1997 annual PM2.5 standard through 2025 by showing that current and future emissions of oxides of nitrogen (NOX), directly emitted PM2.5, and sulfur dioxide (SO2) in the area remain at or below attainment year emission levels. Section 175A requires a state seeking redesignation to attainment to submit a SIP revision which provides for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” See September 4, 1992, memorandum from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” p. 9. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni Memorandum, pp. 9-10.

    As discussed in detail in the section below, the state's maintenance plan submission expressly documents that the area's emissions inventories will remain below the attainment year inventories through 2025. In addition, for the reasons set forth below, EPA believes that the state's submission, in conjunction with additional supporting information, further demonstrates that the area will continue to maintain the PM2.5 standard at least through 2026. Thus, if EPA finalizes its proposed approval of the redesignation request and maintenance plan in 2016, it will be based on a showing, in accordance with section 175A, that the state's maintenance plan provides for maintenance for at least ten years after redesignation.

    Indiana's plan demonstrates maintenance of the 1997 annual PM2.5 NAAQS through 2025 by showing that current and future emissions of NOX, directly emitted PM2.5 and SO2 for the area remain at or below attainment year emission levels.

    The rate of decline in emissions of PM2.5, NOX, and SO2 from the attainment year 2008 through 2025 (calculated from Table 2) indicates that emissions inventory levels not only significantly decline between 2008 and 2025, but that the reductions will continue in 2026 and beyond. The average annual rate of decline is 4,472 tons per year (tpy) for SO2, 1,052 tpy of NOX, and 8.73 tpy of direct PM for the Indiana portion of the Louisville area, and average annual rate of decline is 4,436 tpy for SO2, 2,239 tpy of NOX, and 98.1 tpy of direct PM for the entire Louisville area. These rates of decline are consistent with monitored and projected air quality trends, emissions reductions achieved through emissions controls and regulations that will remain in place beyond 2026 and through fleet turnover that will continue beyond 2026, among other factors. We are proposing to find the mobile source contribution to these emissions is expected to remain insignificant in 2026 and beyond because of fleet turnover in upcoming years that will result in cleaner vehicles and cleaner fuels.

    A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003), 78 FR 53272 (August 29, 2013). Indiana uses emissions inventory projections for the years 2015 and 2025 to demonstrate maintenance for the entire Louisville area. The projected emissions were estimated by Indiana, with assistance from the Lake Michigan Air Directors Consortium (LADCO) and the Kentucky Regional Planning and Development Agency (KIPDA), who used the MOVES2010a model for mobile source projections. Projection modeling of inventory emissions was done for the 2015 interim year emissions using estimates based on the 2008 and 2015 LADCO modeling inventory, using LADCO's growth factors, for all sectors. The 2025 maintenance year emission estimates were based on emissions estimates from the 2015 LADCO modeling. Table 2 shows the 2008 attainment base year emission estimates and the 2015 and 2025 emission projections for the Louisville area, taken from Indiana's June 16, 2011, submission.

    Table 2—Comparison of 2008, 2015 and 2025 NOX, Direct PM2.5 and SO2 Emission Totals (tpy) for the Louisville Area SO2 NOX PM2.5 2008 (baseline) 151,503.01 97,533.93 6,724.02. 2015 76,958.54 69,936.67 5,540.29. 2025 76,082.07 59,455.17 5,055.61. Change 2008-2025 −75,420.94 −38,078.76 −1,668.41. 50% decrease 39% decrease 25% decrease.

    Table 2 shows that, for the period between 2008 and the maintenance projection for 2025, the Louisville area will reduce NOX emissions by 38,078 tpy; direct PM2.5 emissions by 1,668 tpy; and SO2 emissions by 75,420 tpy. The 2025 projected emissions levels are significantly below attainment year inventory levels, and, based on the rate of decline, it is highly improbable that any increases in these levels will occur in 2026 and beyond. Thus, the emissions inventories set forth in Table 2 show that the area will continue to maintain the annual PM2.5 standards during the maintenance period and at least through 2026.

    As Table 1 and 2 demonstrate, monitored PM2.5 design value concentrations in the Louisville area are well below the NAAQS in the years beyond 2008, an attainment year for the area. Further, those values are trending downward as time progresses. Based on the future projections of emissions in 2025 showing significant emissions reductions in direct PM2.5, NOX, and SO2, it is very unlikely that monitored PM2.5 values in 2026 and beyond will show violations of the NAAQS. Additionally, the 2013-2015 design value of 11.7 μg/m3 provides a sufficient margin for the 1997 standard in the unlikely event emissions rise slightly in the future.

    C. CAIR and CSAPR

    In its redesignation request and maintenance plan, the state identified the Clean Air Interstate Rule (CAIR) as a permanent and enforceable measure that contributed to attainment in the Louisville Area. CAIR created regional cap-and-trade programs to reduce SO2 and NOX emissions in 27 eastern states, including Indiana, that contributed to downwind nonattainment or interfered with maintenance of the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. See 70 FR 25162 (May 12, 2005). Indiana adopted CAIR budgets into its SIP on November 1, 2006, with emission reductions beginning in 2010 and extending into 2015. By 2007, the beginning of the attainment time period identified by Indiana, CAIR had begun achieving emission reductions in the state.

    In 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008); but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and, thus, to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from emission generating units (EGUs) in 28 states in the eastern United States. As a general matter, because CSAPR is CAIR's replacement, emissions reductions associated with CAIR will for most areas be made permanent and enforceable through implementation of CSAPR.

    Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) (EME Homer City II). The Phase 2 annual and ozone season NOX and SO2 budgets for Indiana are not affected by the Court's decision. The litigation over CSAPR ultimately delayed implementation of that rule for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. CSAPR's Phase 2 budgets were originally promulgated to begin on January 1, 2014, and are now scheduled to begin on January 1, 2017. CSAPR will continue to operate under the existing emissions budgets until EPA addresses the D.C. Circuit's remand. The Court's decision did not affect Indiana's CSAPR emissions budgets; therefore, CSAPR ensures that the NOX and SO2 emissions reductions associated with CAIR and CSPAR throughout Indiana are permanent and enforceable.1

    1 2009-2011 design values are the design values for the area prior to data issues, and design values for 2013-2015 are the most recent three years of monitoring data showing that the area is attaining the standard.

    In its redesignation request, Indiana noted that a number of states contributed to PM2.5 concentrations in the Louisville area based on EPA air quality modeling. Additionally, an air quality modeling analysis conducted by IDEM demonstrates that the Louisville area would be able to attain the PM2.5 standard even in the absence of either CAIR or CSAPR. See appendices H and I of Indiana's redesignation request found in the docket. This modeling is available in the docket for this proposed redesignation action.

    To the extent that Louisville relies on CSAPR for maintenance of the standard, EPA has identified the Louisville area as having been significantly impacted by pollution transported from other states in both CAIR and CSAPR, and these rules greatly reduced the tons of SO2 and NOX emissions generated in the states upwind of the area. The air quality modeling performed for the CSAPR rulemaking identified the following states as having contributed to PM2.5 concentrations in the Louisville area: Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin. See 76 FR 48208(August 8, 2011). Even though the first phase of CAIR implementation for SO2 did not begin until 2010, many sources began reducing their emissions well in advance of the first compliance deadline because of the incentives offered by CAIR for early compliance with the rule. The emission reductions in the states upwind of the Louisville area achieved by CAIR, and made permanent by CSAPR, are unaffected by the D.C. Circuit's remand of CSAPR.2

    2 The D.C. Circuit in EME Homer City II remanded the SO2 trading program budgets for four states, none of which were identified as contributing to the Louisville area. Moreover, updated air quality modeling performed for the CSAPR identified that the Louisville area can attain and maintain the 1997 PM2.5 NAAQS and no modeled issues for the 2012 NAAQS 76 FR 48207, 48241 (August 8, 2011) and Page memo, March 17, 2016.

    III. Summary of Proposed Actions

    EPA is issuing a supplement to its action, published July 11, 2013, which proposed to redesignate the Indiana portion of the Louisville area to attainment for the 1997 annual PM2.5 NAAQS, to approve the associated maintenance plan, and to approve the state's emission inventory. EPA is concluding that the most current three year design values show that the area is attaining the standard and preliminary values show the area continues to attain the 1997 annual PM2.5 NAAQS. EPA also determined that the projections used in the states submittal meet the requirements of the maintenance plan out-year emission projections. EPA concluded that the CSAPR remanded budgets did not affect the area's ability to attain through permanent and enforceable measures and will not affect the area's ability to maintain the standard. EPA is seeking comment only on the issues raised in this supplemental proposal, and is not re-opening comment on other issues addressed in its prior proposal.

    IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions do not impose additional requirements beyond those imposed by state law and the CAA. For that reason, these proposed actions:

    • Are not “significant regulatory actions” 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);

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

    • Are 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.);

    • Do 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);

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

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

    • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Are 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

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

    In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determination of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.

    40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Dated: June 1, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2016-14806 Filed 6-22-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [150306232-6491-01] RIN 0648-BE96 Fisheries of the Northeastern United States; Monkfish; Framework Adjustment 9 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    We are proposing to approve and implement regulations submitted by the New England and Mid-Atlantic Fishery Management Councils in Framework Adjustment 9 to the Monkfish Fishery Management Plan. This action is necessary to better achieve the goals and objectives of the management plan and achieve optimum yield. The proposed action is intended to enhance the operational and economic efficiency of existing management measures and increase monkfish landings.

    DATES:

    Public comments must be received by July 8, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0045, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0045, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope: “Comments on Monkfish Framework 9.”

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    New England Fishery Management Council staff prepared an environmental assessment (EA) for Monkfish Framework Adjustment 9 that describes the proposed action and other considered alternatives. The EA provides a thorough analysis of the biological, economic, and social impacts of the proposed measures and other considered alternatives, a preliminary Regulatory Impact Review, and economic analysis. Copies of the Framework 9 EA are available on request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. This document is also available from the following internet addresses: http://www.greateratlantic.fisheries.noaa.gov/ or http://www.nefmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Allison Murphy, Fishery Policy Analyst, (978) 281-9122.

    SUPPLEMENTARY INFORMATION:

    Background

    The monkfish fishery is jointly managed under the Monkfish Fishery Management Plan (FMP) by the New England and the Mid-Atlantic Fishery Management Councils. The fishery extends from Maine to North Carolina from the coast out to the end of the continental shelf. The Councils manage the fishery as two management units, with the Northern Fishery Management Area (NFMA) covering the Gulf of Maine (GOM) and northern part of Georges Bank (GB), and the Southern Fishery Management Area (SFMA) extending from the southern flank of GB through Southern New England (SNE) and into the Mid-Atlantic (MA) Bight to North Carolina.

    Monkfish are often caught while fishing for Northeast (NE) multispecies, particularly in the NFMA. This has resulted in two closely related fisheries as a majority of monkfish vessels operating in the NFMA are issued both monkfish and NE multispecies permits. Because this action proposes to modify some requirements for NE multispecies sector vessels, it is also considered Framework Adjustment 54 to the NE Multispecies FMP.

    The monkfish fishery is primarily managed by landing limits and a yearly allocation of monkfish days-at-sea (DAS) calculated to enable vessels participating in the fishery to catch, but not exceed, the target total allowable landings (TAL) and the annual catch target (ACT, the TAL plus an estimate of expected discards) in each management area. Both the ACT and the TAL are calculated to maximize yield in the fishery over the long term. Based on a yearly evaluation of the monkfish fishery, the Councils may revise existing management measures through the framework provisions of the FMP, including DAS allocations and landing limits, to better achieve the goals and objectives of the FMP and achieve optimum yield (OY), as required by the Magnuson-Stevens Fishery Conservation and Management Act. Amendment 5 (76 FR 30265; May 25, 2011) defined OY as fully harvesting the ACT.

    We completed an operational stock assessment in May 2013 to update the state of the monkfish stocks and provide projections to assist with setting future catch levels. The 2013 assessment update revised existing biological reference points, including a substantial reduction in the overfishing level, and concluded that the two monkfish stocks are neither overfished nor subject to overfishing.

    The monkfish fishery has failed to fully harvest the available ACT each year since 2011, particularly in the NFMA where the under-harvest has been more substantial. As a result, the fishery has not been achieving OY in either area in recent years. The Councils developed Framework 9 to enhance the operational efficiency of existing management measures in an effort to better achieve OY.

    Proposed Measures 1. Monkfish Possession Limits in the NFMA

    This action would revise monkfish possession limits specified in 50 CFR 648.94 to help increase monkfish landings and better achieve the ACT caught in the NFMA. Specifically, this measure would eliminate the monkfish possession limit for monkfish Category C and D permitted vessels (referred to as Category C and D vessels in this section) fishing under both a NE multispecies and monkfish day-at-sea (DAS) in the NFMA.

    Possession limits differ based on the type of DAS being used by a vessel. Table 1 includes a summary of the current monkfish tail weight possession limits for a vessel fishing under the various DAS available in the NFMA. We are proposing to add another tier to the possession limit system without changing the existing possession limits for a vessel fishing on a NE multispecies DAS or a monkfish DAS. We propose to allow a Category C or D vessel that is fishing under both a NE multispecies and a monkfish DAS in the NFMA to retain an unlimited amount of monkfish (Table 1).

    Table 1—Proposed and Existing Monkfish Tail Weight Possession Limits for Monkfish Category C and D Permitted Vessels Fishing on a DAS in the NFMA DAS type Category C possession limit Category D possession limit Existing Measures NE Multispecies A DAS only 600 lb (272.16 kg) 500 lb (226.80 kg). Monkfish DAS only 1,250 lb (566.99 kg) 600 lb (272.16 kg). Proposed Measure NE Multispecies A and Monkfish DAS Unlimited Unlimited. Note: Tail weight × 2.91 = whole weight.

    As is currently the case, a Category C or D vessel would still be required to declare a trip at the dock under a NE multispecies A DAS with the option to declare a monkfish-DAS while at sea, and then declare a monkfish DAS while at sea in order or to be exempt from the monkfish possession limits. Alternately, a Category C or D vessel would be required to declare a concurrent NE Multispecies A DAS and a monkfish DAS at the dock prior to starting a trip in order or to be exempt from the monkfish possession limits. Under existing regulations, however, a Category C or D vessel cannot begin a trip under a monkfish-only DAS and add a NE Multispecies A DAS while at sea in order or to be exempt from the monkfish possession limit. A provision to allow this and provide this flexibility is also considered in this proposed rule and discussed in detail below. Without this change, a Category C or D vessel that does not declare a trip under a NE multispecies A DAS and a monkfish DAS (or option to declare a monkfish DAS while at sea) at the dock prior to starting a trip would not be exempt from the monkfish possession limits under this action. In such cases, the existing monkfish possession limits for Category C and D vessels fishing only under a NE multispecies DAS or a monkfish DAS would remain the same, as outlined in Table 1.

    2. NE Multispecies DAS Declaration Requirements

    This action would revise NE multispecies DAS declaration requirements to help increase operational flexibility and potentially increase monkfish landings in the NFMA. Functionally, this would allow a Monkfish Category C and D vessel enrolled in a NE multispecies sector (referred to as a Category C and D sector vessel in this section) fishing in the NFMA to declare a NE multispecies A DAS while at sea, through the vessel monitoring system (VMS), when certain conditions apply.

    We propose to allow a Category C and D sector vessel fishing on either a NE multispecies non-DAS sector trip or a monkfish-only DAS exclusively in the NFMA to declare a NE multispecies A DAS while at sea. Currently, a Category C or D sector vessel that is not declared into the monkfish fishery, but is declared into the NE multispecies fishery on a non-DAS sector trip, is limited to an incidental possession limit for monkfish. In the NFMA, which overlaps with the GOM and GB Regulated Mesh Areas (RMAs), the incidental monkfish possession limit is up to 5 percent of total weight of fish on board.

    This measure would also increase flexibility by allowing a vessel to fish in a larger geographic area. Currently, any Category C or D vessel must use its monkfish-only DAS exclusively in a monkfish exempted fishery. An exempted fishery is an area and season demonstrated to have minimal bycatch of NE multispecies when using a specific type of gear. The only monkfish exempted fishery that overlaps with the NFMA is in the Gulf of Maine/Georges Bank Dogfish and Monkfish Gillnet Exemption Area, as described in § 648.80(a)(13). Allowing a vessel to declare a NE multispecies DAS while at sea would allow that vessel to fish outside of these specified areas and retain NE multispecies for the remainder of the trip.

    Under this proposed measure, monkfish possession limits would increase from the incidental monkfish possession limit to the monkfish possession limits for Category C and D sector vessels fishing on a NE multispecies A DAS in the NFMA, as summarized in Table 2. We are also proposing to allow a Category C or D sector vessel fishing exclusively in the GOM/GB Dogfish and Monkfish Gillnet Exemption Area to change its VMS declaration from a monkfish-only DAS to a combined monkfish and NE multispecies A DAS while at sea. Under this proposed measure, monkfish possession limits for Category C and D sector vessels would become unlimited, as described in Table 2, should we also approve changes to the possession limits described above.

    Table 2—Proposed and Existing Monkfish Tail Weight Possession Limits for Monkfish Category C and D Sector Vessels Fishing on a DAS in the NFMA DAS type Category C possession limit Category D possession limit Existing Measures No DAS up to 5 percent of total weight of fish on board up to 5 percent of total weight of fish on board. NE Multispecies A DAS only 600 lb (272.16 kg) 500 lb (226.80 kg). Monkfish DAS only 1,250 lb (566.99 kg) 600 lb (272.16 kg). Proposed Measure NE Multispecies A and Monkfish DAS Unlimited Unlimited.

    While we are proposing this measure as recommended by the Councils, we have some concerns. First, our analyses suggest that the necessary implementation costs may not exceed the benefits to the fishery. This measure will require VMS software modifications to allow vessels the ability to declare a NE multispecies A DAS while at sea. We expect this VMS change to cost roughly $100,000, based on other, recent VMS software changes we have implemented. The cost associated with VMS changes is primarily because 4 approved vendors for the Greater Atlantic Region will all be required to update their software onboard vessels using their VMS equipment. This cost is borne solely by the Agency. The EA for Framework 9 identified only a small percent (1.6 percent) of vessels that approached applicable trip limits for non-DAS sector trips and monkfish-only trips. In addition, the Framework 9 EA indicates that few trips would have yielded additional monkfish landings in recent fishing years had the proposed NE multispecies DAS at-sea declaration change been in place. Based on this information, this measure may do little to help the fishery achieve optimum yield. We are interested in public comment on the cost, effectiveness, and utility of this proposed measure. We intend to further evaluate the potential cost/benefit of providing this at-sea declaration flexibility, as well as public comment, when considering the approvability of this measure.

    Proposing to allow Category C and D sector vessels fishing on a monkfish-only DAS in the NFMA to declare a NE multispecies A DAS while at sea may not provide as many benefits as first anticipated. As described above, only the GOM/GB Dogfish and Monkfish Gillnet Exemption overlaps with the NFMA. This exempted fishery is open from July 1 through September 14, annually, for a vessel using gillnet gear in the waters of Cape Cod Bay and off southern Maine. Given that the majority of the fleet in the NFMA fishes with trawl gear and cannot take advantage of monkfish-only DAS because they are excluded from this exempted fishery, we are concerned that only a small number of vessels that use gillnet gear would benefit from this flexibility.

    Second, allowing a vessel to declare a NE multispecies A DAS after starting a trip on a monkfish-only DAS could potentially circumvent existing NE multispecies pre-trip notification requirements for deploying industry-funded at-sea monitors. We believed, at the time the Council took final action, that limiting the declaration change to sector vessels would mitigate these concerns. Since Council final action, we have continued to discuss the nuances of this potential provision with Regional Office NE multispecies and Northeast Fisheries Science Center, Fishery Sampling Branch staff. We remain concerned that the ability to switch from a monkfish-only DAS to a NE multispecies A DAS would allow vessels to bypass sector monitoring and reporting requirements.

    A potential remedy to this loophole is an alternative that would require a vessel to comply with existing pre-trip notification requirements at § 648.11(k) and be subject to sector-funded at-sea monitoring to be able to change declarations at-sea. In addition, we could also require a vessel to submit a sector trip-start hail, described at § 648.10(k)(1)(iii), so that we can identify trips that may use this declaration flexibility.

    We recognize that this potential solution may be somewhat less flexible than what was intended by the Councils and was not explicitly contemplated or discussed by the Councils. However, if not imposed, the proposed measures, as recommended, would allow vessels to circumvent sector-related reporting requirements, and inclusion of these measures pursuant to the authority provided to the Secretary of Commerce in section 305(d) of the Magnuson-Stevens Act may therefore be necessary to implement this portion of Framework 9 consistently with the Act. Adding NE multispecies monitoring requirements on these trips could complicate the Northeast Fisheries Observer Program and At-Sea Monitoring Program sea-day schedule assignments, coverage accomplishments, and future coverage needs. Further, fewer fishermen may use the flexibility option if they are at risk of being assigned an at-sea monitor, which industry has to pay for. We are soliciting specific comment from the Councils and the public on both the at-sea declaration flexibility as recommended by the Councils and this potential solution.

    If this remedy solution is approved, the pre-trip notification system (PTNS) must be modified to accept monkfish-only trips. Currently, PTNS will only accept trips declared into the NE multispecies (i.e., non-DAS sector trips and A DAS trips) and Squid, Mackerel, and Butterfish fisheries. Monkfish-only trips would need to be added to the system and assigned a selection protocol. We are unsure about the associated costs for such a change.

    Finally, we have some enforcement concerns with the proposal to allow Category C and D sector vessels fishing on a monkfish-only DAS in the NFMA to declare a NE multispecies A DAS while at sea. Currently, a Category C or D sector vessel fishing on a monkfish-only DAS in an exempted fishery is required to discard all NE multispecies. Similarly, a Category C or D sector vessel fishing on a NE multispecies A DAS or on a non-DAS sector trip is currently required to retain all legal-sized groundfish. Should this measure be approved, a Category C or D sector vessel would begin a trip discarding all NE multispecies, and then be required to retain all legal-sized NE multispecies, once the vessel declares a NE multispecies DAS. This may introduce confusion about discarding and catch reporting requirements for the industry and complicates the enforceability of this measure. To help provide clarity, pursuant to the authority provided to the Secretary of Commerce in sector 305(d) of the Magnuson-Stevens Act, we could revise the sector discard and operations plan prohibitions at § 648.14(k)(14)(iv) and (viii) and the sector monitoring requirements at § 648.87(b)(1)(v)(A) to make clear that there would be different discard requirements before and after a vessel declares a NE multispecies DAS. We are also soliciting specific comment from the Councils and the public on clarifying the discard requirements.

    It should be noted that we may need to delay effectiveness of this measure, should it be approved. Modifications to VMS would likely take months to complete and we are uncertain how long the necessary PTNS changes may take to implement.

    3. Minimum Mesh Size Requirements in the SFMA

    We are proposing to revise minimum mesh size requirements at § 648.80(b) and (c) and § 648.91(c)(1)(iii) to increase operational flexibility. The changes would allow vessels to target both monkfish and dogfish while on the same trip. Currently, the following restrictions apply in the SFMA:

    • A category C or D vessel fishing on a combined monkfish and NE multispecies A DAS in the SFMA must fish with gillnets no smaller than 10-inches (25.4-cm) diamond mesh;

    • Any monkfish-permitted vessel fishing in the SNE Dogfish Gillnet Exemption Area may retain dogfish and incidental limits of other species (excluding monkfish) allowed in the SNE Exemption Area; and

    • Any monkfish-permitted vessel fishing in the SNE Monkfish and Skate Gillnet Exemption Area may retain monkfish and skate up to a specified limit and incidental limits of other species (excluding dogfish) allowed in the SNE Regulated Mesh Area (RMA).

    The proposed measure would modify a vessel's minimum gillnet mesh size requirements when fishing on a monkfish DAS using roundfish (also called stand-up) gillnets in the SFMA. It would also modify the minimum gillnet mesh size requirements in a smaller portion of the SFMA referred to as the Mid-Atlantic Exemption Area. Finally, this measure changes possession limit requirements in the SNE Dogfish Gillnet Exemption Area and dogfish in the SNE Monkfish and Skate Gillnet Exemption Area so that a vessel may retain both monkfish and dogfish. Please see Figure 1 for a display of these areas.

    EP23JN16.030

    We are proposing to allow a Category C or D vessel fishing under both a NE multispecies and a monkfish DAS in the SFMA to use 6.5-inch (16.5-cm) roundfish gillnets. We are also proposing to allow any monkfish-permitted vessel fishing on a monkfish-only DAS in the Mid-Atlantic Exemption Area to use 5-inch (12.7-cm) roundfish gillnets in the Mid-Atlantic Exemption Area. Finally, we are proposing to allow a monkfish-permitted vessel fishing on a monkfish-only DAS in either the SNE Dogfish Gillnet Exemption Area or the SNE Monkfish and Skate Gillnet Exemption Area to retain both monkfish and dogfish on the same trip when declared into either area. This measure would also limit a vessel to using 50 roundfish gillnets in the SNE Dogfish and the Mid-Atlantic Exemption Areas. Table 3 summarizes the proposed measures (highlighted in bold) and also includes existing seasonal, gear, and DAS requirements.

    Table 3—Summary of Proposed (Bold) and Other Existing Requirements in the Monkfish SFMA NE multispecies DAS
  • anywhere in the SFMA
  • SNE Dogfish Gillnet
  • exemption area
  • SNE Monkfish and Skate Gillnet exemption area Mid-Atlantic exemption area
    Minimum gillnet mesh 6.5 inches (16.51 cm) for standup nets 6 inches (15.24 cm) for standup nets 10 inches (25.4 cm) for all nets 5 inches (12.7 cm) for standup nets. DAS NE multispecies and monkfish Monkfish Monkfish Monkfish. Season Year-round May 1-October 31 Year-round Year-round. Gear Limits All Trip gillnet vessels: Unlimited
  • Day gillnet vessel in the GB RMA: 50 gillnets
  • Day gillnet vessel in the SNE RMA: 75 gillnets
  • Day gillnet vessel in the MA RMA: 75 gillnets
  • Category A/B: 160 gillnets
  • Category C/D: 150 gillnets
  • Roundfish gillnet limit: 50 gillnets
  • Category A/B: 160 gillnets
  • Category C/D: 150 gillnets
  • Category A/B: 160 gillnets
  • Category C/D: 150 gillnets
  • Roundfish gillnet limit: 50 gillnets.
  • Regulatory change to possess both Monkfish and Dogfish No Yes Yes Yes.

    A vessel taking advantage of these smaller minimum mesh sizer requirements must still comply with all other requirements of fishing in the SFMA or in the Exemption Areas. Existing monkfish possession limits for vessels issued a limited access monkfish permit and fishing in the SFMA would remain the same.

    4. Corrections and Clarifications to Existing Regulations

    This proposed rule would correct a number of inadvertent errors, omissions, and ambiguities in existing regulations in order to ensure consistency with, and accurately reflect the intent of, previous actions under the FMP, or to more effectively administer and enforce existing and proposed provisions pursuant to the authority provided to the Secretary of Commerce in section 305(d) of the Magnuson-Stevens Act. The following proposed measures are listed in the order in which they appear in the regulations.

    In § 648.10, paragraphs (b)(3), (g)(1), (g)(3), and (g)(3)(ii)(A) would be revised to enhance readability and more clearly state the regulatory requirements.

    In § 648.92, paragraph (b)(1)(i) would be revised to enhance readability and more clearly state the regulatory requirements. A reference to the DAS requirements in the SFMA and adjustment for gear conflicts would also be removed, as these references are unnecessary. The reference to DAS requirement in the SFMA in § 648.92(b)(1)(ii) is not needed because that referenced section further explains how the overall DAS allocation may be used. The reference to adjustment for gear conflicts in § 648.96(b)(3) states that the Councils may develop recommendations to address gear conflicts. This reference is unnecessary because those measures would be captured in the regulations and appropriately cross-referenced.

    In § 648.94, paragraph (b)(3)(i) would be revised to enhance readability and more clearly state the regulatory requirements. A reference to Category F permits would also be deleted for clarity because it may cause confusion with regard to the possession limits for Category F permits. Possession limit requirements for Category F permits are more clearly outlined in § 648.95.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Monkfish and NE Multispecies FMPs, Framework 9, provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council prepared an analysis of the potential economic impacts of this action, which is included in the draft EA for this action (see ADDRESSES to obtain a copy of the EA) and supplemented by information contained in the preamble of this proposed rule. The SBA defines a small business in the commercial harvesting sector as a firm with receipts (gross revenues) of up to $5.5 million for shellfish businesses and $20.5 million for finfish businesses. There are 397 distinct ownership entities based on calendar year 2014 permits, the most complete full-year data available for the Council's analysis, that are directly regulated by this action. Of those 397 entities, 381 entities are categorized as small and 16 entities are categorized as large per the SBA guidelines.

    This proposed rule is not expected to place small entities at a competitive disadvantage to large entities. All of the large entities impacted by the proposed action are primarily engaged in shellfish fishing. These large entities may not benefit to the same degree as small entities because the majority of small entities are primarily engaged in finfish fishing. The proposed rule would liberalize trip limits, increase operational flexibility, and relax minimum mesh size requirements, directly benefiting fishermen that are primarily engaged in finfish fishing. In terms of profitability, both small and large entities should benefit from increased operational flexibility from the proposed action, though these benefits are likely to be marginal.

    There is no reason to believe small entities will be negatively affected in any way by the proposed measures identified in this rule's preamble. Overall, the net impact on profits from each proposed measure is expected to be slightly positive to neutral because these measures relieve restrictions. Therefore, this action is not expected to have a significant economic impact on a substantial number of small entities.

    As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 20, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.10, revise paragraphs (b)(3), (e)(5)(ii), (g)(1), and (g)(3) to read as follows:
    § 648.10 VMS and DAS requirements for vessel owners/operators.

    (b) * * *

    (3) A vessel issued a limited access monkfish, Occasional scallop, or Combination permit, whose owner elects to provide the notifications required by this section using VMS, unless otherwise authorized or required by the Regional Administrator under paragraph (d) of this section;

    (e) * * *

    (5) * * *

    (ii) Notification that the vessel is not under the DAS program, the Access Area Program, the LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the operation of VMS, must be received by NMFS prior to the vessel leaving port. A vessel may not change its status after the vessel leaves port or before it returns to port on any fishing trip, unless

    (A) The vessel is a scallop vessel and is exempted, as specified in paragraph (f) of this section, or

    (B) Unless the vessel is a NE multispecies sector vessel with a Monkfish Category C or D permit declaring a NE multispecies DAS while at sea, as specified in paragraph (g)(3)(ii) of this section.

    (g) * * *

    (1) The owner or authorized representative of a vessel that is required to or elects to use VMS, as specified in paragraph (b) of this section, must notify the Regional Administrator of the vessel's intended fishing activity by entering the appropriate VMS code prior to leaving port at the start of each fishing trip except:

    (i) If notified by letter, pursuant to paragraph (e)(1)(iv) of this section, or

    (ii) The vessel is a scallop vessel and is exempted, as specified in paragraph (f) of this section.

    (3) A vessel operator cannot change any aspect of a vessel's VMS activity code outside of port, except as follows:

    (i) An operator of a NE multispecies vessel is authorized to change the category of NE multispecies DAS used (i.e., flip its DAS), as provided at § 648.85(b), or change the area declared to be fished so that the vessel may fish both inside and outside of the Eastern U.S./Canada Area on the same trip, as provided at § 648.85(a)(3)(ii)(A).

    (ii) An operator of a vessel issued both a limited access NE multispecies permit and a limited access monkfish Category C or D permit is authorized to change the vessel's DAS declaration under the following circumstances:

    (A) From a NE multispecies Category A DAS to a trip also using a monkfish DAS, as provided at § 648.92(b)(1)(iii)(A);

    (B) From a NE multispecies sector non-DAS trip to a NE multispecies sector trip using a NE multispecies Category A DAS when fishing in the monkfish Northern Fishery Management Area (NFMA), if that vessel is participating in a sector; or

    (C) From a trip under a monkfish-only DAS to a trip under both a monkfish and a NE multispecies Category A DAS when fishing in the monkfish NFMA, if that vessel is participating in a sector.

    3. In § 648.14, revise paragraph (m)(2)(i) to read as follows:
    § 648.14 Prohibitions.

    (m)

    (2) * * *

    (i) Fish with or use nets with mesh size smaller than the minimum mesh size specified in § 648.91(c) while fishing under a monkfish DAS, except as authorized by § 648.91(c)(1)(iii).

    4. In § 648.80, revise paragraphs (b)(2)(iv), (b)(6)(i)(A), (b)(7)(i)(A)-(B), the introductory text to paragraph (c)(2)(v), and (c)(5) to read as follows:
    § 648.80 NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

    (b) * * *

    (2) * * *

    (iv) Gillnet vessels. For Day and Trip gillnet vessels, the minimum mesh size for any sink gillnet not stowed and not available for immediate use as defined in § 648.2, when fishing under a DAS in the NE multispecies DAS program or on a sector trip in the SNE Regulated Mesh Area, is 6.5 inches (16.5 cm) throughout the entire net. This restriction does not apply to nets or pieces of nets smaller than 3 ft (0.9 m) × 3 ft (0.9 m), (9 sq ft (0.81 sq m)), to vessels fishing with gillnet gear under a monkfish-only DAS in the SNE Dogfish Gillnet Exemption Area in accordance with the provisions specified under paragraph (b)(7)(i)(A) of this section; to vessels fishing with gillnet gear under a monkfish-only DAS in the Mid-Atlantic Exemption Area in accordance with the provisions specified under paragraph (c)(5)(ii) of this section; or to vessels that have not been issued a NE multispecies permit and that are fishing exclusively in state waters. Day gillnet vessels must also abide by the tagging requirements in paragraph (a)(3)(iv)(C) of this section.

    (6) * * *

    (i) * * *

    (A) A vessel fishing under the SNE Monkfish and Skate Gillnet Exemption may only fish for, possess on board, or land monkfish as specified in § 648.94(b), spiny dogfish up to the amount specified in § 648.235, and other incidentally caught species up to the amounts specified in paragraph (b)(3) of this section.

    (7) * * *

    (i) * * *

    (A) A vessel fishing under the SNE Dogfish Gillnet Exemption may only fish for, possess on board, or land dogfish and the bycatch species and amounts specified in paragraph (b)(3) of this section, unless fishing under a monkfish DAS. A vessel fishing under this exemption while on a monkfish-only DAS may also fish for, possess on board, and land monkfish up to the amount specified in § 648.94.

    (B) All gillnets must have a minimum mesh size of 6-inch (15.2-cm) diamond mesh throughout the net. A vessel fishing under this exemption while on a monkfish-only DAS may not fish with, possess, haul, or deploy more than 50 roundfish gillnets, as defined in § 648.2.

    (c) * * *

    (2) * * *

    (v) Gillnet vessels. For Day and Trip gillnet vessels, the minimum mesh size for any sink gillnet, not stowed and not available for immediate use as defined in § 648.2, when fishing under a DAS in the NE multispecies DAS program or on a sector trip in the MA Regulated Mesh Area, is 6.5 inches (16.5 cm) throughout the entire net. This restriction does not apply to nets or pieces of nets smaller than 3 ft (0.9 m) × 3 ft (0.9 m), (9 sq ft (0.81 sq m)), to vessels fishing with gillnet gear under a monkfish-only DAS in the Mid-Atlantic Exemption Area in accordance with the provisions specified under paragraph (c)(5)(ii) of this section, or to vessels that have not been issued a NE multispecies permit and that are fishing exclusively in state waters.

    (5) MA Exemption Area. (i) The MA Exemption Area is that area that lies west of the SNE Exemption Area defined in paragraph (b)(10) of this section.

    (ii) Monkfish/Spiny Dogfish Exempted Gillnet Fishery. A vessel fishing on a monkfish-only DAS may fish with, use, or possess gillnets in the MA Exemption Area with a mesh size smaller than the minimum size specified in paragraphs (b)(2)(iv) or (c)(2)(v) of this section, provided the vessel complies with the following requirements:

    (A) Number of nets. Notwithstanding the provisions specified in paragraphs (c)(2)(v)(A) and (B) of this section and § 648.92(b)(8), a vessel fishing on a monkfish-only DAS within the MA Exemption Area may not fish with, possess, haul, or deploy more than 50 roundfish gillnets, as defined in § 648.2.

    (B) Minimum mesh size. The minimum mesh size for any roundfish gillnet not stowed and available for immediate use by a vessel fishing on a monkfish-only DAS within the MA Exemption Area is 5 inches (12.7 cm) throughout the entire net.

    (C) Possession limits. A vessel fishing on a monkfish-only DAS within the MA Exemption Area may fish for, possess on board, or land monkfish up to the amount specified in § 648.94, spiny dogfish up to the amount specified in § 648.235, and other incidentally caught species up to the amounts specified in paragraph (b)(3) of this section.

    5. In § 648.91, revise paragraph (c)(1)(iii) to read as follows:
    § 648.91 Monkfish regulated mesh areas and restrictions on gear and methods of fishing.

    (c) * * *

    (1) * * *

    (iii) Gillnets while on a monkfish DAS. The minimum mesh size for any gillnets used by a vessel fishing under a monkfish DAS is 10-inch (25.4-cm) diamond mesh, unless:

    (A) The owner or operator of a limited access NE multispecies vessel fishing under a NE multispecies category A DAS with gillnet gear in the NFMA changes the vessel's DAS declaration to a monkfish DAS through the vessel's VMS unit during the course of the trip in accordance with the provisions specified under § 648.92(b)(1)(iii);

    (B) A vessel issued a Category C or D limited access monkfish permit is fishing under both a monkfish and NE multispecies Category A DAS in the SFMA using roundfish gillnets, as defined at § 648.2, with 6.5-inch (16.5-cm) diamond mesh;

    (C) A vessel issued a limited access monkfish permit is fishing on a monkfish-only DAS in the Mid-Atlantic Exemption Area using roundfish gillnets with a minimum mesh size of 5 inches (12.7 cm) in accordance with the provisions specified under § 648.80(c)(5); or

    (D) A vessel issued a limited access monkfish permit is fishing on a monkfish-only DAS in the Southern New England Dogfish Exemption Area using roundfish gillnets with a minimum mesh size of 6 inches (15.2 cm) in accordance with the provisions specified under § 648.80(b)(7).

    6. In § 648.92, revise paragraph (b)(1)(i) to read as follows:
    § 648.92 Effort-control program for monkfish limited access vessels.

    (b) * * *

    (1) * * *

    (i) General provision. Each vessel issued a limited access monkfish permit shall be allocated 46 monkfish DAS each fishing year, which must be used in accordance with the provisions of this paragraph (b), unless the permit is enrolled in the Offshore Fishery Program in the SFMA, as specified in paragraph (b)(1)(iv) of this section. The annual allocation of monkfish DAS to each limited access monkfish permit shall be reduced by the amount calculated in paragraph (b)(1)(v) of this section for the research DAS set-aside. Unless otherwise specified in paragraph (b)(2) of this section or under this subpart F, a vessel issued a limited access NE multispecies or limited access sea scallop permit that is also issued a limited access monkfish permit must use a NE multispecies or sea scallop DAS concurrently with each monkfish DAS utilized.

    7. In § 648.94, revise paragraphs (b)(1) and (b)(3)(i) to read as follows:
    § 648.94 Monkfish possession and landing restrictions.

    (b) * * *

    (1) Vessels fishing under the monkfish DAS program in the NFMA—

    (i) Category A vessels. A limited access monkfish Category A vessel that fishes exclusively in the NFMA under a monkfish DAS may land up to 1,250 lb (567 kg) tail weight or 3,638 lb (1,650 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). For every 1 lb (0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as described in paragraph (a) of this section.

    (ii) Category B vessels. A limited access monkfish Category B vessel that fishes exclusively in the NFMA under a monkfish DAS may land up to 600 lb (272 kg) tail weight or 1,746 lb (792 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). For every 1 lb (0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as described in paragraph (a) of this section.

    (iii) Category C vessels. A limited access monkfish Category C vessel that fishes exclusively in the NFMA under a monkfish-only DAS may land up to 1,250 lb (567 kg) tail weight or 3,638 lb (1,650 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). A limited access monkfish Category C vessel that fishes exclusively in the NFMA under both a monkfish and NE multispecies DAS may possess and land an unlimited amount of monkfish. For every 1 lb (0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as described in paragraph (a) of this section.

    (iv) Category D vessels. A limited access monkfish Category D vessel that fishes exclusively in the NFMA under a monkfish-only DAS may land up to 600 lb (272 kg) tail weight or 1,746 lb (792 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). A limited access monkfish Category D vessel that fishes exclusively in the NFMA under both a monkfish and NE multispecies DAS may possess and land an unlimited amount of monkfish. For every 1 lb (0.45 kg) of tail only weight landed, the vessel may land up to 1.91 lb (0.87 kg) of monkfish heads only, as described in paragraph (a) of this section.

    (3) * * *

    (i) NFMA. Unless otherwise specified in paragraph (b)(1) of this section, a vessel issued a limited access monkfish Category C permit that fishes under a NE multispecies DAS, and not a monkfish DAS, exclusively in the NFMA may land up to 600 lb (272 kg) tail weight or 1,746 lb (792 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). A vessel issued a limited access monkfish Category D permit that fishes under a NE multispecies DAS, and not a monkfish DAS, exclusively in the NFMA may land up to 500 lb (227 kg) tail weight or 1,455 lb (660 kg) whole weight of monkfish per DAS (or any prorated combination of tail weight and whole weight based on the conversion factor for tail weight to whole weight of 2.91). A vessel issued a limited access monkfish Category C, D, or F permit participating in the NE Multispecies Regular B DAS program, as specified under § 648.85(b)(6), is also subject to the incidental landing limit specified in paragraph (c)(1)(i) of this section on such trips.

    [FR Doc. 2016-14888 Filed 6-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160617540-6540-01] RIN 0648-XE695 Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    NMFS proposes to implement annual management measures and harvest specifications to establish the allowable catch levels (i.e. annual catch limit (ACL)/harvest guideline (HG)) for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the West Coast for the fishing season of July 1, 2016, through June 30, 2017. This rule is proposed pursuant to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed 2016-2017 HG for Pacific mackerel is 21,161 metric tons (mt). This is the total commercial fishing target level. NMFS also proposes an annual catch target (ACT), of 20,161 mt. If the fishery attains the ACT, the directed fishery will close, reserving the difference between the HG (21,161 mt) and ACT as a 1,000 mt set-aside for incidental landings in other CPS fisheries and other sources of mortality. This proposed rule is intended to conserve and manage the Pacific mackerel stock off the U.S. West Coast.

    DATES:

    Comments must be received by July 25, 2016.

    ADDRESSES:

    You may submit comments on this document identified by NOAA-NMFS-2015-0048, by any of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0048, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.

    Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Copies of the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-2016 Fishing Year” may be obtained from the West Coast Region (see ADDRESSES).

    FOR FURTHER INFORMATION CONTACT:

    Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034, [email protected]

    SUPPLEMENTARY INFORMATION:

    During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the recommended overfishing limit (OFL) and acceptable biological catch (ABC) calculations from the SSC, along with the calculated ACL, HG, and ACT recommendations, and comments from the Team and Subpanel. Following review by the Council and after reviewing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. Under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., NMFS manages the Pacific mackerel fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual Specifications published in the Federal Register establish the allowable harvest levels (i.e. OFL/ACL/HG) for each Pacific mackerel fishing year. The purpose of this proposed rule is to implement the 2016-2017 ACL, HG, ACT and other annual catch reference points, including an OFL and an ABC that take into consideration uncertainty surrounding the current estimate of biomass for Pacific mackerel in the U.S. EEZ off the Pacific coast.

    The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific mackerel, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG is based, in large part, on the current estimate of stock biomass. The annual biomass estimates are an explicit part of the various harvest control rules for Pacific mackerel, and as the estimated biomass decreases or increases from one year to the next, the resulting allowable catch levels similarly trend. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:

    1. Biomass. The estimated stock biomass of Pacific mackerel. For the 2016-2017 management season this is 118,968 mt.

    2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.

    3. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested.

    4. Distribution. The average portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

    At the June 2015 Council meeting, the Council adopted a new full stock assessment for Pacific mackerel completed by NMFS Southwest Fisheries Science Center and along with the Council's SSC, approved the resulting Pacific mackerel biomass estimate of 118,968 mt as the best available science for use in the 2016-2017 fishing year. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is proposing, an OFL of 24,983 mt, an ABC and ACL of 22,822 mt, an HG of 21,161 mt, and an ACT of 20,161 mt for the fishing year of July 1, 2016, to June 30, 2017.

    Under this proposed action, upon attainment of the ACT, the directed fishing would close, reserving the difference between the HG and ACT (1,000 mt) as a set aside for incidental landings in other CPS fisheries and other sources of mortality. For the remainder of the fishing year, incidental landings would also be constrained to a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS (in other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel), except that up to 3 mt of Pacific mackerel could be landed incidentally without landing any other CPS. Upon attainment of the HG (21,161 mt), no retention of Pacific mackerel would be allowed in CPS fisheries. In previous years, the incidental set-aside established in the mackerel fishery has been, in part, to ensure that if the directed quota for mackerel was reached that the operation of the Pacific sardine fishery was not overly restricted. There is no directed Pacific sardine fishery for the 2016-2017 season; therefore, the need for a high incidental set-aside is reduced. The purpose of the incidental set-aside and the allowance of an incidental fishery is to allow for restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce potential discard of Pacific mackerel and allow for continued prosecution of other important CPS fisheries.

    The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any closure to either directed or incidental fishing. Additionally, to ensure the regulated community is informed of any closure, NMFS would also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

    Detailed information on the fishery and the stock assessment are found in the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-16 Fishing Year” (see ADDRESSES).

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

    These proposed specifications are exempt from review under Executive Order 12866 because they contain no implementing regulations.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:

    The U.S. Small Business Administration (SBA) defines small businesses engaged in finfish fishing as those vessels with annual revenues of or below $20.5 million. The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finfish fleet and are all considered small businesses under these size standards.

    The small entities that would be affected by the proposed action are those vessels that harvest Pacific mackerel as part of the West Coast CPS purse seine fleet. The CPS FMP and its implementing regulations requires NMFS to set an OFL, ABC, ACL, HG, or ACT for the Pacific mackerel fishery based on the harvest control rules in the FMP. These specific harvest control rules are applied to the current stock biomass estimate to derive these catch specifications, which are used to manage the commercial take of Pacific mackerel. A component of these control rules is that as the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. For the 2016-2017 Pacific mackerel fishing season NMFS is proposing an OFL of 24,983 metric tons (mt), an ABC and ACL of 22,822 mt, an HG of 21,161 mt, and an ACT, which is the directed fishing harvest target, of 20,161 mt. These catch specifications are based on a biomass estimate of 118,968 mt.

    Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast, which primarily includes the fisheries for Pacific sardine, northern anchovy, and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Currently there are 56 vessels permitted in the Federal CPS limited entry fishery off California of which about 25 to 39 vessels have been annually engaged in harvesting Pacific mackerel in recent years (2009-2015). For those vessels that caught Pacific mackerel during that time, the average annual per vessel revenue has been about $1.25 million. The individual vessel revenue for these vessels is well below the SBA's threshold level of $20.5 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal or similar effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner.

    NMFS used the ex-vessel revenue information for a profitability analysis, as the cost data for the harvesting operations of CPS finfish vessels was limited or unavailable. For the 2015-2016 fishing year, the maximum fishing level was 25,291 mt and was divided into a directed fishing harvest target (ACT) of 20,469 mt and an incidental set-aside of 5,000 mt. As of April 29, 2016 approximately 3,880 mt of Pacific mackerel was harvested in the 2015-2016 fishing season with an estimated ex-vessel value of approximately $931,200.

    The maximum fishing level for the 2016-2017 Pacific mackerel fishing season is 21,161 mt, with an ACT of 20,161 mt and an incidental set-aside of 1,000 mt. This proposed ACT is nearly equivalent to the ACT established for the previous year, thus it is highly unlikely that the ACT proposed in this rule will limit the potential profitability to the fleet from catching Pacific mackerel compared to last season or recent catch levels, as shown below. The annual average U.S. Pacific mackerel harvest in recent years (2010-2015) has been about 5,000 mt. In this period, the landings have not exceeded 11,800 mt. Additionally, annual average landings during the last decade (2005-2015) have not been restricted by the applicable quota. Accordingly, vessel income from fishing is not expected to be altered as a result of this rule as it compares to recent catches in the fishery, including under the previous season's regulations.

    Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

    This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: June 17, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-14839 Filed 6-22-16; 8:45 am] BILLING CODE 3510-22-P
    81 121 Thursday, June 23, 2016 Notices ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD Meetings AGENCY:

    Architectural and Transportation Barriers Compliance Board.

    ACTION:

    Notice of meetings.

    SUMMARY:

    The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Monday through Wednesday, July 11-13, 2016 at the times and location listed below.

    DATES:

    The schedule of events is as follows:

    Monday, July 11, 2016 2:30 p.m.-3:30 p.m. Technical Programs Committee 3:30 p.m.-4:30 p.m. Ad Hoc Committee on Design Guidance Tuesday, July 12, 2016 9:30 a.m.-Noon Ad Hoc Committee on Frontier Issues 1:30 p.m.-2:00 p.m. Budget 2:00 p.m.-3:00 p.m. Planning and Evaluation 3:00 p.m.-4:30 p.m. Ad Hoc Committee on Information and Communications Technologies: CLOSED Wednesday, July 13, 2016 1:30 p.m.-3:00 p.m. Board Meeting ADDRESSES:

    Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.

    FOR FURTHER INFORMATION CONTACT:

    For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).

    SUPPLEMENTARY INFORMATION:

    At the Board meeting scheduled on the afternoon of Wednesday, July 13, 2016, the Access Board will consider the following agenda items:

    • Approval of the draft March 9, 2016 meeting minutes (vote) • Ad Hoc Committee Reports: Design Guidance; Frontier Issues; and Information and Communication Technology • Technical Programs Committee (vote) • Budget Committee • Planning and Evaluation Committee • Election Assistance Commission Report • Executive Director's Report • Public Comment (final 15 minutes of the meeting)

    Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Wednesday, July 13, 2016. Any individual interested in providing comment is asked to pre-register by sending an email to [email protected] with the subject line “Access Board meeting—Public Comment” with your name, organization, state, and topic of comment included in the body of your email. All emails to register for public comment must be received by Wednesday, July 6, 2016. Commenters will be called on in the order by which they pre-registered. Due to time constraints, each commenter is limited to two minutes. Commenters on the telephone will be in a listen-only capacity until they are called on. Use the following call-in number: (877) 701-1628; passcode: 9667 7809 and dial in 5 minutes before the meeting begins at 1:30 p.m.

    All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings. Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see www.access-board.gov/the-board/policies/fragrance-free-environment for more information).You may view the Wednesday, July 13, 2016 meeting through a live webcast from 1:30 p.m. to 3:00 p.m. at: www.access-board.gov/webcast.

    David M. Capozzi, Executive Director.
    [FR Doc. 2016-14889 Filed 6-22-16; 8:45 am] BILLING CODE 8150-01-P
    COMMISSION ON CIVIL RIGHTS Public Meeting of the Indiana Advisory Committee To Discuss Findings and Recommendations Regarding 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, July 20, 2016, from 10:00 a.m.-11:00 a.m. EDT. The Committee will discuss findings and recommendations regarding school discipline policies and practices which may facilitate disparities in juvenile justice involvement and youth incarceration rates on the basis of race, color, disability, or sex, in what has become known as the “School to Prison Pipeline,” in preparation to issue a report to the Commission on the topic. This meeting is open to the public via the following toll free call in number 888-471-3843 conference ID 4507232. 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 invited to make statements during the designated open comment period. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days following 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 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. Findings and Recommendations: “Civil Rights and the School to Prison Pipeline in Indiana” 3. Open Comment 4. Adjournment DATES:

    The meeting will be held on Wednesday July 20, 2016, from 10:00 a.m.-11:00 a.m. EDT.

    Public Call Information:

    Dial: 888-471-3843 Conference ID: 4507232 FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at 312-353-8311 or [email protected]

    Dated: June 20, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-14857 Filed 6-22-16; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the North Carolina Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice 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 North Carolina Advisory Committee will hold a meeting on Friday, June 29, 2016, at 12 p.m. EST for the purpose of discussing and voting on potential summary memorandum project and to discuss a draft report on environmental justice issues in the state.

    DATES:

    The meeting will be held on Wednesday, June 29, 2016 at 12 p.m. EST.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-455-2296, conference ID: 6491793. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are invited to make statements to the Committee during the scheduled open comment period. In addition, members of the public may submit written comments; the comments must be received in the regional office by June 25, 2016. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Southern Regional Office at (404) 562-7000.

    Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, North Carolina Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda • Welcome/Member participation roll call—Jeff Hinton, Regional Director; Matty Lazo-Chadderton, Chairman—NC SAC • North Carolina Advisory Committee discussion and vote on potential summary memorandum project (Coal Ash) to the U.S. Commission on Civil Rights—Matty Lazo-Chadderton, Chair/Staff/Advisory Committee • Public Participation • Adjournment Public Call Information

    Toll-free call-in number: 888-455-2296,

    Conference ID: 6491793.

    Dated: June 13, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-14268 Filed 6-22-16; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Montana Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Montana Advisory Committee to the Commission will convene at 10:00 a.m. (MDT) on Wednesday, July 20, 2016, via teleconference. The purpose of the planning meeting is for the Advisory Committee to review progress of planning to conduct a community forum on Border Town Discrimination Against Native Americans in Billings in late August 2016.

    Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-888-503-8175; Conference ID: 5890742. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-977-8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1-888-503-8175, Conference ID: 5890742. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, August 22, 2016. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=259 and clicking on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Rocky Mountain Regional Office at the above phone number, email or street address.

    Agenda
    Welcome and Roll Call Norma Bixby, Chair, Montana State Advisory Committee Malee V. Craft, Regional Director and Designated Federal Official (DFO) Discussion of Progress Made Towards Community Forum on Border Town Discrimination Montana Advisory Committee DATES:

    Wednesday, July 20, 2016, at 10:00 a.m. (MDT)

    ADDRESSES:

    To be held via teleconference:

    Conference Call Toll-Free Number: 1-888-503-8175, Conference ID: 5890742.

    TDD: Dial Federal Relay Service 1-800-977-8339 and give the operator the above conference call number and conference ID.

    FOR FURTHER INFORMATION CONTACT:

    Malee V. Craft, Regional Director, [email protected], 303-866-1040

    Dated: June 20, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-14858 Filed 6-22-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: U.S. Census Bureau.

    Title: Quarterly Summary of State and Local Government Tax Revenues.

    OMB Control Number: 0607-0112.

    Form Number(s): F-71, F-72, F-73.

    Type of Request: Revision of a currently approved collection.

    Number of Respondents: 7,351.

    Average Hours per Response: F-71—5 minutes; F-72—30 minutes; F-73—20 minutes.

    Burden Hours: 7,978.

    Needs and Uses: State and local government tax collections, amounting to nearly $1.4 trillion annually, constitute approximately 43 percent of all governmental revenues. Quarterly measurement of, and reporting on, these fund flows provides valuable insight into trends in the national economy and that of individual states. Information collected on the type and quantity of taxes collected gives comparative data on how the various levels of government fund their public sector obligations.

    The Census Bureau conducts the Quarterly Summary of State & Local Government Tax Revenues (Q-Tax Survey) to provide quarterly estimates of state and local government tax revenue at a national level, as well as detailed tax revenue data for individual states. It serves as a timely source of tax data for many data users and policy makers and is the most current information available on a nationwide basis for government tax collections. There are three components to the Q-Tax Survey. The first component is the Quarterly Survey of Property Tax Collections (F-71), which collects property tax data from local governments. The second component is the Quarterly Survey of State Tax Collections (F-72), which collects data comprised of 25 different tax categories for all 50 states. The third component is the Quarterly Survey of Selected Non-Property Taxes (F-73), which collects local tax revenue data for three taxes: sales and gross receipts taxes, individual income taxes, and corporation net income taxes.

    The Census Bureau requests a change from paper forms to all-electronic data collection methods for the Q-Tax Survey. The Quarterly Survey of Property Tax Collections (F-71) and Quarterly Survey of Selected Non-Property Taxes (F-73) components will be collected electronically via Centurion, the Census Bureau's primary online reporting system. For the Quarterly Survey of State Tax Collections (F-72) component, respondents will be emailed a spreadsheet to fill out and return electronically.

    The Census Bureau conducts the three components of the Q-Tax Survey to collect state and local government tax data for this data series established in 1962. Tax collection data are used to measure economic activity for the Nation as a whole, as well as for comparison among the states. These data are also used in comparing the mix of taxes employed by individual states and in determining the revenue raising capacity of different types of taxes in different states.

    Key users of these data include the Bureau of Economic Analysis (BEA), the Federal Reserve Board (FRB), and the Department of Housing and Urban Development (HUD) who rely on these data to provide the most current information on the financial status of state and local governments. These data are included in the quarterly estimates of the National Income and Product Accounts developed by BEA. HUD has used the property tax data as one of nine cost indicators for developing Section 8 rent adjustments. Legislators, policy makers, administrators, analysts, economists, and researchers use these data to monitor trends in public sector revenues. Journalists, teachers, and students use these data as well for their research purposes.

    Affected Public: State, local, or Tribal government.

    Frequency: Quarterly.

    Respondent's Obligation: Voluntary.

    Legal Authority: Title 13 U.S.C., Sections 161 and 182.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: June 17, 2016. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2016-14838 Filed 6-22-16; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and Opportunity for Public Comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [6/11/2016 through 6/17/2016] Firm name Firm address Date accepted for
  • investigation
  • Product(s)
    Marlen Textiles, Inc 500 Orchard Street, New Haven, MO 63068-1108 6/16/2016 The firm is a manufacturer of economy fabrics used to make boat covers, tarps, furniture covers, awnings, tents and other products.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Dated: June 17, 2016. Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-14855 Filed 6-22-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-88-2016] Foreign-Trade Zone 18—San Jose, California; Application for Subzone Expansion; Subzone 18G; Tesla Motors, Inc.; Palo Alto and Fremont, California

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the City of San Jose, California, grantee of FTZ 18, requesting to expand Subzone 18G on behalf of Tesla Motors, Inc., located in Palo Alto and Fremont, California. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on June 15, 2016.

    Subzone 18G was approved on September 20, 2012 (77 FR 60672-60673, October 4, 2012) and currently consists of two sites: Site 1 (25.2 acres)—3500 Deer Creek Road, Palo Alto; and, Site 2 (210 acres)—45550 Fremont Boulevard, Fremont. The applicant is now requesting authority to expand the subzone to include an additional 24.5 acres located adjacent to Site 2. No additional production authority is being requested at this time. The expanded subzone would be subject to the existing activation limit of FTZ 18.

    In accordance with the FTZ Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is August 2, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to August 17, 2016.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Christopher Kemp at [email protected] or (202) 482-0862.

    Dated: June 15, 2016. Elizabeth Whiteman, Acting Executive Secretary.
    [FR Doc. 2016-14809 Filed 6-22-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-843] Prestressed Concrete Steel Rail Tie Wire From Mexico: Final Results of Antidumping Duty Administrative Review; 2013-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On March 9, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on prestressed concrete steel rail tie wire (PC tie wire) from Mexico.1 The period of review (POR) is December 12, 2013, through May 31, 2015. The review covers one producer/exporter of the subject merchandise, Aceros Camesa, S.A. de C.V. (Camesa). We gave interested parties an opportunity to comment on the Preliminary Results. After considering the comments received, we made no changes to our preliminary margin calculations, and we continue to find that Camesa made sales of subject merchandise to the United States at prices below normal value. Camesa's final dumping margin is listed below in the section entitled “Final Results of the Review.”

    1See Prestressed Concrete Steel Rail Tie Wire From Mexico: Preliminary Results of the Antidumping Duty Administrative Review; 2013-2105, 81 FR 12466 (March 9, 2016) (Preliminary Results).

    DATES:

    Effective Date: June 23, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Trainor or Aqmar Rahman, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-4007 and (202) 482-0768, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    For a complete description of the events following the publication of the Preliminary Results, see the Issues and Decision Memorandum.2 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's AD and Countervailing Duty (CVD) Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    2See memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Prestressed Concrete Steel Rail Tie Wire from Mexico; 2013-2015,” dated concurrently with and adopted by this notice (Issues and Decision Memorandum).

    The Department conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

    Scope of the Order

    The product covered by this order is prestressed concrete steel rail tie wire. This product is classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheading 7217.10.8045, but may also be classified under subheadings 7217.10.7000, 7217.10.8025, 7217.10.8030, 7217.10.8090, 7217.10.9000, 7229.90.1000, 7229.90.5016, 7229.90.5031, 7229.90.5051, 7229.90.9000, and 7312.10.3012. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.3

    3 A full description of the scope of the order is contained in the Issues and Decision Memorandum.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues which parties raised and to which we respond in the Issues and Decision Memorandum is attached to this notice as Appendix I.

    Final Results of the Review

    As a result of this review, the Department determines that a weighted-average dumping margin of 6.33 percent exists for Camesa for the period December 12, 2013, through May 31, 2015.

    Assessment Rates

    The Department determines, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.4 We calculated an importer-specific ad valorem duty assessment rate based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales to that importer. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if the importer-specific assessment rate is above de minimis.

    4See 19 CFR 351.212(b)(1).

    We intend to issue instructions to CBP 41 days after the date of publication of the final results of this review.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Camesa will be the rate established in these final results; (2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a previous review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 9.99 percent, the all-others rate made effective by the LTFV investigation. These deposit requirements shall remain in effect until further notice.

    Notification to Importers

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) 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 could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification to Interested Parties

    This notice serves as the only 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 return/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 administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.

    Dated: June 15, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Margin Calculations IV. Scope of the Order V. Discussion of the Issues A. Clerical Error in the Draft Liquidation Instructions B. Camesa's General and Administrative (G&A) Expense Offset VI. Recommendation
    [FR Doc. 2016-14913 Filed 6-22-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE603 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gustavus Ferry Terminal Improvements Project AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the Alaska Department of Transportation and Public Facilities (ADOT&PF) for authorization to take marine mammals incidental to reconstructing the existing Gustavus Ferry Terminal located in Gustavus, Alaska. The ADOT&PF requests that the incidental harassment authorization (IHA) be valid for one year from September 1, 2017 through August 31, 2018. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to the ADOT&PF to incidentally take, by harassment, small numbers of marine mammals for its ferry terminal improvements project in Gustavus, AK.

    DATES:

    Comments and information must be received no later than July 25, 2016.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910, and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted to the Internet at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability: An electronic copy of ADOT&PF's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    National Environmental Policy Act

    NMFS is preparing an Environmental Assessment (EA) in accordance with National Environmental Policy Act (NEPA) and the regulations published by the Council on Environmental Quality and will consider comments submitted in response to this notice as part of that process. The draft EA will be posted at the foregoing Web site once it is finalized.

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. 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 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 31, 2015, NMFS received an application from the ADOT&PF for the taking of marine mammals incidental to reconstructing the existing ferry terminal at Gustavus, Alaska, referred to as the Gustavus Ferry Terminal. On April 15, 2016, NMFS received a revised application. NMFS determined that the application was adequate and complete on April 20, 2016. ADOT&PF proposes to conduct in-water work that may incidentally harass marine mammals (i.e., pile driving and removal). This IHA would be valid from September 1, 2017 through August 31, 2018.

    Proposed activities included as part of the Gustavus Ferry Improvements project with potential to affect marine mammals include vibratory pile driving and pile removal, as well as impact hammer pile driving.

    Species with the expected potential to be present during the project timeframe include harbor seal (Phoca viutlina), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), killer whale (Orcinus orca), humpback whale (Megaptera novaeangliae), and minke whale (Balaenoptera acutorostra).

    Description of the Specified Activity Overview

    The purpose of the project is to improve the vehicle transfer span and dock such that damage during heavy storms is prevented, and to improve the safety of vehicle and pedestrian transfer operations. ADOT&PF requested an IHA for work that includes removal of the existing steel bridge float and restraint structure and replacing it with two steel/concrete bridge lift towers capable of elevating the relocated steel transfer bridge above the water when not in use. Each tower would be supported by four 30-inch steel piles.

    Dates and Duration

    Pile installation and extraction associated with the Gustavus Ferry Terminal project will begin no sooner than September 1, 2017 and will be completed no later than August 31, 2018 (one year following IHA issuance). Project activities are proposed to occur during two time periods. The first period will occur in Fall of 2017, with pile driving/removal and in-water work occurring during the period of September through November. The second period is scheduled for Spring of 2018, with pile driving/removal and in-water work occurring during the period of March through May.

    Pile driving/removal is estimated to occur for a total of about 114 hours over the course of 16 to 50 days.

    Specific Geographic Region

    The proposed activities will occur at the Gustavus Ferry Terminal located in Gustavus, Alaska on the Icy Passage water body in Southeast Alaska (See Figures 1 and 2 in the Application).

    Detailed Description of Activities

    ADOT&PF plans to improve the ferry terminal in Gustavus, Alaska. ADOT&PF will remove the existing steel bridge float and restraint structure and replace it with two steel/concrete bridge lift towers capable of elevating the relocated steel transfer bridge above the water when not in use. Each tower would be supported by four 30-inch steel piles. The project would also expand the dock by approximately 4,100 square feet, requiring 34 new 24-inch steel piles; construct a new steel six-pile (24-inch) bridge abutment; relocate the steel transfer bridge, vehicle apron, and aluminum pedestrian gangway; extract 16 steel piles; relocate the log float to the end of the existing float structure (requiring installation of three 12.75-inch steel piles); install a new harbor access float (assembled from a portion of the existing bridge float) and a steel six-pile (30-inch) float restraint structure; and provide access gangways and landing platforms for lift towers and an access catwalk to the existing breasting dolphins. Contractors on previous ADOT&PF dock projects have typically driven piles using the following equipment:

    Air Impact Hammers: Vulcan 512/Max Energy 60,000 foot-pounds (ft-lbs); Vulcan 06/Max Energy 19,000 ft-lbs; ICE/Max Energy 19,500 to 60,000 ft-lbs.

    Diesel Impact Hammer: Delmag D30/Max Energy 75,970 ft-lbs.

    Vibratory Hammers: ICE various models/7,930 to 13,000 pounds static weight.

    Similar equipment may be used for the proposed project, though each contractor's equipment may vary.

    ADOT&PF anticipates driving one to three piles per day, which accounts for setting the pile in place, positioning the barge while working around existing dock and vessel traffic, splicing sections of pile, and driving the piles. Actual pile driving/removal time for nineteen 12.75-inch-, forty 24-inch-, and fourteen 30-inch-diameter steel piles would be approximately 57 hours of impact driving and 114 hours of vibratory driving over the course of 16 to 50 days in 2017. (See Table 1.)

    Table 1—Pile-Driving Schedule Description Project components Dock
  • extension
  • Bridge
  • abutment
  • Lift towers Access float Log float Pile
  • removal
  • Piles
  • installed/
  • total piles
  • Installation/
  • Removal
  • per day
  • Number of Piles 34 6 8 6 3 16 57/73 3 piles/day (maximum). Pile Size (Diameter) 24-inch 24-inch 30-inch 30-inch 12.75-inch 12.75-inch. Total Strikes (Impact) 20,400 3,600 4,800 3,600 1,800 0 34,200 1,800 blows/day. Total Impact Time 34 hrs 6 hrs 8 hrs 6 hrs 3 hrs 0 57 hrs 3 hrs/day. Total Vibratory Time 54 hrs 9 hrs 13 hrs 9 hrs 5 hrs 24 hrs 114 hrs 6 hrs/day.
    Description of Marine Mammals in the Area of the Specified Activity

    Marine waters in Icy Passage support many species of marine mammals, including pinnipeds and cetaceans. There are nine marine mammal species documented in the waters of Icy Passage (Dahlheim et al., 2009; NMFS 2013; and personal communications with Janet Neilson, National Park Service (NPS); Tod Sebens, Cross Sound Express, LLC (CSE); and Stephen Vanderhoff, Spirit Walker Expeditions (SWE)). Two of the species are known to occur near the Gustavus Ferry terminal: The harbor seal and Steller sea lion. The remaining seven species may occur in Icy Passage but less frequently and farther from the ferry terminal: Harbor porpoise, Dall's porpoise, Pacific white-sided dolphin, killer whale, gray whale, humpback whale, and minke whale.

    Although listed on the NMFS MMPA mapper (NMFS 2014), gray whale sightings in Icy Strait are very rare and there have been only eight sightings since 1997 (Janet Neilson, NPS, personal communication). None of these sightings were in Icy Passage. Therefore, exposure of the gray whale to project impacts is considered unlikely and take is not requested for this species.

    The range of Pacific white-sided dolphin is also suggested to overlap with the project action area as portrayed on the NMFS MMPA mapper, but no sightings have been documented in the project vicinity (Janet Neilson, NPS, personal communication, Dahlheim et al., 2009). Therefore, exposure of the Pacific white-sided dolphin to project impacts is considered unlikely and take is not requested for this species. Table 2 presents the species most likely to occur in the area.

    Table 2—Marine Mammal Species Potentially Present in Region of Activity Common name Scientific name Stock abundance
  • estimate 1
  • ESA status MMPA status Frequency of occurence 2
    Harbor seal Phoca vitulina 7,210 Not listed Not Strategic, non-depleted Likely. Steller sea lion Eumetopias jubatus 49,497 (western distinct population segment in Alaska)/60,131 (eastern stock) Endangered (western Distinct Population Segment) Strategic, depleted Likely. Dall's porpoise Phocoenoides dalli Unknown Not listed Not Strategic, non-depleted Infrequent. Harbor porpoise Phocoena phocoena 11,146 Not listed Strategic, non-depleted Likely. Humpback whale Megaptera novaeangliae 10,252 Endangered Strategic, depleted Infrequent. Killer whale Orcinus orca 261 (Northern resident)/587 (Gulf of Alaska transient)/243 (West Coast transient) Not listed Strategic, non-depleted Infrequent. Minke whale Balaenoptera acutorostra Unknown Not listed Not Strategic/non-depleted Infrequent. 1 NMFS marine mammal stock assessment reports at: http://www.nmfs.noaa.gov/pr/sars/species.htm. 2 Infrequent: Confirmed, but irregular sightings; Likely: Confirmed and regular sightings of the species in the area year-round.

    Although they are documented near the ferry terminal, harbor seal populations in Glacier Bay are declining (Janet Neilson, NPS, personal communication). It is estimated that less than 10 individuals are typically seen near the ferry dock during charter boat operations in the spring and summer (Tod Sebens, CSE, Stephen Vanderhoff, SWE, personal communication). Steller sea lions are common in the ferry terminal area during the charter fishing season (May to September) and are known to haul out on the public dock (Bruce Kruger, Alaska Department of Fish and Game (ADF&G), personal communication). The nearest natural Steller sea lion haulout sites are located on Black Rock on the south side of Pleasant Island and Carolus Point west of Point Gustavus (Mathews et al., 2011).

    There are confirmed sightings of Dall's porpoise, harbor porpoise, humpback whale, killer whale, and minke whale in Icy Passage (Janet Neilson, NPS, Tod Sebens, CSE, Stephen Vanderhoff, SWE, personal communication). However, sightings are less frequent in Icy Passage than in Icy Strait. Opportunistic sightings of marine mammals by NPS during humpback whale surveys and whale watching tour companies operating out of Gustavus (CSE and WSE operate 100 days of tours in the May to September season), provide the following estimates for each spring/summer season:

    • Harbor porpoise are seen in Icy Passage on about 75+ percent of trips.

    • Three to four minke whale sightings/season in Icy Strait. One or two in Icy Passage.

    • Dall's porpoise have four to 12 sightings/season, mostly in Icy Strait.

    • Killer whales have about 12 sightings/season in Icy Strait and one or two sightings a year in Icy Passage.

    • Humpback whale sightings in Icy Passage are infrequent but on occasion they are seen between the ferry terminal and Pleasant Island (Stephen Vanderhoff, SWE, personal communication).

    By most measures, the populations of marine mammals that utilize Icy Strait are healthy and increasing. Populations of humpback whales using Glacier Bay and surrounding areas are increasing by 5.1 percent per year (Hendrix et al. 2012). Steller sea lions have increased in the Glacier Bay region by 8.2 percent per year from the 1970's to 2009, representing the highest rate of growth for this species in Alaska (Mathews et al. 2011). In addition, a Steller sea lion rookery and several haulouts have recently been established in the Glacier Bay region (Womble et al. 2009).

    In the species accounts provided here, we offer a brief introduction to the species and relevant stock that are likely to be taken as well as available information regarding population trends and threats, and describe any information regarding local occurrence.

    Harbor Seal

    Harbor seals occurring in Icy Passage belong to the Glacier Bay/Icy Strait (GB/IS) harbor seal stock. The current statewide abundance estimate for this stock is 7,210 (Muto and Angliss 2015). The GB/IS harbor seals have been rapidly declining despite stable or slightly increasing trends in nearby populations (Womble and Gende 2013). A suite of recent studies suggest that (1) harbor seals in Glacier Bay are not significantly stressed due to nutritional constraints, (2) the clinical health and disease status of seals within Glacier Bay is not different than seals from other stable or increasing populations, and (3) disturbance by vessels does not appear to be a primary factor driving the decline. Long-term monitoring of harbor seals on glacial ice has occurred in Glacier Bay since the 1970s and has shown this area to support one of the largest breeding aggregations in Alaska. After a dramatic retreat of Muir Glacier, in the East Arm of Glacier Bay, between 1973 and 1986 (more than 7 kilometers) and the subsequent grounding and cessation of calving in 1993, floating glacial ice was greatly reduced as a haulout substrate for harbor seals and ultimately resulted in the abandonment of upper Muir Inlet by harbor seals.

    Steller Sea Lion

    Steller sea lions occurring in Icy Passage could belong to either the western or eastern U.S. stock. The current total population estimate for the western stock in Alaska is estimated at 49,497 based on 2014 survey results (Muto and Angliss 2015). To get this estimate, pups were counted during the breeding season, and the number of births is estimated from the pup count. The western stock in Alaska shows a positive population trend estimate of 1.67 percent.

    The current total population estimate for the eastern stock of Steller sea lions is estimated at 60,131 based on counts made between 2009 and 2014 (Muto and Angliss 2015). To get this estimate, pups were counted during the breeding season, and the number of births is estimated from the pup count. The best available information indicates the eastern stock of Steller sea lion increased at a rate of 4.18 percent per year (90 percent confidence bounds of 3.71 to 4.62 percent per year) between 1979 and 2010 based on an analysis of pup counts in California, Oregon, British Columbia, and Southeast Alaska.

    Dall's Porpoise

    There are no reliable abundance data for the Alaska stock of Dall's porpoise. Surveys for the Alaska stock of Dall's porpoise are greater than 21 years old (Allen and Angliss 2014). A population estimate from 1987 to 1991 was 83,400. Since the abundance estimate is based on data older than eight years, NMFS does not consider the estimate to be valid and the minimum population number is also considered unknown.

    Harbor Porpoise

    There are three harbor porpoise stocks in Alaska, including the Southeast Alaska stock, Gulf of Alaska stock, and the Bering Sea stock. Only the Southeast Alaska stock occurs in the project vicinity. Harbor porpoise numbers for the Southeast Alaska stock are estimated at 11,146 animals (Allen and Angliss 2014). Abundance estimates for harbor porpoise occupying the inland waters of Southeast Alaska were 1,081 in 2012. However, this number may be biased low due to survey methodology.

    Humpback Whale

    The central North Pacific stock of humpback whales occurs in the project area. Estimates of this stock are determined by winter surveys in Hawaiian waters. Point estimates of abundance for Hawaii ranged from 7,469 to 10,252; the estimate from the best model was 10,252 (Muto and Angliss 2015). Using the population estimate of 10,252, the minimum estimate for the central North Pacific humpback whale stock is 9,896 (Muto and Angliss 2015).

    Since 1985, the NPS has been monitoring humpback whales in both Glacier Bay National Park and Icy Strait and has published annual reports (http://www.nps.gov/glba/naturescience/whale_acoustic_reports.htm). The NPS typically surveys Icy Strait, located south of Icy Passage, once a week between June 1 and August 31, with most survey effort focused in the area east of Point Gustavus and Pleasant Island. In 2013, 202 humpback whales were documented in Icy Strait during the NPS monitoring period; this was a 14 percent increase over the previous high count of 177 whales in 2012 (Neilson et al., 2014). However, in 2014, a 39 percent decrease in abundance was observed, with only 124 whales documented in Icy Strait. The reasons for this decline in local abundance is not known, but NPS speculated that a magnitude 6.1 earthquake centered in Palma Bay that occurred on July 25, 2014, may have caused unfavorable environmental conditions in the Glacier Bay region. The earthquake and aftershocks caused one or more submarine landslides that increased turbidity in the region and may have decreased humpback whale foraging success over a period of several weeks in lower Glacier Bay and Icy Strait. In response, humpback whales may have shifted their distribution to other areas, such as Frederick Sound, seeking better foraging conditions (Neilson et al., 2015).

    Humpback whales are present in Southeast Alaska in all months of the year, but at substantially lower numbers in the fall and winter. At least 10 individuals were found to over-winter near Sitka, and NMFS researchers have documented one whale that over-wintered near Juneau. It is unknown how common over-wintering behavior is in most areas because there is minimal or no photographic identification effort in the winter in most parts of Southeast Alaska. Late fall and winter whale habitat in Southeast Alaska appears to correlate with areas that have over-wintering herring (lower Lynn Canal, Tenakee Inlet, Whale Bay, Ketchikan, Sitka Sound). In Glacier Bay and Icy Strait, the longest sighting interval recorded by NPS was over a span of 219 days, between April 17 and November 21, 2002, but overwintering in this region is expected to be low (Gabriele et al., 2015).

    Killer Whale

    Killer whales occurring in Icy Passage could belong to one of three different stocks: Eastern North Pacific Northern residents stock (Northern residents); Gulf of Alaska, Aleutian Islands, and Bering Sea transient stock (Gulf of Alaska transients); or West Coast transient stock. The Northern resident stock is a transboundary stock, and includes killer whales that frequent British Columbia, Canada, and southeastern Alaska (Allen and Angliss 2014). Photo-identification studies since 1970 have catalogued every individual belonging to the Northern resident stock and in 2010 the population was composed of three clans representing a total of 261 whales.

    In recent years, a small number of the Gulf of Alaska transients (identified by genetics and association) have been seen in southeastern Alaska; previously only West Coast transients had been seen in the region (Allen and Angliss 2014). Therefore, the Gulf of Alaska transient stock occupies a range that includes southeastern Alaska. Photo-identification studies have identified 587 individual whales in this stock.

    The West Coast transient stock includes animals that occur in California, Oregon, Washington, British Columbia, and southeastern Alaska. Analysis of photographic data identifies 243 individual transient killer whales (Muto and Angliss 2015). The total number of transient killer whales reported above should be considered a minimum count for the West Coast transient stock.

    Minke Whale

    The Alaska stock of minke whales occurs in Icy Strait and Southeast Alaska. At this time, it is not possible to produce a reliable estimate of minimum abundance for this wide ranging stock. No estimates have been made for the number of minke whales in the entire North Pacific. Surveys of the Bering Sea, and from Kenai Fjords in the Gulf of Alaska to the central Aleutian Islands, estimate 1,003 and 1,233 animals, respectively (Allen and Angliss 2014).

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that stressors, (e.g., pile driving) and potential mitigation activities, associated with the improvements at Gustavus Ferry Terminal may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include an analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation 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. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from sound produced by impact and vibratory pile driving.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the loudness of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), the reference intensity for sound in water is one micropascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 μPa and all airborne sound levels in this document are referenced to a pressure of 20 μPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

    Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

    Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

    Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

    Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound. Representative levels of anthropogenic sound are displayed in Table 3.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    Table 3—Representative Sound Levels of Anthropogenic Sources Sound source Frequency range
  • (Hz)
  • Underwater sound level Reference
    Small vessels 250-1,000 151 dB rms at 1 m Richardson et al., 1995. Tug docking gravel barge 200-1,000 149 dB rms at 100 m Blackwell and Greene, 2002. Vibratory driving of 72-in steel pipe pile 10-1,500 180 dB rms at 10 m Reyff, 2007. Impact driving of 36-in steel pipe pile 10-1,500 195 dB rms at 10 m Laughlin, 2007. Impact driving of 66-in cast-in-steel-shell (CISS) pile 10-1,500 195 dB rms at 10 m Reviewed in Hastings and Popper, 2005.

    High levels of vessel traffic are known to elevate background levels of noise in the marine environment. For example, continuous sounds for tugs pulling barges have been reported to range from 145 to 166 dB re 1 μPa rms at 1 meter from the source (Miles et al., 1987; Richardson et al., 1995; Simmonds et al., 2004). Ambient underwater noise levels in Gustavus Ferry Terminal project area are both variable and relatively high, and are expected to mask some sounds of pile installation and pile extraction.

    In-water construction activities associated with the project include impact and vibratory pile driving and removal. There are two general categories of sound types: Impulse and non-pulse (defined in the following). Vibratory pile driving is considered to be continuous or non-pulsed while impact pile driving is considered to be an impulse or pulsed sound type. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts. Note that information related to impact hammers is included here for comparison.

    Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    The likely or possible impacts of the proposed pile driving program at the Gustavus Ferry Terminal on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel. Any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors could include effects of heavy equipment operation and pile installation and pile removal at the Ferry Terminal.

    Marine Mammal Hearing

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al., (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    Low-frequency cetaceans (mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 25 kHz (extended from 22 kHz; Watkins, 1986; Au et al., 2006; Lucifredi and Stein, 2007; Ketten and Mountain, 2009; Tubelli et al., 2012);

    Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; now considered to include two members of the genus Lagenorhynchus on the basis of recent echolocation data and genetic data [May-Collado and Agnarsson, 2006; Kyhn et al., 2009, 2010; Tougaard et al., 2010]): Functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and

    Pinnipeds in water: Functional hearing is estimated to occur between approximately 75 Hz to 100 kHz for Phocidae (true seals) and between 100 Hz and 48 kHz for Otariidae (eared seals), with the greatest sensitivity between approximately 700 Hz and 20 kHz. The pinniped functional hearing group was modified from Southall et al., (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth et al., 2013).

    As mentioned previously in this document, seven marine mammal species (five cetacean and two pinniped) may occur in the project area. Of the seven species likely to occur in the proposed project area, two are classified as low frequency cetaceans (i.e., humpback whale, minke whale), one is classified as a mid-frequency cetacean (i.e., killer whale), and two are classified as high-frequency cetaceans (i.e., harbor porpoise, Dall's porpoise) (Southall et al., 2007). Additionally, harbor seals are classified as members of the phocid pinnipeds in water functional hearing group, while Steller sea lions are grouped under the Otariid pinnipeds in water functional hearing group. A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Acoustic Impacts

    Potential Effects of Pile Driving Sound—The effects of sounds from pile driving might result in one or more of the following: Temporary or permanent hearing impairment; non-auditory physical or physiological effects; behavioral disturbance; and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving on marine mammals are dependent on several factors, including: The size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the received level and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. Shallow environments are typically more structurally complex, which leads to rapid sound attenuation. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulse sounds on marine mammals. Potential effects from impulse sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions, (e.g., orientation, communication, finding prey, avoiding predators); thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall et al., 2007). The following subsections discuss in somewhat more detail the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. Available data on TTS in marine mammals are summarized in Southall et al. (2007).

    Given the available data, the received level of a single pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa2−s (i.e., 186 dB sound exposure level (SEL) or approximately 221-226 dB p-p (peak)) in order to produce brief, mild TTS. Exposure to several strong pulses that each have received levels near 190 dB rms (175-180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy.

    The above TTS information for odontocetes is derived from studies on the bottlenose dolphin (Tursiops truncatus) and beluga whale (Delphinapterus leucas). There is no published TTS information for other species of cetaceans. However, preliminary evidence from a harbor porpoise exposed to pulsed sound suggests that its TTS threshold may have been lower (Lucke et al., 2009). As summarized above, data that are now available imply that TTS is unlikely to occur unless odontocetes are exposed to pile driving pulses stronger than 180 dB re 1 μPa (rms).

    Permanent Threshold Shift—When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source can incur TTS, it is possible that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    PTS is considered auditory injury (Southall et al., 2007). Irreparable damage to the inner or outer cochlear hair cells may cause PTS, however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007).

    Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on anatomical similarities. PTS might occur at a received sound level at least several dB above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses as received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and probably greater than 6 dB (Southall et al., 2007). On an SEL basis, Southall et al., (2007) estimated that received levels would need to exceed the TTS threshold by at least 15 dB for there to be risk of PTS. Thus, for cetaceans, Southall et al., (2007) estimate that the PTS threshold might be an M-weighted SEL (for the sequence of received pulses) of approximately 198 dB re 1 μPa2-s (15 dB higher than the TTS threshold for an impulse). Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

    Measured source levels from impact pile driving can be as high as 214 dB rms. Although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high received levels of sound before exhibiting aversive behaviors. Experiments on a beluga whale showed that exposure to a single watergun impulse at a received level of 207 kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within four minutes of the exposure (Finneran et al., 2002). Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more sound exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa2-s) in the aforementioned experiment (Finneran et al., 2002). However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity sound levels for a prolonged period of time. Based on the best scientific information available, these SPLs are far below the thresholds that could cause TTS or the onset of PTS.

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007).

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices, but also including pile driving) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds.

    With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): 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 sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haul-outs or rookeries). Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006).

    The biological significance of many of these behavioral disturbances is difficult to predict. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Changes in diving/surfacing patterns;

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking—Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    Masking occurs at specific frequency bands, so understanding the frequencies that the animals utilize is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds, such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Masking has the potential to impact species at the population or community levels as well as at individual levels. Masking affects both senders and receivers of the signals and can potentially in certain circumstances have long-term chronic effects on marine mammal species and populations. Recent research suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, and that most of these increases are from distant shipping (Hildebrand, 2009). All anthropogenic sound sources, such as those from vessel traffic, pile driving, and dredging activities, contribute to the elevated ambient sound levels, thus intensifying masking.

    Vibratory pile driving may potentially mask acoustic signals important to marine mammal species. However, the short-term duration and limited affected area would result in insignificant impacts from masking.

    Acoustic Effects, Airborne—Pinnipeds that occur near the project site could be exposed to airborne sounds associated with pile driving that have the potential to cause behavioral harassment, depending on their distance from pile driving activities. Cetaceans are not expected to be exposed to airborne sounds that would result in harassment as defined under the MMPA.

    Airborne noise will primarily be an issue for pinnipeds that are swimming at the surface or hauled out near the project site within the range of noise levels elevated above the acoustic criteria in Table 4 below. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been taken as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple incidents of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.

    Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped responses to vessels may result in behavioral changes, including: Greater variability in the dive, surfacing, and respiration patterns; changes in vocalizations; and changes in swimming speed or direction (NRC, 2003). There will be a temporary and localized increase in vessel traffic during construction.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Pile Driving Effects on Prey—Construction activities would produce continuous (i.e., vibratory pile driving, down-hole drilling) sounds and pulsed (i.e., impact driving) sounds.

    Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality.

    The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

    Effects to Foraging Habitat—Pile installation may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. ADOT&PF must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al., 1980). Cetaceans are not expected to be close enough to the project pile driving areas to experience effects of turbidity, and any pinnipeds will be transiting the area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals. Furthermore, pile driving and removal at the project site will not obstruct movements or migration of marine mammals.

    Proposed Mitigation Measures

    In order to issue an IHA 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 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. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat. 50 CFR 216.104(a)(11). For the proposed project, ADOT&PF worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, and to shut down operations and monitor marine mammals within designated zones of influence corresponding to NMFS' current Level A and B harassment thresholds, which are depicted in Table 5 found later in the Estimated Take by Incidental Harassment section.

    In addition to the measures described later in this section, ADOT&PF would employ the following standard mitigation measures:

    (a) Conduct briefings between construction supervisors and crews, and marine mammal monitoring team, prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location; or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile).

    (c) To limit the amount of waterborne noise, a vibratory hammer will be used for initial driving, followed by an impact hammer to proof the pile to required load-bearing capacity.

    Establishment of Shutdown Zone—For all pile driving activities, ADOT&PF will establish a shutdown zone. Shutdown zones are intended to contain the area in which SPLs equal or exceed the 180/190 dB (rms) acoustic injury threshold, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. Nominal radial distances for shutdown zones are shown in Table 5.

    Establishment of Disturbance Zone or Zone of Influence—Disturbance zones or zones of influence (ZOI) are the areas in which SPLs equal or exceed 160 dB rms for impact driving and 120 dB rms for vibratory driving. Disturbance zones provide utility for monitoring by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see “Proposed Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 5. We discuss monitoring objectives and protocols in greater depth in “Proposed Monitoring and Reporting.”

    Soft Start—The use of a soft-start procedure is believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. Soft-start techniques for impact pile driving will be conducted in accordance with the Anchorage Fish and Wildlife Field Office (AFWFO, 2012) Observer Protocols. For impact pile driving, contractors will be required to provide an initial set of strikes from the hammer at 40 percent energy, each strike followed by no less than a 30-second waiting period. This procedure will be conducted a total of three times before impact pile driving begins.

    Mitigation Conclusions

    We have carefully evaluated ADOT&PF's proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect 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: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.

    Any mitigation measure(s) we prescribe 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 below:

    (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 number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary 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 our evaluation of ADOT&PF's proposed measures, including information from monitoring of implementation of mitigation measures very similar to those described here under previous IHAs from other marine construction projects, we have 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.

    Proposed Monitoring and Reporting

    In order to issue an IHA 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 incidental take 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 are expected to be present in the proposed action area. ADOT&PF submitted a marine mammal monitoring plan as part of the IHA application. It can be found in Appendix B of the Application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.

    Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

    • Occurrence of marine mammal species in action area (e.g.,presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) Affected species (e.g., life history, dive patterns); (3) Co-occurrence of marine mammal species with the action; or (4) Biological or behavioral context of exposure (e.g., age, calving or feeding areas).

    • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.

    • Effects on marine mammal habitat and resultant impacts to marine mammals.

    • Mitigation and monitoring effectiveness.

    Proposed Monitoring Measures

    Monitoring Protocols—Monitoring will be conducted by qualified marine mammal observers (MMO), who are trained biologists, with the following minimum qualifications:

    (a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of spotting scopes and binoculars may be necessary to correctly identify the target.

    (b) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    (c) Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).

    (d) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.

    (e) Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; dates and times when marine mammals were present at or within the defined disturbance or injury zones; dates and times when in-water construction activities were suspended to avoid injury from construction noise; etc.

    (f) Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    In order to effectively monitor the pile driving monitoring zones, the MMO will be positioned at the best practical vantage point. The monitoring position may vary based on pile driving activities and the locations of the piles and driving equipment. These may include the catwalk at the ferry terminal, the contractor barge, or another location deemed to be more advantageous. The monitoring location will be identified with the following characteristics: 1. Unobstructed view of pile being driven; 2. Unobstructed view of all water within a 1.9 km (vibratory driving) and 1.6 km (impact driving) radius of each pile; 3. Clear view of pile-driving operator or construction foreman in the event of radio failure; and 4. Safe distance from pile driving activities in the construction area.

    A single MMO will be situated on the Ferry Terminal to monitor the appropriate injury and behavioral disturbance zones during all pile driving activities. Because the action area for vibratory driving disturbance extends for 1.9 kilometers from the Gustavus Ferry Terminal into Icy Strait/Passage, it would be difficult to monitor this area effectively with only terminal-based MMOs. Due to potentially severe and highly unpredictable weather conditions, ADOT&PF has concluded that the use of Pleasant Island-based, mainland-based, or vessel-based MMOs would be infeasible and, in many circumstances, unsafe. However, when possible, ADOT&PF will augment land-based monitoring with information from boats in Icy Strait/Passage. Specifically, the MMO will coordinate with the NPS and whale-watching charters for recent observations of marine mammals within Icy Strait/Passage. This will help inform the MMO of marine mammals in the area. NPS and whale-watching charters could also inform monitoring personnel of any marine mammals seen approaching the disturbance zone. The MMO will conduct telephone checks with NPS and whale-watching charters to monitor the locations of humpback whales and Steller sea lions, which are listed under the Endangered Species Act, within Icy Strait/Passage. Checks will begin three days before pile-driving operations to ascertain the location and movements of these listed species in relation to the disturbance zones. Once construction has begun, checks will be made in the evening after the completion of pile driving activities, in preparation of the next day's monitoring. Use of the organizations identified above to augment monitoring efforts will depend on their observation schedules and locations within the Glacier Bay region. It is expected that these organizations will only be active in May and September during the pile-driving season.

    The following additional measures apply to visual monitoring:

    • Monitoring will begin 30 minutes prior to pile driving. This will ensure that all marine mammals in the monitoring zone are documented and that no marine mammals are present in the injury zone;

    • If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals. Their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.);

    • When a marine mammal is observed, its location will be determined using a rangefinder to verify distance and a GPS or compass to verify heading;

    • If any cetaceans or pinnipeds are observed approaching injury zones, impact pile-driving activities will be immediately halted. The MMO will immediately radio to alert the contractor and raise a red flag, requiring an immediate “all-stop.” Impact pile-driving activities will resume when the animal is no longer proximal to the injury zone or 30 minutes have passed without re-sighting the animal near the zone. The observer will continue to monitor the animal until it has left the larger disturbance zones;

    • The MMOs will record any cetacean or pinniped present in the disturbance zone;

    • MMOs will record all harbor seals present in the in-air disturbance zone. This applies to animals that are hauled out and those that have surfaced while swimming;

    • At the end of the pile-driving day, post-construction monitoring will be conducted for 30 minutes beyond the cessation of pile driving;

    • If any cetaceans or pinnipeds are observed approaching the 10-meter exclusion zone, heavy equipment activities will be immediately halted. The observer will immediately radio to alert the contractor and raise a red flag, requiring an immediate “all-stop.” Observers will continue to monitor the animal after it has left the injury zone, if visible;

    • If any marine mammal species are encountered during activities that are not listed in Table 1 for authorized taking and are likely to be exposed to SPLs greater than or equal to 160 dB re 1 μPa (rms) for impact driving and 120 dB re 1 μPa (rms), then the Holder of this Authorization must stop pile driving activities and report observations to NMFS' Office of Protected Resources;

    • If waters exceed a sea-state which restricts the observers' ability to make observations within the marine mammal shutdown zone (e.g., excessive wind or fog), pile installation will cease. Pile driving will not be initiated until the entire shutdown zone is visible;

    • Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted; and

    • Pile driving in September or May will end by approximately 5:00 p.m. local time to avoid the late afternoon period when most fishing charters return to the public dock adjacent to the Ferry Terminal. This is also the time of day when most sea lions are attracted to the Ferry Terminal, due to fish processing activities; therefore, shutting down construction operations at this time will help to avoid take of sea lions.

    Data Collection

    Observers are required to use approved data forms. Among other pieces of information, ADOT&PF will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the ADOT&PF will attempt to distinguish between the number of individual animals taken and the number of incidents of take. At a minimum, the following information will be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, sex and age class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Reporting

    ADOT&PF will notify NMFS prior to the initiation of the pile driving activities and will provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days of submission of the draft final report, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    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].”

    All anticipated takes would be by Level B harassment resulting from vibratory and impact pile driving and involving temporary changes in behavior. The proposed mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by Level A harassment, serious injury, or mortality is considered discountable. However, it is unlikely that injurious or lethal takes would occur even in the absence of the planned mitigation and monitoring measures.

    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.

    ADOT&PF has requested authorization for the incidental taking of small numbers of marine mammals near the Gustavus Ferry Terminal that may result from impact pile driving, vibratory pile driving and vibratory pile removal. In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take.

    Sound Thresholds

    We use the generic sound exposure thresholds shown in Table 4 to determine when an activity that produces underwater sound might result in impacts to a marine mammal such that a take by harassment might occur.

    Table 4—Underwater Injury and Disturbance Threshold Decibel Levels for Marine Mammals Criterion Criterion definition Threshold * Level A harassment PTS (injury) conservatively based on TTS ** 190 dB rms for pinnipeds.
  • 180 dB rms for cetaceans.
  • Level B harassment Behavioral disruption for impulse noise (e.g., impact pile driving) 160 dB rms. Level B harassment Behavioral disruption for non-pulse noise (e.g., vibratory pile driving, drilling) 120 dB rms. * All decibel levels referenced to 1 μPa. Note all thresholds are based off root mean square (rms) levels. ** PTS=Permanent Threshold Shift; TTS=Temporary Threshold Shift.
    Distance to Sound Thresholds

    The sound field in the project area is the existing ambient noise plus additional construction noise from the proposed project. The primary components of the project expected to affect marine mammals are the sounds generated by impact pile driving, vibratory pile driving, and vibratory pile removal.

    In order to calculate the Level A and Level B sound thresholds, ADOT&PF used acoustic monitoring data for this project that had been collected at the Kake Ferry Terminal, located approximately 115 miles south of the project area (MacGillvray et al., 2015; Appendix A). ADOT&PF provided a comprehensive analysis describing how the Kake Ferry Terminal data provides a more accurate representation of underwater noise than the California-based dataset that NMFS usually recommends.

    The Gustavus Ferry Terminal improvement project proposes to use 24- and 30-inch-diameter steel piles for most project support components. According to data collected from the Kake Ferry Terminal (MacGillvray et al., 2015; Appendix A) and WSDOT (Laughlin 2010; WSDOT 2014), piles of this size generate similar levels of waterborne noise. The sound levels selected to calculate impact zones are as follows:

    • Waterborne noise: 193.2 dB rms for impact driving and 154.3 dB rms for vibratory driving

    The formula below is used to calculate underwater sound propagation. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

    TL = B * log 10 (R 1/R 2) Where: TL = transmission loss in dB B = wave mode coefficient; for practical spreading equals 15 R 1 = the distance of the modeled SPL from the driven pile, and R 2 = the distance from the driven pile of the initial measurement.

    NMFS typically recommends a default practical spreading loss of 15 dB per tenfold increase in distance. ADOT&PF analyzed the available underwater acoustic data utilizing the practical spreading loss model.

    The practical spreading loss model estimates small injury zones for whales (76 m) and pinnipeds (16 m) for pulsed sound generated by piles driven by an impact pile driver within the project area. The disturbance zone for impact pile driving is larger, at approximately 1.6 km from the driven pile for all marine mammals. The disturbance zone for continuous noise generated by a vibratory hammer is similar, predicted to extend for 1.9 km from the pile to an ambient background level of 120 dB. For airborne sound, the Level B disturbance threshold is calculated at 163 m for harbor seals and 51 m for other pinnipeds during impact driving and 36 m for harbor seals during vibratory driving. The selected sound level of 97 dB for vibratory driving is below the 100 dB disturbance threshold for other pinnipeds, so there is no disturbance zone for other pinniped species.

    Table 5—Impact Zones of Marine Mammals Pile driver type Distance to criterion (meters) Waterborne noise Marine mammal disturbance
  • (160 dB)/Level B
  • Cetacean injury
  • (180 dB)/Level A
  • Pinniped injury
  • (190 dB)/Level A
  • Continuous noise disturbance
  • (120 dB)/Level B
  • Impact 1,634 76 16 Vibratory 1,935

    Note that the actual area ensonified by pile driving activities is significantly constrained by local topography relative to the total threshold radius. The actual ensonified area was determined using a straight line-of-sight projection from the anticipated pile driving locations. Distances to the underwater sound isopleths for Level B and Level A are illustrated respectively in Figure 2 and Figure 3 in the Application.

    The method used for calculating potential exposures to impact and vibratory pile driving noise for each threshold uses local marine mammal data sets and data from IHA estimates on similar projects with similar actions. All estimates are conservative and include the following assumptions:

    • All pilings installed at each site would have an underwater noise disturbance equal to the piling that causes the greatest noise disturbance (i.e., the piling furthest from shore) installed with the method that has the largest ZOI. The largest underwater disturbance ZOI would be produced by vibratory driving steel and timber piles. The ZOIs for each threshold are not spherical and are truncated by land masses on either side of the channel which would dissipate sound pressure waves; and

    • Exposures were based on estimated work days. Between 16 and 50 work days of pile driving and removal will be required for the proposed project. NMFS will assume that a full 50 days are required to complete pile driving and removal activities.

    The calculation for marine mammal exposures, except for Dall's porpoise and killer whales, was estimated using the following:

    Exposure estimate = N (number of animals exposed above disturbance threshold) × no. of days of pile driving/removal activity.

    The methods for the calculation of exposures for Dall's porpoise and killer whales is described under those respective species below.

    Harbor Seal

    There are no documented haulout sites for harbor seals in the vicinity of the project. The nearest haulouts, rookeries, and pupping grounds occur in Glacier Bay over 20 miles from the ferry terminal. However, occasionally an individual will haul out on rocks on the north side of Pleasant Island (Stephen Vanderhoff, SWE, personal communication). A recent study of post-breeding harbor seal migrations from Glacier Bay demonstrates that some harbor seals traveled extensively beyond the boundaries of Glacier Bay during the post-breeding season (Womble and Gende 2013). Strong fidelity of individuals for haulout sites during the breeding season was documented in this study as well.

    Harbor seals have declined dramatically in Glacier Bay region over the past few decades which may be a reason why there are few observations at the Gustavus Ferry Terminal. Sightings of harbor seals around the ferry terminal used to be more common (Stephen Vanderhoff, SWE, personal communication). NPS has documented one harbor seal observation near the terminal. It is estimated that less than 10 individuals are seen near the ferry dock during charter boat operations from mid- to late-May through September (Tod Sebens, CSE, Stephen Vanderhoff, SWE, Bruce Kruger, ADF&G, personal communication). Harbor seals are also documented in Icy Passage in the winter and early spring (Womble and Gende 2013).

    For this analysis, we take a conservative estimate and assume that four harbor seals could be present on any day of pile driving regardless of when the pile driving is conducted (Spring and Fall 2017). Two seals would be subject would be exposed to underwater noise. Therefore, it is estimated that the following number of harbor seals may be present in the disturbance zone:

    Underwater exposure estimate: 4 animals × 50 days of pile activity = 200.

    NMFS proposes authorization for 200 Level B acoustical harassment takes of harbor seals. It is likely that one or more animals will be taken on repeated or subsequent days. Therefore, the number of individual animals taken will likely be less than 200.

    Steller Sea lion

    There are numerous Steller sea lion haulouts in Icy Strait but none occurring in Icy Passage (Mathews et al., 2011; Tod Sebens, CSE, Stephen Vanderhoff, SWE, Janet Neilson, NPS, personal communication). The nearest Steller sea lion haulout sites are located on Black Rock on the south side of Pleasant Island and Point Carolus west across the strait from Point Gustavus (Mathews et al., 2011). Both haulouts are over 16 km from the Gustavus ferry terminal.

    Steller sea lions are common in the ferry terminal area during the charter fishing season (May to September) and are known to haul out on the public dock (Tod Sebens, CSE, Stephen Vanderhoff, SWE, Janet Neilson, NPS, personal communication Bruce Kruger, ADF&G, personal communication). During the charter fishing season, Steller sea lions begin arriving at the ferry terminal as early as 2:00 p.m. local time, reaching maximum abundance when the charter boats return at approximately 5:00 p.m. local time. The sea lions forage on the carcasses of the sport fish catch and then vacate the area. For the sake of our analysis we propose at least 10 animals will be present every day during charter fishing season. Outside of the charter fishing season, it is assumed that two Steller sea lions may transit in front of the ferry terminal to and from foraging grounds.

    For the purpose of our analysis we conservatively estimate that two Steller sea lions will transit within the disturbance zones each day during the months of October and November of 2017 as well as March and April of 2018. We estimate, conservatively, that up to 10 individuals may be present each day in the months of September 2017 and May 2018 during the charter fishing season.

    We also assume that 33 total combined days of pile driving/removal will occur in October and November, 2017 as well as in March and April, 2018. Seventeen combined driving days will occur in September, 2017 and May, 2018. Using these estimates we calculate the following number of Steller sea lions may be present in the disturbance zone:

    • October 2017, November 2017, March 2018 and April 2018 underwater exposure estimate: 2 animals × 33 days of pile activity = 66 • September 2017 and May 2018 underwater exposure estimate: 10 animals × 17 days of pile activity = 170

    The underwater take estimate for March through November is 236 animals. NMFS proposes authorization for 236 Level B acoustical harassment takes of Steller sea lions. Note that a small number of Steller sea lions (up to five) may have become habituated to human activity and, therefore, it is highly likely that there will be numerous repeated takes of these same animals. (Kruger, ADF&G, personal communication).

    Dall's Porpoise

    Dall's porpoise are documented in Icy Strait but not Icy Passage. Dahlheim et al., (2009) found Dall's porpoise throughout Southeast Alaska, with concentrations of animals consistently found in Icy Strait, Lynn Canal, Stephens Passage, upper Chatham Strait, Frederick Sound, and Clarence Strait. It is estimated that there are anywhere from four to 12 sightings of Dall's porpoise in Icy Strait per season during the May through September whale watching charter months (Tod Sebens, CSE, Stephen Vanderhoff, SWE, personal communication). NPS documented seven sightings in Icy Strait since 1993 in September, October, November, April, and May. Six of the seven sightings are of pods with less than 10 individuals. The mean group size of Dall's porpoise in Southeast Alaska is estimated at three individuals (Dahlheim et al., 2009).

    Based on observations of local marine mammal specialists, Dall's porpoise are uncommon in Icy Passage. However, they do occur in Icy Strait and could potentially transit through the disturbance zone. For this analysis, we take the maximum number of 12 sightings per season between May and September, which equates to 2.4 sightings per month. Using this number it is estimated that the following number of Dall's porpoise may be present in the disturbance zone:

    • Underwater exposure estimate: 2.4 group sightings/month × 3 animals/group × 6 months of pile activity = 43.2 NMFS proposes authorizing the Level B take of 43 Dall's porpoise. Harbor Porpoise

    Harbor porpoise are common in Icy Strait. Concentrations of harbor porpoise were consistently found in varying habitats surrounding Zarembo Island and Wrangell Island, and throughout the Glacier Bay and Icy Strait regions (Dahlheim et al., 2009). These concentrations persisted throughout the three seasons sampled. Dahlheim (2015) indicated that 332 resident harbor porpoises occur in the Icy Strait area, though the population has been declining across Southeast Alaska since the early 1990's (Dahlheim et al., 2012). During a 2014 survey, Barlow et al. (in press) observed 462 harbor porpoises in the Glacier Bay and Icy Strait area during a three-month summer survey period. It is estimated that harbor porpoise are observed on at least 75 percent of whale watch excursions (75 of 100 days) during the May through September months (Tod Sebens, CSE, Stephen Vanderhoff, SWE, personal communication). While NPS documented numerous sightings in Icy Strait since 1993 in September, October, November, April, and May, none were observed in Icy Passage. The mean group size of harbor porpoise in Southeast Alaska is estimated at two individuals (Dahlheim et al., 2009).

    Harbor porpoise could potentially transit through the disturbance zone during pile driving activity. For this analysis we take a conservative estimate and assume that four harbor porpoise (two pods of two per day) could be present on any of the 50 days of pile driving. Using this number it is estimated that the following number of harbor porpoise may be present in the disturbance zone:

    Underwater exposure estimate:

    • 4 animals × 50 days of pile activity = 200

    NMFS is proposing authorization for 200 Level B acoustical harassment takes of harbor porpoise.

    Humpback Whale

    From May to September, humpback whales congregate and forage in nearby Glacier Bay and in Icy Strait. Since 1985, the NPS has been monitoring humpback whales in both Glacier Bay National Park and Icy Strait and publishing annual reports (http://www.nps.gov/glba/naturescience/whale_acoustic_reports.htm). The NPS typically surveys Icy Strait, located south of Icy Passage, once a week between June 1 and August 31, with most survey effort focused in the area east of Point Gustavus and Pleasant Island (Figure 3). Several Icy Strait surveys included waters around Pleasant Island, the closest island to the Gustavus Ferry Terminal. Because the NPS is most interested in whales within Glacier Bay and areas where vessel management is a concern, their monitoring data do not represent a true distribution of whales. Their survey locations are also dependent on where the whales are actually distributed (Neilson et al., 2014).

    In 2013, 237 humpback whales were documented in Icy Strait during the NPS monitoring period; this was a 14 percent increase over the previous high count of 177 whales in 2012 (Neilson et al., 2014). In 2014, a 39 percent decrease in area abundance was observed (124 whales), which may have been caused by increased turbidity resulting from seismic generated marine landslides (Neilson et al., 2015). The majority of whales observed in Icy Strait in 2013 and 2014 were recorded in the area between the mouth of Glacier Bay and Point Adolphus; there were no whales observed between Pleasant Island and the Gustavus Ferry Terminal (the waterbody known as Icy Passage). While this does not mean that no whales were present between the island and ferry terminal at any time, it does suggest that the number of individual whales present in Icy Passage is relatively low and occurrence is infrequent. In other years, a number of humpback whales have been observed to the south and west of Pleasant Island (Neilson et al., 2014; Figures 4 through 6). The lack of whale observations between Pleasant Island and the ferry terminal likely reflects the fact that Icy Passage is relatively shallow and muddy; for this reason NPS does not consider it a whale “hot spot” (C. Gabriele, NPS, personal communication).

    Based on these observations humpback whales appear to be common in Icy Strait and are occasionally seen in Icy Passage. However, NPS believes that whale abundance decreases substantially in September through November and March through April, but has limited data for these periods. For this analysis, we take a conservative estimate and assume that two humpback whales could be present in the disturbance zone on any day of the 50 days of pile driving. Using this number it is estimated that the following number of humpback whales may be present in the disturbance zone:

    Underwater exposure estimate:

    • 2 animals × 50 days of pile activity = 100 NMFS is proposing authorization for 100 Level B acoustical harassment takes of humpback whales. Killer whale

    Based on observations of local marine mammal specialists, the probability of killer whales occurring in Icy Passage is low. However, they do occur in Icy Strait and could potentially transit through the disturbance zone in Icy Passage. Since there is no density information available for killer whales in this area, we assumed a pod size of 27 for resident and six for transient killer whales, based on an average of group sizes observed during surveys in Spring and Fall in Southeast Alaska between 1991 and 2007 (Dalheim et al., 2008). We also assumed that a pod of resident (27) or transient (6) killer whales may occur in the Level B disturbance zone twice during the course of the project. Therefore, to account for the potential for two resident (54 total) and two transient pods (12 total) to occur in the disturbance zone during the course of the project, ADOT&PF is requesting authorization for 66 Level B acoustical harassment takes of killer whales.

    Minke Whale

    Based on observations of local marine mammal specialists, the probability of minke whales occurring in Icy Passage is low. However, they have been documented in Icy Strait and could potentially transit through the disturbance zone. For this analysis, we take a conservative estimate and assume that one minke whale could be present on any one day during the 50 days of pile driving. Using this number it is estimated that the following number of minke whales may be present in the disturbance zone:

    Underwater exposure estimate:

    • 1 animal × 50 days of pile activity = 50

    NMFS is therefore proposing authorization for 50 Level B acoustical harassment takes of minke whales.

    Analyses and Preliminary Determinations Negligible Impact Analysis

    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). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment 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.

    To avoid repetition, the discussion of our analyses applies to all the species listed in Table 1. There is little information about the nature of severity of the impacts or the size, status, or structure of any species or stock that would lead to a different analysis for this activity.

    Pile driving and pile extraction activities associated with the Gustavus Ferry Terminal improvements project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in Level B harassment (behavioral disturbance) for all species authorized for take, from underwater sound generated from pile driving and removal. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving or drilling is under way.

    The takes from Level B harassment will be due to potential behavioral disturbance and potential TTS. Serious injury or death is unlikely for all authorized species and injury is unlikely for these species, as ADOT&PF will enact several required mitigation measures. Soft start techniques will be employed during pile driving operations to allow marine mammals to vacate the area prior to commencement of full power driving. ADOT&PF will establish and monitor shutdown zones for authorized species, which will prevent injury to these species. ADOT&PF will also record all occurrences of marine mammals and any behavior or behavioral reactions observed, any observed incidents of behavioral harassment, and any required shutdowns, and will submit a report upon completion of the project. We have determined that the required mitigation measures are sufficient to reduce the effects of the specified activities to the level of effecting the least practicable adverse impact upon the affected species, as required by the MMPA.

    The ADOT&PF's proposed activities are localized and of short duration. The entire project area is limited to the Gustavus Ferry Terminal area and its immediate surroundings. Specifically, the use of impact driving will be limited to an estimated maximum of 57 hours over the course of 16 to 50 days of construction. Total vibratory pile driving time is estimated at 114 hours over the same period. While impact driving does have the potential to cause injury to marine mammals, mitigation in the form of shutdown zones should eliminate exposure to Level A thresholds. Vibratory driving does not have significant potential to cause injury to marine mammals due to the relatively low source levels produced and the lack of potentially injurious source characteristics. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be within the ensonified area during the construction time frame.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. In response to vibratory driving, pinnipeds (which may become somewhat habituated to human activity in industrial or urban waterways) have been observed to orient towards and sometimes move towards the sound. The pile extraction and driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations, which have taken place with no reported serious injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stock as a whole.

    In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of serious injury or mortality to authorized species may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior and; (3) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of effecting the least practicable adverse impact upon the affected species. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned monitoring and mitigation measures, NMFS finds that the total marine mammal take from ADOT&PF's Gustavus Ferry terminal improvement project will have a negligible impact on the affected marine mammal species or stocks.

    Table 6—Estimated Number of Exposures and Percentage of Stocks That May Be Subject to Level B Harassment Species Proposed
  • authorized takes
  • Stock(s) abundance estimate Percentage of total stock
    Harbor Seal 200 7,210 2.8. Steller Sea Lion 236 49,497 (western stock in AK)
  • 60,131 (eastern stock)
  • 0.48.
  • 0.39.
  • Dall's Porpoise 43 Unknown Unknown. Harbor Porpoise 200 11,146 1.7. Humpback Whale 100 10,252 0.98. Killer whale 66 261 (Northern resident) 25.3. 587 (Gulf of Alaska transient) 11.2. 243 (West Coast transient) 27.1. Minke Whale 50 Unknown Unknown.
    Small Numbers Analysis

    Table 6 demonstrates the number of animals that could be exposed to received noise levels that could cause Level B behavioral harassment for the proposed work at the Gustavus Ferry Terminal project. The analyses provided above represents between 0.39-27.1 percent of the populations of these stocks that could be affected by harassment, except for Minke whales and Dall's porpoise, since their population numbers are unknown. While the proposed West Coast transient and Northern resident killer whale takes and percentages of stock affected appears high (27.1 percent and 25.3 percent), in reality only 66 transient killer whale individuals are not likely to be harassed. Instead, it is more likely that there will be multiple takes of a smaller number of individuals. Both the West coast transient stock and the Northern Resident stock range from southeastern Alaska, through British Columbia, and into northern Washington. It is unlikely that such a large portion of either stock with ranges of this size would be concentrated in and around Icy Passage.

    Furthermore, though there is not a current abundance estimate, the proposed take of 43 Dall's porpoise and 50 Minke whale are also considered small numbers. Population data on these species is dated. Surveys conducted between 1987 and 1991 put the population of the Alaska stock of Dall's porpoise at between 83,400 and 417,000 (Allen and Angliss, 2012). As such, the 14 proposed authorized takes represent <0.01 percent of the population. A visual survey for cetaceans was conducted in the central-eastern Bering Sea in July-August 1999, and in the southeastern Bering Sea in 2000. Results of the surveys in 1999 and 2000 provide provisional abundance estimates of 810 and 1,003 minke whales in the central-eastern and southeastern Bering Sea, respectively (Moore et al., 2002). Additionally, line-transect surveys were conducted in shelf and nearshore waters in 2001-2003 from the Kenai Fjords in the Gulf of Alaska to the central Aleutian Islands. Minke whale abundance was estimated to be 1,233 for this area (Zerbini et al., 2006). However, these estimates cannot be used as an estimate of the entire Alaska stock of minke whales because only a portion of the stock's range was surveyed. (Allen and Anglis 2012). Clearly, 50 authorized takes should be considered a small number, as it constitutes only 6.1 percent of the smallest abundance estimate generated during the surveys just described and each of these surveys represented only a portion of the minke whale range.

    Note that the numbers of animals authorized to be taken for all species, with the exception of resident killer whales, would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the number of marine mammals potentially affected by the proposed action, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Use

    The proposed Gustavus Ferry Terminal Improvements project will occur near but not overlap the subsistence area used by the villages of Hoonah and Angoon (Wolfe et al., 2013). Harbor seals and Steller sea lions are available for subsistence harvest in this area (Wolfe et al., 2013). There are no harvest quotas for other non-listed marine mammals found there. The Alaska Department of Fish and Game (Wolfe et al., 2013) has regularly conducted surveys of harbor seal and Steller sea lion subsistence harvest in Alaska. Since proposed work at the Gustavus Ferry Terminal will only cause temporary, nonlethal disturbance of marine mammals, we anticipate no impacts to subsistence harvest of marine mammals in the region.

    Endangered Species Act (ESA)

    There are two marine mammal species that are listed as endangered under the ESA with confirmed or possible occurrence in the study area: humpback whale and Steller sea lion (Western DPS). NMFS' Permits and Conservation Division has initiated consultation with NMFS' Protected Resources Division under section 7 of the ESA on the issuance of an IHA to ADOT&PF under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.

    National Environmental Policy Act (NEPA)

    NMFS is preparing an EA in accordance with the NEPA and will consider comments submitted in response to this notice as part of that process. The draft EA will be posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm once it is finalized.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to ADOT&PF for reconstructing the existing Gustavus Ferry Terminal located in Gustavus, Alaska, Alaska, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    1. This Incidental Harassment Authorization (IHA) is valid from September 1, 2017 through August 31, 2018.

    2. This Authorization is valid only for in-water construction work associated with the reconstruction of the existing Gustavus Ferry Terminal located in Gustavus, Alaska.

    3. General Conditions.

    (a) A copy of this IHA must be in the possession of the Alaska Department of Transportation & Public Facilities (ADOT&PF), its designees, and work crew personnel operating under the authority of this IHA.

    (b) The species authorized for taking are harbor seal (Phoca vitulina), Steller sea lion (Eumatopius jubatus), Dall's porpoise (Phocoenoides dalli), harbor porpoise (Phocoena phocoena), humpback whale (Megaptera novaeangliae), killer whale (Orcinus orca), and minke whale (Balaenoptera acutorostrata).

    (c) The taking, by Level B harassment only, is limited to the species listed in condition 3(b).

    (d) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    4. Mitigation Measures.

    The holder of this Authorization is required to implement the following mitigation measures:

    (a) Time Restriction: For all in-water pile driving activities, ADOT&PF shall operate only during daylight hours when visual monitoring of marine mammals can be conducted;

    (b) To limit the amount of waterborne noise, a vibratory hammer will be used for initial driving, followed by an impact hammer to proof the pile to required load-bearing capacity;

    (c) Establishment of Level B Harassment Zones of Influence (ZOIs):

    (i) Before the commencement of in-water pile driving activities, ADOT&PF shall establish Level B behavioral harassment ZOIs where received underwater sound pressure levels (SPLs) are higher than 160 dB (rms) and 120 dB (rms) re 1 µPa for impulse noise sources (impact pile driving) and non-pulse sources (vibratory hammer), respectively; and

    (ii) The ZOIs delineate where Level B harassment would occur. For impact driving, the area within the Level B harassment threshold is between approximately 76 m and 1.6 km. For vibratory driving, the level B harassment area is between 10 m and 1.9 km.

    (d) Establishment of shutdown zone—Implement a minimum shutdown zone around the pile of 76 m radius during impact pile driving and 10 m during vibratory driving activities. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.

    (e) Use of Soft-start:

    (i) The project will utilize soft start techniques for impact pile driving. Contractors shall be required to provide an initial set of three strikes from the impact hammer at 40 percent reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of thirty minutes or longer (specific to either vibratory or impact driving); and

    (ii) Whenever there has been downtime of 20 minutes or more without vibratory or impact driving, the contractor will initiate the driving with soft-start procedures described above.

    (f) Standard mitigation measures:

    (i)(e) ADOT&PF shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, and staff prior to the start of all in-water pile driving, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures; and

    (ii) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.

    5. Monitoring and Reporting.

    The holder of this Authorization is required to report all monitoring conducted under the IHA within 90 calendar days of the completion of the marine mammal monitoring. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days of submission of the draft final report, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments:

    (a) Marine Mammal Observers (MMOs) must have the following qualifications:

    (i) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of spotting scopes and binoculars may be necessary to correctly identify the target;

    (ii) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    (iii) Experience or training in the field identification of marine mammals (cetaceans and pinnipeds);

    (iv) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    (v) Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; dates and times when marine mammals were present at or within the defined disturbance or injury zones; dates and times when in-water construction activities were suspended to avoid injury from construction noise; etc; and

    (vi) Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    (b) Visual Marine Mammal Monitoring and Observation:

    (i) During impact pile driving, one MMO shall monitor the 1.6-kilometer disturbance zone from the Gustavus Ferry Terminal. The smaller injury zone of 76 meters for whales and 16 meters for pinnipeds will also be monitored by a MMO during impact pile driving. During vibratory driving, one MMO shall monitor the 1.9 km disturbance zone from the Gustavus Ferry Terminal;

    (ii) At the beginning of each day, the observer shall determine their vantage positions using a handheld GPS unit. If a MMO changes position throughout the day, each new position will also be determined using a hand-held GPS unit;

    (iii) Monitoring shall begin 30 minutes prior to impact pile driving;

    (iv) If all marine mammals in the disturbance zone have been documented and no marine mammals are in the injury zone, the coordinator shall instruct the contractor to initiate the soft-start procedure for any impact pile driving;

    (v) When a marine mammal is observed, its location shall be determined using a rangefinder to verify distance and a GPS or compass to verify heading;

    (vi) If marine mammals listed in 3(b) are observed nearing their respective injury zones, pile-driving activities shall be immediately shut down. Operations shall continue after the animal has been spotted out of the zone or 30 minutes have passed without re-sighting the animal in the zones;

    (vii) The MMO shall record all cetaceans and pinnipeds present in the disturbance zones;

    (ix) The observer will use their naked eye with the aid of binoculars and a spotting scope to search continuously for marine mammals;

    (x) During the in-water operation of heavy machinery (e.g., barge movements), a 10-meter shutdown zone for all marine mammals will be implemented;

    (xi) At the end of the pile-driving day, post-construction monitoring will be conducted for 30 minutes beyond the cessation of pile driving; and

    (xii) If waters exceed a sea-state which restricts the MMO's ability to make observations within the marine mammal shutdown zone (e.g. excessive wind or fog), pile installation will cease. Pile driving will not be initiated until the entire shutdown zone is visible.

    (c) During pile driving, one MMO shall be positioned at the best practical vantage point. The monitoring position will be on the ferry terminal, but may vary based on pile driving activities and the locations of the piles and driving equipment. The monitoring location will be identified with the following characteristics:

    (i) Unobstructed view of pile being driven;

    (ii) Unobstructed view of all water within a 1.6 km (impact driving) or 1.9 km (vibratory driving) radius of each pile;

    (iii) Clear view of pile-driving operator or construction foreman in the event of radio failure; and

    (iv) Safe distance from pile-driving activities in the construction area.

    (d) When possible, ADOT&PF shall augment land-based monitoring with information from boats in Icy Strait/Passage by coordinating with the NPS and whale-watching charters. The MMO shall conduct telephone checks with NPS and whale-watching charters to monitor the locations of humpback whales and Steller sea lions within Icy Strait/Passage.

    (e) Data Collection:

    Observers are required to use approved data forms. Among other pieces of information, ADOT&PF will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, ADOT&PF will attempt to distinguish between the number of individual animals taken and the number of incidents of take. At a minimum, the following information shall be recorded on the sighting forms:

    1. Date and time that monitored activity begins or ends;

    2. Construction activities occurring during each observation period;

    3. Weather parameters (e.g., percent cover, visibility);

    4. Water conditions (e.g., sea state, tide state);

    5. Species, numbers, and, if possible, sex and age class of marine mammals;

    6. Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    7. Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    8. Locations of all marine mammal observations; and

    9. Other human activity in the area.

    (f) Reporting Measures:

    (i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), ADOT&PF would immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinators. The report would include the following information:

    1. Time, date, and location (latitude/longitude) of the incident;

    2. Name and type of vessel involved;

    3. Vessel's speed during and leading up to the incident;

    4. Description of the incident;

    5. Status of all sound source use in the 24 hours preceding the incident;

    6. Water depth;

    7. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    8. Description of all marine mammal observations in the 24 hours preceding the incident;

    9. Species identification or description of the animal(s) involved;

    10. Fate of the animal(s); and

    11. Photographs or video footage of the animal(s) (if equipment is available);

    (ii) Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with ADOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF would not be able to resume their activities until notified by NMFS via letter, email, or telephone;

    (iii) In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead MMO 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 described in the next paragraph), ADOT&PF would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with ADOT&PF to determine whether modifications in the activities are appropriate;

    (iv) In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), ADOT&PF would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators, within 24 hours of the discovery. ADOT&PF would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network.

    6. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for ADOT&PF's reconstruction of the existing Gustavus Ferry Terminal located in Gustavus, Alaska. Please include with your comments any supporting data or literature citations to help inform our final decision on ADOT&PF's request for an MMPA authorization.

    Dated: June 20, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-14886 Filed 6-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD283 Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Marine Mammal Protection Act (MMPA), we, NMFS, hereby issue a permit for a period of three years to authorize the incidental, but not intentional, taking of individuals from three marine mammal stocks listed under the Endangered Species Act (ESA) by the Bering Sea and Aleutian Islands (BSAI) pollock trawl and BSAI flatfish trawl fisheries: The Western North Pacific (WNP) stock of humpback whales (Megaptera novaeangliae); Central North Pacific (CNP) stock of humpback whales; and Western U.S. stock of Steller sea lions (Eumetopias jubatus).

    DATES:

    This permit is effective for a three-year period beginning June 23, 2016.

    ADDRESSES:

    Reference materials for this permit, including the negligible impact determination (NID), are available on the Internet at http://www.regulations.gov, identified by Docket Number NOAA-NMFS-2014-0057. Recovery plans for humpback whales and Steller sea lions are available on the Internet at http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals. Copies of the reference materials are also available upon request from the NMFS Office of Protected Resources, 1315 East-West Highway, 13th Floor, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Jon Kurland, NMFS Alaska Region, 907-586-7638, [email protected]; or Shannon Bettridge, NMFS Office of Protected Resources, 301-427-8402, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Pursuant to section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1361 et seq., NMFS shall for a period of up to three consecutive years, allow the incidental, but not the intentional, taking of marine mammal species listed under the ESA, 16 U.S.C. 1531 et seq., by persons using vessels of the United States and those vessels which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1824(b), while engaging in commercial fishing operations, if we make certain determinations. We must determine, after notice and opportunity for public comment, that: (1) Incidental mortality and serious injury will have a negligible impact on the affected species or stocks; (2) a recovery plan has been developed or is being developed for the species or stocks under the ESA; and (3) where required under section 118 of the MMPA, a monitoring program has been established for the fisheries, vessels engaged in the fisheries are registered, and a take reduction plan (TRP) has been developed or is being developed for the species or stocks.

    We are issuing a permit under MMPA section 101(a)(5)(E) to vessels registered in the BSAI pollock trawl and BSAI flatfish trawl fisheries to incidentally take individuals from the WNP and CNP stocks of humpback whales and the Western U.S. stock of Steller sea lions. Humpback whales and the western Distinct Population Segment of Steller sea lions are listed as endangered under the ESA. We have determined that incidental taking from these fisheries will have a negligible impact on these stocks, as documented in our NID (see ADDRESSES). We have also determined that recovery plans have been completed for humpback whales and Steller sea lions, and in accordance with MMPA section 118, a monitoring program is established for the fisheries and vessels are registered. Finally, we have determined that these fisheries and stocks meet the MMPA trigger for development of a TRP, but they are lower priorities compared to other marine mammal stocks and fisheries based on the levels of incidental mortality and serious injury (M/SI) and population levels and trends. Accordingly, development of TRPs for these three stocks in these two fisheries will be deferred under section 118, since other stocks/fisheries are higher priorities for any available funding for establishing new Take Reduction Teams. The basis for these determinations is further described below.

    We recognize that a proposed change to the ESA listing for humpback whales (80 FR 22303 April 21, 2015), if finalized, might affect the need for an MMPA 101(a)(5)(E) permit for these fisheries to incidentally take humpback whales. However, we are including humpback whales in this permit because the species is currently listed as endangered.

    Our proposed permit and draft NID addressed two other marine mammals (the Alaska stocks of bearded and ringed seals) and one other fishery (the BSAI Pacific cod longline fishery) (80 FR 78711, December 17, 2015). On July 25, 2014, the U.S. District Court for the District of Alaska issued a memorandum decision in a lawsuit challenging the listing of bearded seals under the ESA (Alaska Oil and Gas Association v. Pritzker, Case No.4:13-cv-00018-RPB). The decision vacated our listing of the Beringia DPS of bearded seals as a threatened species. On March 11, 2016, the U.S. District Court for the District of Alaska issued a memorandum decision in a lawsuit challenging the listing of ringed seals under the ESA (Alaska Oil and Gas Association v. Pritzker, Case No.4:14-cv-00029-RRB). The decision vacated our listing of the Arctic subspecies of ringed seals as a threatened species. We are currently appealing these decisions. In the interim, our NID continues to evaluate the impacts of fisheries on the Alaska stocks of bearded and ringed seals under MMPA 101(a)(5)(E), but because the ESA listings for these two species are not currently in effect, we are not including them in this permit and they are not further discussed in this Notice. The BSAI Pacific cod longline fishery has incidental take of the Alaska stock of ringed seals but no other ESA-listed species. We evaluate the impacts of this fishery on the Alaska stock of ringed seals in our NID, but we are not including the fishery in this permit.

    A description of the two permitted fisheries can be found in the NID and the Federal Register notice for the proposed permit (80 FR 78711, December 17, 2015). These federally-managed fisheries take place inside both state waters (from the coastline out to three nautical miles) and federal waters (three to two hundred nautical miles from shore). The federally-managed fisheries inside Alaska state waters are often referred to as state “parallel” fisheries and are included in this authorization. All other Category II fisheries that interact with ESA-listed marine mammal stocks observed off the coasts of Alaska are state-managed fisheries (as opposed to state parallel fisheries), and are not included in this permit. Participants in Category III fisheries are not required to obtain incidental take permits under MMPA section 101(a)(5)(E) but are required to report injuries or mortality of marine mammals incidental to their operations.

    Basis for Determining Negligible Impact

    As described above, prior to issuing the permit, we must determine if M/SI incidental to commercial fisheries will have a negligible impact on the affected marine mammal species or stocks. We satisfied this requirement through completion of a NID (see ADDRESSES).

    Although the MMPA does not define “negligible impact,” we have issued regulations providing a qualitative definition of “negligible impact” as defined in 50 CFR 216.103, and through scientific analysis, peer review, and public notice developed a quantitative approach. As it applies here, the definition of “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.” The development of the approach is outlined in detail in the NID and was described in previous notices for other permits to take threatened or endangered marine mammals incidental to commercial fishing (e.g., 72 FR 60814, October 26, 2007; 78 FR 54553, September 4, 2013).

    In 1999, we proposed criteria to determine whether M/SI incidental to commercial fisheries will have a negligible impact on a listed marine mammal stock for MMPA section 101(a)(5)(E) permits (64 FR 28800, May 27, 1999). In applying the 1999 criteria, Criterion 1 is whether total known, assumed, or extrapolated human-caused M/SI is less than 10 percent of the potential biological removal level (PBR) for the stock. If total known, assumed, or extrapolated human-caused M/SI is less than 10 percent of PBR, the analysis would be concluded, and the impact would be determined to be negligible. If Criterion 1 is not satisfied, we may use one of the other criteria as appropriate. Criterion 2 is satisfied if the total known, assumed, or extrapolated human-caused M/SI is greater than PBR, but fisheries-related M/SI is less than 10 percent of PBR. If Criterion 2 is satisfied, vessels operating in individual fisheries may be permitted if management measures are being taken to address non-fisheries-related mortality and serious injury. Criterion 3 is satisfied if total fisheries-related M/SI is greater than 10 percent of PBR and less than PBR, and the population is stable or increasing. Fisheries may then be permitted subject to individual review and certainty of data. Criterion 4 stipulates that if the population abundance of a stock is declining, the threshold level of 10 percent of PBR will continue to be used. Criterion 5 states that if total fisheries-related M/SI are greater than PBR, permits may not be issued for that species or stock.

    Negligible Impact Determinations

    The NID provides a complete analysis of the criteria for determining whether commercial fisheries off Alaska are having a negligible impact on the WNP or CNP stocks of humpback whales or the Western U.S. stock of Steller sea lions. A summary of the analysis and subsequent determination follows. The analysis is based on the 2014 marine mammal stock assessment reports (SARs), which estimate mean or minimum annual mortality for 2008-2012 from observed commercial fisheries and entanglement data from the NMFS Marine Mammal Health and Stranding Network. This is the most recent five-year period for which data were available and had been analyzed when the proposed permit and draft NID were being developed. In cases where available observer data are only available outside that time frame, as is the case for state-managed fisheries, the most recent observer data are used.

    Humpback Whale, WNP Stock

    Total fisheries-related M/SI per year (0.9, 30 percent of PBR) is greater than 10 percent of the stock's PBR but less than PBR (3.0). We expect only minor fluctuations in fisheries-related M/SI. The stock is considered to be increasing: The most recent abundance estimate represents a 6.7 percent annual rate of increase over the previous (1991-1993) estimate, though this rate is biased high to an unknown degree. Therefore, using Criterion 3 we determine that M/SI incidental to commercial fishing will have a negligible impact on the stock.

    Humpback Whale, CNP Stock

    CNP humpback whales represent a case not considered by the existing criteria, but data support a negligible impact determination. Total annual human-caused M/SI (15.89, 19.19 percent of PBR) is well below the Criterion 2 M/SI threshold (i.e., below PBR) and is expected to remain so for the foreseeable future. Total annual fisheries-related M/SI (3.95, 4.77 percent of PBR) is well below the Criterion 3 M/SI threshold (i.e, below PBR) with only minor fluctuations in fisheries-related M/SI expected, and the population is increasing (4.9-10 percent per year, depending on the study and specific area). Therefore, we determine that M/SI incidental to commercial fishing will have a negligible impact on the stock.

    Steller Sea Lion, Western U.S. Stock

    Total fisheries related M/SI per year (32.7, 11.2 percent of PBR) is greater than 10 percent of the stock's PBR, but less than PBR (292). We expect only minor fluctuations in fisheries-related M/SI. The level of total human-caused M/SI is estimated to be below PBR and is expected to remain below PBR for the foreseeable future. Survey data collected since 2000 indicate that Steller sea lion decline continues in the central and western Aleutian Islands but regional populations east of Samalga Pass have increased or are stable. Overall, the stock is increasing at an annual rate of 1.67 percent (non-pups) and 1.45 percent (pups). Therefore, using Criterion 3 we determine that M/SI incidental to commercial fishing will have a negligible impact on this stock.

    Conclusions for the Permit

    In conclusion, based on the negligible impact criteria outlined in 1999 (64 FR 28800), the 2014 Alaska SARs, and the best scientific information and data available for the time period analyzed in this permit, we have determined that for a period of up to three years, M/SI incidental to the BSAI pollock trawl and BSAI flatfish trawl fisheries will have a negligible impact on the WNP and CNP stocks of humpback whales and the Western U.S. stock of Steller sea lions.

    The impacts on the human environment of continuing and modifying the Bering Sea trawl fisheries, including the taking of threatened and endangered species of marine mammals, were analyzed in the 2004 Alaska Groundfish Fisheries Programmatic Supplemental Environmental Impact Statement (PSEIS). The 2015 Alaska Groundfish Fisheries PSEIS Supplemental Information Report reviewed new information since 2004 and concluded that a new PSEIS was not necessary because (1) management changes to the fisheries since 2004 do not constitute a substantial change in the action, and all changes are consistent with the preferred alternative evaluated in the PSEIS, (2) the current status of the resources can be considered within the range of variability analyzed in the 2004 PSEIS, and (3) although new information exists regarding the impacts of the groundfish fisheries on resources, no information indicates that a new analysis would conclude that there is now a significant impact where the 2004 PSEIS concludes that the impact was insignificant.

    Because this permit would not modify any fishery operation and the effects of the fishery operations have been evaluated fully in accordance with NEPA, no additional NEPA analysis is required for this permit. Issuing the permit would have no additional impact to the human environment or effects on threatened or endangered species beyond those analyzed in these documents.

    Recovery Plans

    Section 4(f) of the ESA requires that we develop recovery plans for ESA-listed species, unless such a plan will not promote the conservation of the species. Recovery Plans for humpback whales and Steller sea lions have been completed (see ADDRESSES).

    Vessel Registration

    MMPA section 118(c) requires that vessels participating in Category I and II fisheries register to obtain an authorization to take marine mammals incidental to fishing activities. Further, section 118(c)(5)(A) provides that registration of vessels in fisheries should, after appropriate consultations, be integrated and coordinated to the maximum extent feasible with existing fisher licenses, registrations, and related programs. MMPA registration for participants in the BSAI trawl fisheries has been integrated with the Federal groundfish limited entry permit process of the Federal Vessel Monitoring System.

    Monitoring Program

    BSAI trawl fisheries authorized under this permit are monitored by NMFS-certified observers in the North Pacific Groundfish Observer Program. Observer coverage rates range from 50-100 percent. Accordingly, as required by MMPA section 118, a monitoring program is in place for the BSAI pollock trawl and flatfish trawl fisheries.

    Take Reduction Plans

    MMPA section 118 requires the development and implementation of a TRP in cases where a strategic stock interacts with a Category I or II fishery. The stocks covered under this permit are designated as strategic stocks under the MMPA because they are listed as endangered under the ESA (MMPA section 3(19)(C)). The two fisheries covered by this permit are Category II fisheries. Therefore, the three listed stocks and two fisheries meet the MMPA's triggers for convening a take reduction team (TRT) and developing a TRP.

    The obligations to develop and implement a TRP are further subject to the availability of funding. MMPA section 118(f)(3) contains specific priorities for developing TRPs. At this time, we have insufficient funding available to simultaneously develop and implement TRPs for all strategic stocks that interact with Category I or Category II fisheries. As provided in MMPA sections 118(f)(6)(A) and (f)(7), we used the most recent SARs and List of Fisheries (LOF) as the basis to determine our priorities for establishing TRTs and developing TRPs. Through this process, we evaluated the WNP and CNP stocks of humpback whale and the Western U.S. stock of Steller sea lions as lower priorities for establishing TRTs compared to other marine mammal stocks and fisheries, based on M/SI levels incidental to those fisheries and population levels and trends. Accordingly, given these factors and our priorities, developing TRPs for these three stocks in these two fisheries will be deferred under section 118, since other stocks/fisheries are a higher priority for any available funding for establishing new TRTs.

    Current Permit

    As described above, all of the requirements to issue a permit to Federally-managed BSAI pollock trawl and BSAI flatfish trawl fisheries have been satisfied. Accordingly, we hereby issue a permit to participants in these two fisheries to incidentally take individuals from the WNP and CNP stocks of humpback whales and the Western U.S. stock of Steller sea lions. As noted under MMPA section 101(a)(5)(E)(ii), no permit is required for vessels in Category III fisheries. For incidental taking of marine mammals to be authorized in Category III fisheries, M/SI must be reported to NMFS. If we determine at a later date that incidental M/SI from commercial fishing is having more than a negligible impact on these stocks, we may use our emergency authority under MMPA section 118 to protect the stocks and may modify the permit issued herein.

    MMPA section 101(a)(5)(E) requires NMFS to publish in the Federal Register a list of fisheries that have been authorized to take threatened or endangered marine mammals. A list of such fisheries was most recently published, as required, on April 23, 2015 (80 FR 22713). With issuance of the current permit, we are not adding any fisheries to this list, but are revising the list of marine mammal species and stocks authorized in the BSAI pollock and flatfish trawl fisheries, and removing the Alaska Bering Sea sablefish pot fishery and the Alaska BSAI Pacific cod longline fishery (Table 1).

    Table 1—List of Fisheries Authorized To Take Specific Threatened and Endangered Marine Mammals Incidental to Commercial Fishing Operations Fishery Category Marine mammal stock HI deep-set (tuna target) longline I Humpback whale, CNP stock.

  • Sperm whale, Hawaii stock.
  • False killer whale, MHI IFKW stock.
  • CA thresher shark/swordfish drift gillnet fishery (>14 in mesh) I Fin whale, CA/OR/WA stock.
  • Humpback whale, CA/OR/WA stock.
  • Sperm whale, CA/OR/WA stock.
  • HI shallow-set (swordfish target) longline/set line II Humpback whale, CNP stock. AK Bering Sea/Aleutian Islands flatfish trawl II Humpback whale, WNP stock.
  • Humpback whale, CNP stock.
  • Steller sea lion, Western U.S. stock.
  • AK Bering Sea/Aleutian Island pollock trawl II Humpback whale, WNP stock.
  • Humpback whale, CNP stock.
  • Steller sea lion, Western U.S. stock.
  • WA/OR/CA sablefish pot fishery II Humpback whale, CA/OR/WA stock. Comments and Responses

    NMFS received three comment letters on the proposed permit and draft NID. The Marine Mammal Commission (Commission) supported issuing the permit while two other commenters, Center for Biological Diversity (Center) and an individual, opposed issuing the permit. Only comments pertaining to the draft NID and proposed permit are responded to in this notice.

    General Comments

    Comment 1: The Center urged NMFS to consult under ESA section 7 on issuing the permit.

    Response: This MMPA section 101(a)(5)(E) permit is not a stand-alone action and does not require separate ESA section 7 consultation. NMFS has consulted under ESA section 7 on the BSAI groundfish fishery management plans. The resulting biological opinions analyze the impact of the fishery-related mortalities on ESA-listed marine mammals including the five species analyzed in the NID. This MMPA section 101(a)(5)(E) permit authorizes take of ESA-listed marine mammals under the MMPA while the biological opinions authorize take of ESA-listed marine mammals under the ESA.

    Comment 2: The Center recommends that NMFS include state-managed fisheries under this permit. The Center feels that by not including state fisheries in the permit, NMFS is undermining conservation of marine mammals because it implies that state-managed fisheries are not subject to the same take prohibitions as federal fisheries. The Center notes that NMFS has the authority and duty to manage state-managed fisheries under MMPA section 118.

    Response: MMPA section 101(a)(5)(E) is one of the links between the MMPA and the ESA. For federally-managed fisheries, NMFS has a federal nexus to consult under ESA section 7 on the activity that may affect ESA-listed species (e.g., commercial fishing by issuing a fishery management plan or an amendment to such a plan). As noted in response to Comment 1, this MMPA permit is linked to federal management of the BSAI groundfish fisheries. The NID considered state fisheries in the analysis, including those with mortality data preceding the time frame for the analysis if those data were the best available, so that impacts of takes from the federally-managed fisheries could be understood in the context of all known fishery-related takes . However, NMFS is not authorizing incidental take of ESA-listed species in state fisheries.

    Take of ESA-listed marine mammals in state-managed fisheries is subject to the same prohibitions as federally-managed fisheries. But, without the federal nexus, ESA section 7 does not apply to state fisheries. States are responsible for applying for an incidental take permit under ESA section 10(a)(1)(B) to obtain authorization for takes of ESA-listed species that occur incidental to an otherwise authorized activity (e.g., state-managed fisheries). Unless a state obtains such a permit, any take of ESA-listed species would be unauthorized. NMFS cannot require that a state apply for such a permit; it is the state's responsibility to do so as part of managing state fisheries.

    MMPA section 118 provides the framework for addressing marine mammal interactions in commercial fisheries nationwide and includes various metrics and guidance for managing the take reduction program as a whole. First, the program authorizes incidental take of non-ESA-listed marine mammals in commercial fisheries classified as Category I or II (no authorization is required for Category III fisheries). Then, the program directs efforts to reduce M/SI incidental to commercial fisheries and provides for priority-setting when funding is limited. TRPs can and do address marine mammal M/SI in state-managed fisheries. NMFS can authorize incidental take of endangered marine mammals in state fisheries, but is not doing so through this action.

    Comment 3: The Center believes that additional mitigation measures to reduce entanglement should be included in the permit given the MMPA's requirement to develop a TRP. Therefore, the Center feels that NMFS cannot authorize these fisheries until such a plan has been developed. Further, the Center requests that NMFS convene a take reduction team to develop a TRP.

    Response: As noted in the Federal Register notice for the proposed permit (80 FR 78711, December 17, 2015), take reduction requirements are triggered when a strategic stock is killed or seriously injured in Category I or II fisheries. All the stocks addressed by this permit are designated as strategic because they are listed under the ESA (MMPA section 2(19)(C)) and not because fishery-related M/SI exceeds PBR. MMPA section 118 is explicitly designed to reduce fishery-related M/SI below PBR, so while required by the MMPA, TRPs may not be necessary for addressing threats affecting recovery of the species. In recognition of this, a 2008 review of the take reduction program by the Government Accountability Office recommended that Congress consider amending the statutory requirements for establishing a take reduction team to stipulate that not only must a marine mammal stock be strategic and interacting with a Category I or II fishery, but that the fishery with which the marine mammal stock interacts causes at least occasional incidental mortality or serious injury of that particular marine mammal stock (i.e, convening teams and developing plans for stocks where fishery-related M/SI is low is contrary to the purpose of this section). Regardless, the obligation to develop and implement TRPs is subject to the availability of funding. MMPA section 118(f)(3) contains specific priorities for developing TRPs. As stated above under Conclusions for the Permit, all stocks authorized to be incidentally taken under this permit are currently lower priorities for developing TRPs compared to other marine mammal stocks and commercial fisheries.

    Comment 4: The Center recommends that NMFS include the North Pacific stock of sperm whales in the NID analysis and, if warranted, include this stock under this permit. The commenter notes that the draft NID contains conflicting information, in that at page 19 it reports “M/SI of sperm whales only occurred in the Gulf of Alaska (GOA) sablefish longline fishery (a Category III fishery) in 2007” but Table 5 reflects one observed fishery mortality or serious injury. Further, the draft stock assessment report for sperm whales indicates four serious injuries of sperm whales incidental to the Gulf of Alaska sablefish longline fishery (two each observed in 2012 and 2013). However, NMFS did not provide extrapolated estimates of sperm whale serious injury and mortality stating they were unavailable. Additionally, the Center notes, according to NMFS, because the population size and the PBR for sperm whales are unknown, any fishery interacting with the sperm whale is precluded from qualifying as Category I or II.

    Response: The commenter refers to the M/SI of a sperm whale from 2007, which precedes the time frame analyzed for this permit (2008-2012). Table 5 refers to M/SI of Steller sea lions and not to sperm whales. We reviewed the 2014 and 2015 SARs for North Pacific sperm whales per the comment, and recognize that NMFS mistakenly omitted the 2012 serious injuries incidental to the GOA sablefish longline fishery in the 2014 SAR, which includes 2008-2012 data. The 2015 draft SAR includes the 2012 observed serious injuries and notes that the extrapolated estimate is not available. NMFS is currently analyzing these data and intends to include the resulting bycatch estimates in the 2016 draft SAR. When this information has been incorporated into the 2016 draft SAR, NMFS will then evaluate it for the next annual LOF, likely the 2017 LOF. If the GOA sablefish longline fishery is elevated to Category I or II in a future LOF, NMFS will evaluate the need for incidental take permit under MMPA section 101(a)(5)(E). This process is iterative and we will evaluate the best available data at the time we undertake our analysis to issue these permits.

    The commenter notes that stocks without minimum abundance estimates are precluded from being considered in the LOF tier analysis, thereby precluding any fisheries that kill or seriously injure those stocks from being classified as Category I or II fisheries. This is incorrect. NMFS may classify fisheries by analogy to other similar fisheries based on various factors (50 CFR 229.2). The commenter references other Category I and II fisheries that take sperm whales, including two pelagic longline fisheries and a drift gillnet fishery. These gear types are not analogous to the GOA sablefish longline fishery, which is a demersal longline fishery, in that the gear used and the fishing practices are substantially different from one another. Both fishing gear and fishing practices are typically related to the risk of entanglement. That said, NMFS will conduct a full evaluation of this stock and this fishery pursuant to the LOF.

    Humpback Whales

    Comment 5: The notice and draft NID state that the population of Western North Pacific humpback whales is estimated to be increasing at an annual rate of 6.7 percent, but the Commission believes the rate of increase is likely an overestimate because the 2004-06 study included an area not surveyed in the 1991-1993 study. Therefore, the Commission suggested NMFS consider estimating the rate of increase based only on data from sites surveyed in both 1991-93 and 2004-06 to evaluate whether that analysis indicates a clearly stable or increasing trend, which would support the draft NID.

    Response: This analysis is part of a larger ongoing analysis of the SPLASH (Structure of Populations, Levels of Abundance and Status of Humpback Whales in the North Pacific) effort. When the results are available, we will evaluate whether any of the findings in the NID would change and take appropriate action at that time.

    Comment 6: The Commission is concerned that the WNP population of humpback whales may consist of two distinct population segments (DPS) under the recent proposed ESA listing rule (80 FR 22304, April 21, 2015) whose feeding range overlaps that of the CNP population of humpbacks. If that is the case, population trends for the two putative western North Pacific DPSs may not be the same and the BSAI groundfish fisheries could have a negligible impact on one stock, but more than a negligible impact on the other. Thus, the Commission encourages NMFS to collect and analyze additional information on the discreteness of the two putative Western North Pacific DPSs identified by the humpback whale Biological Review Team.

    Response: For the NID, we analyzed the stocks as currently defined in the SARs. The ESA listing rule has not been finalized. NMFS uses the best available data at the time of the analysis and generally does not collect new data for the purposes of issuing an MMPA section 101(a)(5)(E) permit.

    Comment 7: The Commission recommended that NMFS consult with researchers to gather data and develop new abundance estimates for the Western North Pacific stock of humpback whales before issuing a subsequent permit.

    Response: NMFS agrees that additional, new data would be useful and will continue to collaborate with those researchers collecting data on the Western North Pacific stock of humpback whales.

    Comment 8: The Commission encouraged NMFS to instruct fishery observers to collect tissue samples or photographs of all humpback whales take incidental to fisheries to appropriately identify the stock.

    Response: Fishery observers are already instructed to take photographs and collect tissue samples when possible. In some cases, as examples, the interaction occurs too quickly or too far from the vessel and photographs/tissue samples may not be possible. Regardless, it has been our practice to assign a take to both stocks so that we can evaluate the impact of that mortality on each stock separately.

    Comment 9: The Center recommends that for humpback whales NMFS include the most recent observer data from 2013 and the resulting M/SI estimate in the NID. Specifically, the Center suggests that NMFS consider extrapolating observer data from all fisheries, including the Southeast Alaska drift gillnet fishery, to calculate mean or minimum annual mortality estimates as well as including stranding data from the marine mammal unusual mortality event that began in May 2015 in the western GOA. The Center feels that given the 2013 observer data and the 2015 stranding data, a significant number of animals may have been removed from the population and the extent of M/SI incidental to commercial fishing is unacceptably high.

    Response: These permits are iterative and cyclical; they are effective for 3 years per the MMPA. This means that NMFS is regularly considering the most recent information available in the NID analysis to support issuing these permits every three years. This particular permit is based on the 2014 final SAR, which includes 2008-2012 data. We will consider 2013 and 2015 data in future iterations of this permit. New data become available all the time; if we are constantly updating and revising the analysis it will hinder our ability to take action and issue permit decisions.

    Steller Sea Lions

    Comment 10: The Commission recommends that NMFS consider amending its criteria for making NIDs under section 101(a)(5)(E) of the MMPA to ensure that for declining marine mammal populations listed as endangered or threatened under the ESA, the estimated M/SI by commercial fisheries does not result in a statistically significantly increase in the rate of decline across a large portion of their geographic range. With regard to the western U.S. stock of Steller sea lions, before making a NID for the fisheries subject to this action, NMFS should evaluate M/SI in the three BSAI groundfish fisheries relative to the species' abundance in areas west of Samalga Pass where sea lion numbers have been declining.

    Response: NMFS appreciates the suggestion for amending the NID criteria and we will consider as we revise those criteria. As we note in the response to Comment 2, NMFS uses the best available information at the time of the NID analysis, including the currently identified range and trends as provided in the most recent SAR. Therefore, we are not conducting a new analysis at this time. With respect to observing the fishery, it is currently monitored both east and west of Samalga Pass and those data are incorporated into the stock assessment.

    Bearded and Ringed Seals

    Comment 11: The Commission notes that if, indeed, only 2 bearded seals are killed or seriously injured each year by commercial fisheries out of nearly 6,800 removals from the population, it is difficult to see how fisheries-related mortality can be considered significant even if overall PBR is exceeded. Given the removals of bearded and ringed seals by subsistence hunting, the Commission recommends that NMFS consider amending its criteria for making NIDs under section 101(a)(5)(E) of the MMPA to cover situations where (1) the level of mortality and serious injury exceeds or likely exceeds PBR primarily due to subsistence hunting, (2) subsistence hunting is determined to be sustainable, and (3) fishery-related take is a very small fraction of overall removals (e.g., <1.0 percent).

    Response: NMFS appreciates the suggestion for amending the NID criteria and we will consider it as we revise those criteria.

    Comment 12: The Commission raised concerns about the availability of reliable and up-to-date estimates of population size and subsistence harvest and feels that NMFS is not providing adequate funding to generate these estimates. Given the importance of subsistence hunting to Alaska Native communities and the possible effects of climate change on the abundance and health of ice seals, the Commission believes that NMFS must (1) in cooperation with its co-management partners, identify the essential components of ongoing programs to monitor the abundance and trends of ice seal populations and the number of seals taken by Native hunters, and (2) ensure that funding is adequate to implement those programs. The Commission therefore recommends that NMFS consult with the Alaska Native Ice Seal Committee to identify the steps necessary to carry out adequate ice seal population surveys and harvest monitoring programs, and seek the funding necessary to implement them. The Commission recognizes NMFS's constraints on funding for marine mammal research and management, but believes it is imperative that these needs receive higher priority.

    Response: NMFS recently conducted a protected species science program review of the Alaska Fisheries Science Center (AFSC). The review generated several recommendations related to ice seals. Recommendation 1.5 directs NMFS to develop an explicit strategy for assessing all stocks, considering costs, likely available funds, and scientific and management priorities. In its response, in 2015-2016, the NMFS AFSC committed to developing a proposed strategy for assessing all marine mammal stocks and including that strategy and a system for prioritizing those assessments in the 5-year plan for the AFSC. Regardless, abundance surveys for ice seals are ongoing, with another scheduled for 2016, which are intended to result in an abundance estimate. Additionally, Recommendation 1.6 directs NMFS to pursue support for bycatch and harvest monitoring in particularly risky fisheries or regions. The AFSC response notes that monitoring harvest levels is currently unfunded, and while resources are limited the AFSC will work with the NMFS Alaska Regional Office to develop a joint list of priorities for understanding harvest levels so both entities can solicit additional resources and coordinate to achieve this objective.

    Dated: June 20, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-14866 Filed 6-22-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE Patent and Trademark Office Legal Processes ACTION:

    Notice and request for comment.

    SUMMARY:

    The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on this continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).

    DATES:

    Written comments must be submitted on or before August 22, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Email: [email protected] Include “0651-0046 inquiry” in the subject line of the message.

    Federal Rulemaking Portal: http://www.regulations.gov.

    Mail: Marcie Lovett, Records Management Division Director, Office of the Chief Information Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Kyu Lee, Office of General Law, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-6421; or by email at [email protected] with “0651-0046 inquiry” in the subject line. Additional information about this collection is also available at http://www.reginfo.gov under “Information Collection Review.”

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    The purpose of this collection is to cover information requirements related to civil actions and claims involving current and former employees of the United States Patent and Trademark Office (USPTO). The rules for these legal processes may be found under 37 CFR part 104, which outlines procedures for service of process, demands for employee testimony and production of documents in legal proceedings, reports of unauthorized testimony, employee indemnification, and filing claims against the USPTO under the Federal Tort Claims Act (28 U.S.C. 2672) and the corresponding Department of Justice regulations (28 CFR part 14). The public may also petition the USPTO Office of General Counsel under 37 CFR 104.3 to waive or suspend these rules in extraordinary cases.

    The procedures under 37 CFR part 104 ensure that service of process intended for current and former employees of the USPTO is handled properly. The USPTO will only accept service of process for an employee acting in an official capacity. This collection is necessary so that respondents or their representatives can serve a summons or complaint on the USPTO, demand employee testimony and documents related to a legal proceeding, or file a claim under the Federal Tort Claims Act. Respondents may also petition the USPTO to waive or suspend these rules for legal processes. This collection is also necessary so that current and former USPTO employees may properly forward service and demands to the Office of General Counsel, report unauthorized testimony, and request indemnification. The USPTO covers current employees as respondents under this information collection even though their responses do not require approval under the Paperwork Reduction Act. In those instances where both current and former employees may respond to the USPTO, the agency estimates that the number of respondents will be small.

    There are no forms provided by the USPTO for this collection. For filing claims under the Federal Tort Claims Act, the public may use Standard Form 95 “Claim for Damage, Injury, or Death,” which is provided by the Department of Justice and approved by the Office of Management and Budget (OMB) under OMB Control Number 1105-0008.

    II. Method of Collection

    By mail or hand delivery to the USPTO.

    III. Data

    OMB Number: 0651-0046.

    Form Number(s): None.

    Type of Review: Revision of a currently approved collection.

    Affected Public: Individuals or households; businesses or other for-profits; not-for-profit institutions; and the Federal Government.

    Estimated Number of Respondents: 299 responses per year. The USPTO estimates that approximately 10% of these responses will be from small entities.

    Estimated Time per Response: The USPTO estimates that it will take the public from 5 minutes (0.08 hours) to 6 hours to prepare a single item in this collection, including gathering the necessary information, preparing the appropriate documents, and submitting the information required for this collection.

    Estimated Total Annual Hour Burden: 87.08 hours.

    Estimated Total Annual Cost Burden (Hourly): $35,539.05. The USPTO expects that the information in this collection will be prepared by attorneys and former employees at an hourly rate of $410, except for the requests for employee indemnification, which generally come from professional and supervisory staff at an hourly rate of $79.78. Since the majority of the former employees affected by this collection are attorneys, the estimated attorney hourly rate will be used for former employees as well. Using these hourly rates, the USPTO estimates that the total respondent cost burden for this collection will be approximately $35,539.05 per year.

    Table 1—Respondent Hourly Cost Burden IC No./Item Estimated
  • response
  • time
  • (hours)
  • Estimated
  • annual
  • responses
  • Estimated
  • annual
  • burden hours
  • Rate
  • ($/hr)
  • Total cost
  • ($/yr)
  • (a) (b) (a) × (b) = (c) (d) (c) × (d) = (e) 1. Petition to Waive Rules 0.50 5 2.50 $410.00 $1,025.00 2. Service of Process 0.08 243 20.25 410.00 8,302.50 3. Forwarding Service 0.17 7 1.17 410.00 478.33 4. Employee Testimony and Production of Documents in Legal Proceedings 1.00 23 23.00 410.00 9,430.00 5. Forwarding Demands 0.17 10 1.67 410.00 683.33 6. Report of Unauthorized Testimony 0.50 1 0.50 410.00 205.00 7. Report of Possible Indemnification Cases 0.50 3 1.50 410.00 615.00 8. Employee Indemnification 0.50 1 0.50 79.78 39.89 9. Tort Claims 6.00 6 36.00 410.00 14,760.00 Totals 299 87.08 35,539.05

    Estimated Total Annual Non-hour Respondent Cost Burden: $3,436. There are no capital start-up, maintenance, or recordkeeping costs associated with this information collection. However, this collection does have annual (non-hour) costs in the form of filing fees and postage costs.

    Filing Fees

    This collection has filing fees associated with the petition to waive or suspend the legal process rules under 37 CFR 104.3. The USPTO estimates that 5 petitions will be filed per year with a fee of $130, for a total fee cost of $650. There are no other fees associated with this information collection.

    Postage Costs

    Customers may incur postage costs when submitting the information in this collection to the USPTO by mail. The USPTO estimates that the average first-class postage for a mailed submission, other than a Service of Process, will be $0.94 and that up to 56 of these submissions will be mailed to the USPTO per year, for a postage cost of $52.64. The USPTO estimates that the average postage for a Service of Process will be $11.35 and that up to 243 of these submissions will be mailed to the USPTO per year, for a postage cost of $2,758.05. The estimated postage cost for this collection is $2,810.69 per year.

    Therefore, the total annual (non-hour) respondent cost burden for this collection, in the form of filing fees ($650.00) and postage costs ($2,810.69), is estimated to be approximately $3,460.69 per year.

    IV. Request for Comments

    Comments are invited on:

    (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

    (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information, including the validity of the methodology and assumptions used;

    (c) ways to enhance the quality, utility, and clarity of the information to be collected; and

    (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they will also become a matter of public record.

    Dated: June 16, 2016. Marcie Lovett, Records Management Division Director, OCIO, United States Patent and Trademark Office.
    [FR Doc. 2016-14856 Filed 6-22-16; 8:45 am] BILLING CODE 3510-16-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Promoting Student Resilience AGENCY:

    Office of Elementary and Secondary Education, Department of Education.

    ACTION:

    Notice.

    Overview Information: Promoting Student Resilience.

    Notice inviting applications for new awards for fiscal year (FY) 2016.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.184C. DATES:

    Applications Available: June 23, 2016.

    Deadline for Transmittal of Applications: July 25, 2016.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The Promoting Student Resilience program provides grants to local educational agencies (LEAs) (or consortia of LEAs) to build and increase their capacity to address the comprehensive behavioral and mental health needs of students in communities that have experienced Significant civil unrest 1 in the past 24 months.

    1 Defined terms are used throughout the notice and are indicated by capitalization.

    Background: Recent events have demonstrated that incidents involving civil unrest can disrupt schools and adversely impact the learning environment. These experiences can traumatize students, and this trauma can have lasting adverse effects on the mental, social, and emotional well-being of children and youth. The communities that are directly impacted by Significant civil unrest often have a long history of poverty, neglect, and inequality, and students in these communities often face barriers to accessing social and health services. It is widely recognized that there may also be a history of tension in the relationships between members of the community and agents of the public sector that deters efforts to seek such services.

    According to the Substance Abuse and Mental Health Services Administration (SAMHSA), trauma results from an event or a series of events, or a set of circumstances that is perceived by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual's mental, social, or emotional well-being.2

    2 Substance Abuse and Mental Health Services Administration. SAMHSA's Concept of Trauma and Guidance for a Trauma-Informed Approach. HHS Publication No. (SMA) 14-4884. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014.

    Priorities: This notice contains one absolute priority and two competitive preference priorities. We are establishing these priorities for the FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1).

    Absolute Priority: This priority is an absolute priority. Under 34 CFR 75.105(c)(3) we consider only applications that meet this priority.

    This priority is:

    Grants to Local Educational Agencies (LEAs) to Provide School-Based Supports to Address the Behavioral and Mental Health Needs of Students in Communities That Have Experienced Significant Civil Unrest.

    Under this priority, we provide grants to LEAs (or consortia of LEAs) in communities that have experienced Significant civil unrest to expand the capacity of those LEAs to more effectively address the behavioral and mental health needs of affected students in those communities. An increased capacity of enhanced social and emotional supports, combined with other school-based strategies, will offer schools an opportunity to create, strengthen, and maintain safe and supportive learning environments. These projects must:

    (a) Expand the capacity of the LEA(s) to more effectively address the behavioral and mental health needs of students, and

    (b) Provide increased access for students to school-based counseling services, or referrals to community-based counseling services, for assistance in coping with trauma.

    Competitive Preference Priorities: These priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(1) we award up to an additional 10 points to an application that meets Competitive Preference Priority 1, depending on how well the application meets this priority. We also award 5 points on an all or nothing basis to an application that meets Competitive Preference Priority 2. Therefore, the maximum number of competitive preference priority points that an application can receive under this competition is 15 points.

    These priorities are:

    Competitive Preference Priority 1—Coordination with Community-Based Organizations.

    Under this priority, we provide up to an additional 10 points to an applicant based on the application's description of a credible, high-quality plan to coordinate activities that would be funded under the proposed project with related activities that would be conducted under other programs for which the applicant currently has, or is seeking, funding, including, but not limited to, the Substance Abuse and Mental Health Service Administration's Resiliency in Communities After Stress and Trauma grant program (CFDA 93.243). The coordination plan must include: (1) A description of how the applicant will coordinate with Community-based organizations with experience carrying out similar or related activities to promote student resilience; and (2) evidence of collaboration and coordination through letters of support or a memorandum of understanding from the entities with which the collaboration and coordination will occur. Applicants that receive additional competitive preference points under this priority and who are ultimately awarded a Promoting Student Resilience grant must finalize and implement the high-quality plan described in response to this priority within six months of the grant award.

    Competitive Preference Priority 2—Emergency Declaration Status.

    Under this priority, we provide an additional 5 points to an applicant from a community in which Significant civil unrest resulted in an emergency declaration from the governor. Applicants must provide a copy of the Governor's declaration in the application.

    Application Requirements: We are establishing these requirements for the FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1).

    To be eligible for a grant under this competition, an application must include, in addition to the items in the plan listed under Program Requirements, the following:

    (a) A description of Significant civil unrest experienced by the LEA(s) and its impact on the learning environment in specific schools;

    (b) A Logic model for how the applicant will use grant funds effectively;

    (c) A needs assessment of students who, as a result of exposure to Significant civil unrest, would benefit from enhanced or increased behavioral and mental health services. This needs assessment must include input from parents;

    (d) A capacity assessment of the LEA's, or LEAs', service delivery system's ability to provide mental and behavioral health services; and

    (e) A plan to successfully meet the program requirements for this competition, based on data from the needs assessment and the capacity assessment.

    Program Requirements: We are establishing these requirements for the FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1).

    Each grantee must implement a plan described in its approved application to:

    (a) Develop, enhance and increase its capacity to provide school-based mental health and behavioral services including, but not limited to:

    (1) Providing professional development opportunities for LEA and school mental health staff on how to screen for and respond to civil unrest-related trauma and implement strategies appropriate for school-based mitigation of trauma;

    (2) Improving the range, availability, and quality of school-based supports by hiring qualified mental health professionals with experience or training in the behavioral and mental health needs of youth who have experienced trauma related to recent events in their communities; and

    (3) Providing training to select school staff, community partners, youth, and parents on the challenges due to exposure to the trauma related to recent events in their communities, and on the importance of screening students and providing interventions to help students cope with traumatic events; and

    (b) Providing enhanced or increased behavioral and mental health services and supports while also increasing the grantee's capacity to provide those services and supports.

    Definitions: We are establishing the definition of “significant civil unrest” and “community-based organization” in this notice for the FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of GEPA, 20 U.S.C. 1232(d)(1). The definition of “local educational agency” is from section 9101(26) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB) (20 U.S.C. 7801). The definitions of “baseline,” “evidence of promise,” “logic model,” “quasi-experimental design study,” “randomized controlled trial,” and “relevant outcome” are from 34 CFR 77.1.

    Baseline means the starting point from which performance is measured and targets are set.

    Community-based organization means a private or public nonprofit organization of demonstrated effectiveness that:

    (1) Is representative of a community or significant segments of a community;

    (2) provides educational or related services to individuals in the community; and

    (3) has experience carrying out activities promoting student resilience.

    Evidence of promise means there is empirical evidence to support the theoretical linkage(s) between at least one critical component and at least one Relevant outcome presented in the logic model for the proposed process, product, strategy, or practice. Specifically, evidence of promise means the conditions in both paragraphs (i) and (ii) of this definition are met:

    (i) There is at least one study that is a—

    (A) Correlational study with statistical controls for selection bias;

    (B) Quasi-experimental design study that meets the What Works Clearinghouse Evidence Standards with reservations; or

    (C) Randomized controlled trial that meets the What Works Clearinghouse Evidence Standards with or without reservations.

    (ii) The study referenced in paragraph (i) of this definition found a statistically significant or substantively important (defined as a difference of 0.25 standard deviations or larger) favorable association between at least one critical component and one Relevant outcome presented in the logic model for the proposed process, product, strategy, or practice.

    Local educational agency (LEA) means:

    (1) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.

    (2) The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.

    (3) The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under the ESEA with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs.

    (4) The term includes educational service agencies and consortia of those agencies.

    (5) The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.

    Logic model (also referred to as theory of action) means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the Relevant outcome(s)) and describes the relationships among the key components and outcomes, theoretically and operationally.

    Quasi-experimental design study means a study using a design that attempts to approximate an experimental design by identifying a comparison group that is similar to the treatment group in important respects. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards with reservations (but not What Works Clearinghouse Evidence Standards without reservations).

    Randomized controlled trial means a study that employs random assignment of, for example, students, teachers, classrooms, schools, or districts to receive the intervention being evaluated (the treatment group) or not to receive the intervention (the control group). The estimated effectiveness of the intervention is the difference between the average outcomes for the treatment group and for the control group. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards without reservations.

    Relevant outcome means the student outcome(s) (or the ultimate outcome if not related to students) the proposed process, product, strategy, or practice is designed to improve; consistent with the specific goals of a program.

    Significant civil unrest means demonstrations of mass protest that included law enforcement involvement that occurred within 24 months immediately prior to June 23, 2016.

    Waiver of Proposed Rulemaking: Under the Administrative Procedure Act (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed priorities, definitions, and requirements. Section 437(d)(1) of GEPA, however, allows the Secretary to exempt from rulemaking requirements, regulations governing the first grant competition under a new or substantially revised program authority. This is the first grant competition for this program under section 4121 of the Elementary and Secondary Education Act as amended by the No Child Left Behind Act of 2001 and therefore qualifies for this exemption. In order to ensure timely grant awards, the Secretary has decided to forego public comment on the priorities, requirements, and definitions under section 437(d)(1) of GEPA. These priorities, requirements, and definitions will apply to the FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition.

    Program Authority:

    20 U.S.C. 7131, and Title III of Division H of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113).

    Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 79, 81, 82, 84, 97, 98, and 99. (b) The Office of Management and Budget (OMB) Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The regulations in 34 CFR part 299.

    Note: The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: $4,750,000.

    Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 from the list of unfunded applications from this competition.

    Estimated Range of Awards: $1,187,500-$2,375,000.

    Estimated Average Size of Awards: $1,500,000.

    Maximum Award: We will not fund any portion of a budget request exceeding $2,375,000 for a budget period of 24 months. The Assistant Secretary for Elementary and Secondary Education may change the maximum amount through a notice published in the Federal Register.

    Estimated Number of Awards: 2-4.

    Note: The Department is not bound by any estimates in this notice.

    Project Period: Up to 24 months.

    III. Eligibility Information

    1. Eligible Applicants: LEAs, or consortia of LEAs, from a community that has experienced Significant civil unrest.

    2. Cost Sharing or Matching: This program does not require cost sharing or matching.

    3. Other: Participation by Private School Children and Teachers. Section 9501 of the ESEA requires that SEAs, LEAs, or other entities receiving funds under the Safe and Drug-Free Schools and Communities Act provide for the equitable participation of private school children, their teachers, and other educational personnel in private schools located in geographic areas served by the grant recipient.

    In order to ensure that grant program activities address the needs of private school children, the applicant must engage in timely and meaningful consultation with appropriate private school officials during the design and development of the proposed program. This consultation must take place before the applicant makes any decision that affects the opportunities of eligible private school children, teachers, and other educational personnel to participate in grant program activities. The eligible entity should engage in a process of timely and meaningful consultation with private school officials and provide them with information related to the projected and final funding amounts for programs and services, including on the process the entity will use in preparing its competitive grant application. Administrative direction and control over grant funds must remain with the grantee.

    IV. Application and Submission Information

    1. Address to Request Application Package: You can obtain an application package via the Internet or from the Education Publications Center (ED Pubs). To obtain a copy via the Internet, use the following address: www.ed.gov/fund/grant/apply/grantapps/index.html. To obtain a copy from ED Pubs, write, fax, or call: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.

    You can contact ED Pubs at its Web site, also: www.EDPubs.gov or at its email address: [email protected].

    If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.184C.

    Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under Accessible Format in section VIII of this notice.

    2. Content and Form of Application Submission: Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this program.

    Page Limit: The application narrative is where you, the applicant, provide the project narrative to address the selection criteria that reviewers use to evaluate your application. The required budget and budget narrative will be provided in a separate section. You must limit the application narrative to the equivalent of no more than 30 pages, using the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    The page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section.

    Our reviewers will not read any pages of your application that exceed the page limit.

    3. Submission Dates and Times:

    Applications Available: June 23, 2016.

    Deadline for Transmittal of Applications: July 25, 2016.

    Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to Other Submission Requirements in section IV of this notice.

    We do not consider an application that does not comply with the deadline requirements.

    Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remains subject to all other requirements and limitations in this notice.

    4. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. However, under 34 CFR 79.8(a), we waive intergovernmental review in order to make awards by the end of FY 2016.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must—

    a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);

    b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;

    c. Provide your DUNS number and TIN on your application; and

    d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.

    You can obtain a DUNS number from Dun and Bradstreet at the following Web site: http://fedgov.dnb.com/webform. A DUNS number can be created within one to two business days.

    If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.

    The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.

    Note: Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through, Grants.gov.

    If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.

    Information about SAM is available at www.SAM.gov. To further assist you with obtaining and registering your DUNS number and TIN in SAM or updating your existing SAM account, we have prepared a SAM.gov Tip Sheet, which you can find at: http://www2.ed.gov/fund/grant/apply/sam-faqs.html.

    In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page: www.grants.gov/web/grants/register.html.

    7. Other Submission Requirements:

    Applications for grants under this competition must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.

    a. Electronic Submission of Applications.

    Applications for grants under the Promoting Student Resilience Program, CFDA number 84.184C, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.

    We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under Exception to Electronic Submission Requirement.

    You may access the electronic grant application for the Promoting Student Resilience Program at www.Grants.gov. You must search for the downloadable application package for this program by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.184, not 84.184C).

    Please note the following:

    • When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.

    • Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.

    • The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.

    • You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at www.G5.gov. In addition, for specific guidance and procedures for submitting an application through Grants.gov, please refer to the Grants.gov Web site at: www.grants.gov/web/grants/applicants/apply-for-grants.html.

    • You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.

    • You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.

    • You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (e.g., Word, Excel, WordPerfect, etc.) or submit a password-protected file, we will not review that material. Please note that this could result in your application not being considered for funding because the material in question—for example, the project narrative—is critical to a meaningful review of your proposal. For that reason it is important to allow yourself adequate time to upload all material as PDF files. The Department will not convert material from other formats to PDF.

    • Your electronic application must comply with any page-limit requirements described in this notice.

    • After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. This notification indicates receipt by Grants.gov only, not receipt by the Department. Grants.gov will also notify you automatically by email if your application met all the Grants.gov validation requirements or if there were any errors (such as submission of your application by someone other than a registered Authorized Organization Representative, or inclusion of an attachment with a file name that contains special characters). You will be given an opportunity to correct any errors and resubmit, but you must still meet the deadline for submission of applications.

    Once your application is successfully validated by Grants.gov, the Department will retrieve your application from Grants.gov and send you an email with a unique PR/Award number for your application.

    These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by Grants.gov, it must also meet the Department's application requirements as specified in this notice and in the application instructions. Disqualifying errors could include, for instance, failure to upload attachments in a read-only, non-modifiable PDF; failure to submit a required part of the application; or failure to meet applicant eligibility requirements. It is your responsibility to ensure that your submitted application has met all of the Department's requirements.

    • We may request that you provide us original signatures on forms at a later date.

    Application Deadline Date Extension in Case of Technical Issues with the Grants.gov System: If you are experiencing problems submitting your application through Grants.gov, please contact the Grants.gov Support Desk, toll free, at 1-800-518-4726. You must obtain a Grants.gov Support Desk Case Number and must keep a record of it.

    If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.

    If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice and provide an explanation of the technical problem you experienced with Grants.gov, along with the Grants.gov Support Desk Case Number. We will accept your application if we can confirm that a technical problem occurred with the Grants.gov system and that the problem affected your ability to submit your application by 4:30:00 p.m., Washington, DC time, on the application deadline date. We will contact you after we determine whether your application will be accepted.

    Note: The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.

    Exception to Electronic Submission Requirement: You qualify for an exception to the electronic submission requirement, and may submit your application in paper format, if you are unable to submit an application through the Grants.gov system because—

    • You do not have access to the Internet; or

    • You do not have the capacity to upload large documents to the Grants.gov system; and

    • No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.

    If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.

    Address and mail or fax your statement to: Deirdra Hilliard, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E-249, Washington, DC 20202-6450. FAX: (202) 453-6742.

    Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.

    b. Submission of Paper Applications by Mail.

    If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.184C), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.

    You must show proof of mailing consisting of one of the following:

    (1) A legibly dated U.S. Postal Service postmark.

    (2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

    (3) A dated shipping label, invoice, or receipt from a commercial carrier.

    (4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.

    If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

    (1) A private metered postmark.

    (2) A mail receipt that is not dated by the U.S. Postal Service.

    Note: The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

    We will not consider applications postmarked after the application deadline date.

    c. Submission of Paper Applications by Hand Delivery.

    If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.184C), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.

    The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.

    Note for Mail or Hand Delivery of Paper Applications: If you mail or hand deliver your application to the Department—

    (1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and

    (2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.

    V. Application Review Information

    1. Selection Criteria: The selection criteria for this program are from 34 CFR 75.210 of EDGAR. All of the selection criteria are listed in this section and in the application package. The maximum score for all of the selection criteria is 100 points. The maximum score for each criterion is included in parentheses following the title of the specific selection criterion. Each criterion also includes one or more factors that reviewers will consider in determining the extent to which an applicant meets the criterion. Points awarded under these selection criteria are in addition to any points an applicant earns under the competitive preference priorities in this notice. The maximum score that an application may receive under the competitive preference priorities and the selection criteria is 115 points.

    1. Need for Project. (20 points)

    The Secretary considers the need for the proposed project. In determining the need for the proposed project, the Secretary considers the following factors:

    (a) The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project. (10 points)

    (b) The extent to which specific gaps or weaknesses in services, infrastructure or opportunities have been identified and will be addressed by the proposed project including the nature and magnitude of those gaps or weaknesses. (10 points)

    2. Quality of the Project Design. (45 points)

    The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:

    (a) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs. (15 points)

    (b) The extent to which the proposed project will integrate with or build on similar or related efforts in order to improve Relevant outcome(s) (as defined in 34 CFR 77.1(c)), using existing funding streams from other programs or policies supported by community, State, and Federal resources. (10 points)

    (c) The extent to which the proposed project is supported by Evidence of promise (as defined in 34 CFR 77.1(c)). (10 points)

    (d) The extent to which the proposed project will establish linkages with other appropriate agencies and organizations providing services to the target population. (5 points)

    (e) The extent to which the proposed project encourages parental involvement. (5 points)

    3. Quality of Project Personnel. (10 points)

    The Secretary considers the quality of the personnel who will carry out the proposed project.

    (a) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. (5 points)

    In addition, the Secretary considers the following factor:

    (b) The qualifications, including relevant training and experience, of key project personnel. (5 points)

    4. Quality of the Management Plan. (15 points)

    The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan of the proposed project, the Secretary considers the following factor:

    (a) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (15 points)

    5. Quality of the Project Evaluation. (10 points)

    The Secretary considers the quality of the project evaluation to be conducted of the proposed project. In determining the quality of the evaluation of the proposed project, the Secretary considers the following factor:

    (a) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project. (10 points)

    2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Special Conditions: Consistent with 2 CFR 200.205, before awarding grants under this program the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    4. Performance Measures: (a) The Department has established the following performance measures for assessing the effectiveness of the Promoting Student Resilience grant program:

    1. The number of students served by the grant(s) receiving school-based and community mental health services to address student needs resulting from exposure to trauma; and

    2. The number of Community-based organizations that are coordinating and sharing resources with each other as a result of the grant(s).

    (b) Baseline data. Applicants must provide Baseline data for each of the performance measures listed in (a) and explain why each proposed Baseline is valid; or, if the applicant has determined that there are no established Baseline data for a particular performance measure, explain why there is no established Baseline and explain how and when, during the project period, the applicant will establish a valid Baseline for the performance measure.

    Note: If the applicant does not have experience with collection and reporting of performance data through other projects or research, the applicant should provide other evidence of capacity to successfully carry out data collection and reporting for its proposed project. These measures constitute the Department's indicators of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to these measure in conceptualizing the approach and evaluation for its proposed project. Each grantee will be required to provide, in its annual performance and final reports, data about its progress in meeting these measures.

    VII. Agency Contact FOR FURTHER INFORMATION CONTACT:

    Deirdra Hilliard, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E-249, Washington, DC 20202-6450. Telephone: (202) 453-6726 or by email: [email protected]

    If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.

    VIII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: June 20, 2016. Ann Whalen, Senior Advisor to the Secretary, Delegated the Duties of Assistant Secretary for Elementary and Secondary Education.
    [FR Doc. 2016-14907 Filed 6-22-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY [FE Docket No. 16-34-LNG] Cameron LNG, LLC; Application for Blanket Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations on a Short-Term Basis AGENCY:

    Office of Fossil Energy, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on February 19, 2016, by Cameron LNG, LLC (Cameron LNG), requesting blanket authorization to export liquefied natural gas (LNG) in an amount up to the equivalent of 254 billion cubic feet (Bcf) of natural gas on a cumulative basis over a two-year period effective as of the commencement of export of commissioning volumes, estimated to be the fourth quarter of 2017, but no later than six months thereafter.1 The LNG would be exported from the Cameron Terminal located in Cameron and Calcasieu Parishes, Louisiana to any country with the capacity to import LNG in ocean-going carriers and with which trade is not prohibited by U.S. law or policy, including both countries with which the United States has entered into a free trade agreement providing for national treatment for trade in natural gas (FTA countries) and other countries (non-FTA countries).

    1 Cameron LNG, LLC, Supplement Letter To Application to Export Liquefied Natural Gas on a Short-Term Basis to FTA and Non-FTA Countries, (Mar. 10, 2016).

    To date, Cameron LNG has been granted 5 long-term, multi-contract authorizations from DOE/FE: (1) Order No. 3059 to export LNG in a volume equivalent to 620 Bcf per year of natural gas from the Cameron Terminal to FTA countries, for a 20-year term; (2) Order No. 3391-A to export LNG in a volume equivalent to 620 Bcf per year of natural gas from the Cameron Terminal to non-FTA countries, for a 20-year term; 2 (3) Order No. 3620 to export LNG in a volume equivalent to 152 Bcf per year of natural gas from the Cameron Terminal to FTA countries, for a 20-year term; (4) Order No. 3797 to export LNG in a volume equivalent to 152 Bcf per year of natural gas from the Cameron Terminal to non-FTA countries, for a 20-year term 3 and (5) Order No. 3680 to export LNG in a volume equivalent to 515 Bcf per year of natural gas from the Cameron Terminal to FTA countries, for a 20-year term. Cameron LNG also has submitted a pending application in DOE/FE Docket No. 15-90-LNG to export LNG in a volume equivalent to 515 Bcf per year of natural gas from the Cameron Terminal to non-FTA countries, for a 20-year term. The volume in Cameron LNG's pending application is not additive to the volume authorized in DOE/FE Order No. 3680.

    2 Order Nos. 3059 and 3391-A are not additive.

    3 Order Nos. 3620 and 3797 are not additive.

    Cameron LNG states that, in anticipation of the start of liquefaction operations at the Cameron Terminal, it requests this blanket authorization to engage in short-term exports of LNG produced before the commencement of long-term commercial exports of domestically sourced LNG as approved in DOE/FE Order Nos. 3059, 3391-A, 3620, 3680, and 3797.4 Cameron LNG seeks to export this LNG on its own behalf and as agent for other parties who will hold title to the LNG at the time of export. The Application was filed under section 3 of the Natural Gas Act (NGA). Additional details can be found in Cameron LNG's Application, posted on the DOE/FE Web site at: http://energy.gov/fe/cameron-lng-llc-fe-dkt-no-16-34-lng-application-blanket-authority-export-lng-short-term-basis-fta.

    4 DOE/FE issued Order No. 3797 after Cameron LNG filed the application in DOE/FE Docket No. 14-34-LNG. DOE/FE has included the Order because Cameron LNG referencing the docket as a pending application at 4.

    Protests, motions to intervene, notices of intervention, and written comments are invited.

    DATES:

    Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, July 25, 2016.

    ADDRESSES:

    Electronic Filing by email: [email protected].

    Regular Mail: U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, P.O. Box 44375, Washington, DC 20026-4375.

    Hand Delivery or Private Delivery Services (e.g., FedEx, UPS, etc.): U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Larine Moore or Amy Sweeney, U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478; (202) 586-2627. Edward Myers, U.S. Department of Energy (GC-76), Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-3397. SUPPLEMENTARY INFORMATION: DOE/FE Evaluation

    The portion of the Application seeking authority to export commissioning volumes to non-FTA countries will be reviewed pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a), and DOE will consider any issues required by law or policy. In reviewing this Application, DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the following two studies examining the cumulative impacts of exporting domestically produced LNG:

    Effect of Increased Levels of Liquefied Natural Gas on U.S. Energy Markets, conducted by the U.S. Energy Information Administration upon DOE's request (2014 EIA LNG Export Study); 5 and

    5 The 2014 EIA LNG Export Study, published on Oct. 29, 2014, is available at: https://www.eia.gov/analysis/requests/fe/.

    The Macroeconomic Impact of Increasing U.S. LNG Exports, conducted jointly by the Center for Energy Studies at Rice University's Baker Institute for Public Policy and Oxford Economics, on behalf of DOE (2015 LNG Export Study).6

    6 The 2015 LNG Export Study, dated Oct. 29, 2015, is available at: http://energy.gov/sites/prod/files/2015/12/f27/20151113_macro_impact_of_lng_exports_0.pdf.

    Additionally, DOE will consider the following environmental documents:

    Addendum to Environmental Review Documents Concerning Exports of Natural Gas From the United States, 79 FR 48132 (Aug. 15, 2014);7 and

    7 The Addendum and related documents are available at: http://energy.gov/fe/draft-addendum-environmental-review-documents-concerning-exports-natural-gas-united-states.

    Life Cycle Greenhouse Gas Perspective on Exporting Liquefied Natural Gas from the United States, 79 FR 32260 (June 4, 2014).8

    8 The Life Cycle Greenhouse Gas Report is available at: http://energy.gov/fe/life-cycle-greenhouse-gas-perspective-exporting-liquefied-natural-gas-united-states.

    Parties that may oppose this Application should address these issues and documents in their comments and/or protests, as well as other issues deemed relevant to the Application.

    The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. Cameron LNG states that no new or modified facilities at the Cameron Terminal would be required for the short-term exports requested in the Application. No final decision will be issued in this proceeding until DOE has met its environmental responsibilities.

    Interested persons will be provided 30 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, notices of intervention, or motions for additional procedures.

    Public Comment Procedures

    In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested parties will be provided 30 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.

    Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.

    Filings may be submitted using one of the following methods: (1) Emailing the filing to [email protected], with FE Docket No. 16-34-LNG in the title line; (2) mailing an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES; or (3) hand delivering an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES. All filings must include a reference to FE Docket No. 16-34-LNG. Please Note: If submitting a filing via email, please include all related documents and attachments (e.g., exhibits) in the original email correspondence. Please do not include any active hyperlinks or password protection in any of the documents or attachments related to the filing. All electronic filings submitted to DOE must follow these guidelines to ensure that all documents are filed in a timely manner. Any hardcopy filing submitted greater in length than 50 pages must also include, at the time of the filing, a digital copy on disk of the entire submission.

    A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.

    The Application is available for inspection and copying in the Office of Regulation and International Engagement docket room, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address: http://www.fe.doe.gov/programs/gasregulation/index.html.

    Issued in Washington, DC, on June 16, 2016. John A. Anderson, Director, Office of Regulation and International Engagement, Office of Oil and Natural Gas. [FR Doc. 2016-14869 Filed 6-22-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Agency Information Collection Extension AGENCY:

    U.S. Department of Energy.

    ACTION:

    Submission for Office of Management and Budget (OMB) review; comment request.

    SUMMARY:

    The Department of Energy (DOE) has submitted an information collection request to the OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection request a three-year extension for Exchange/Sale Report, Excess Personal Property Furnished to Non-Federal Recipients, Agency Report of Motor Vehicle Data, Annual Motor Vehicle Fleet Report, and OMB Control Number 1910-1000. The proposed collection covers information necessary to prepare and submit the annual property reports required by 41 CFR part 102 and the Office of Management and Budget.

    DATES:

    Comments regarding this proposed information collection must be received on or before July 25, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202-395-4650.

    ADDRESSES:

    Written comments may be sent to DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503.

    And to: Scott Whiteford, Deputy Director Office of Asset Management, MA-50/L'Enfant Plaza Building, Washington, DC 20585-1615, [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Scott Whiteford, at the above address, or by telephone at (202) 287-1563, or by fax (202) 287-1656.

    Information for the Excess Personal Property Furnished to Non-Federal Recipients and the Exchange/Sale Report is collected using GSA's Personal Property Reporting Tool and can be found at the following link: https://gsa.inl.gov/property/.

    Information for the Federal Fleet Report is collected using the Federal Automotive Statistical Tool and can be found at the following link: https://fastweb.inel.gov/.

    SUPPLEMENTARY INFORMATION:

    This information collection request contains: (1) OMB No. 1910-1000; (2) Information Collection Request Title: Exchange/Sale Report, Excess Personal Property Furnished to Non-Federal Recipients, Federal Automotive Statistical Tool Report; (3) Type of Review: Renewal; (4) Purpose: The information being collected is data required in order to submit annual personal property reports as required by 41 CFR part 102 and the Office of Management and Budget. Respondents to this information collection request will be the Department of Energy's Management and Operating Contractor and other major site contractors; (5) Annual Estimated Number of Total Respondents: 76 respondents for each of the three reports; (6) Annual Estimated Number of Total Responses: 228 (76 respondents × 3 reports) ; (7) Total annual estimated number of burden hours is 1,672. A breakout of burden hours for each report is listed below:

    ○ Exchange/Sale 2 hours with 76 respondents,

    ○ Non-Federal Recipient Report are estimated at 2 hours for 76 estimated,

    ○ Federal Automotive Statistical Tool at 18 hours for each of the 76 estimated respondents, for a total of 1,368 burden hours.

    (8) Annual Estimated Reporting and Recordkeeping Cost Burden is $133,760.

    Authority:

    (A) 41 CFR 102-39.85, (B) 41 CFR 102-36.295 and 102-36.300, (C) OMB Circular A-11 section 25.5, (D) 41 CFR 102-34.335.

    Issued in Washington, DC, on June 17, 2016. Scott Whiteford, Deputy Director Office of Asset Management.
    [FR Doc. 2016-14864 Filed 6-22-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC16-132-000.

    Applicants: West Deptford Energy, LLC.

    Description: Application for Approval Under Section 203 of the Federal Power Act and Request for Expedited Action of West Deptford Energy, LLC.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5163.

    Comments Due: 5 p.m. ET 7/7/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER16-1946-000.

    Applicants: Atlantic Energy LLC.

    Description: Baseline eTariff Filing: Atlantic Energy Market Based Rate Tariff to be effective 6/16/2016.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5150.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER16-1947-000.

    Applicants: Atlantic Energy MD, LLC.

    Description: Baseline eTariff Filing: Atlantic Energy MD Market Based Rate Tariff to be effective 6/16/2016.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5151.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER16-1948-000.

    Applicants: Atlantic Energy MA LLC.

    Description: Baseline eTariff Filing: Atlantic Energy MA Market Based Rate Tariff to be effective 6/16/2016.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5156.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER16-1949-000.

    Applicants: West Deptford Energy, LLC.

    Description: Request for Waiver and Request for Expedited Consideration of West Deptford Energy, LLC.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5170.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER16-1950-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendment to WMPA SA No. 3234, Queue No. W4-060 per Assignment to CEP to be effective 9/17/2014.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5020.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1951-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: 2646R2 Kansas Municipal Energy Agency NITSA NOA to be effective 6/1/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5030.

    Comments Due: 5 p.m. ET 7/8/16.

    Take notice that the Commission received the following electric securities filings:

    Docket Numbers: ES16-38-000.

    Applicants: AEP Texas Central Company.

    Description: Application Pursuant to Section 204 of the Federal Power Act of AEP Texas Central Company to issue securities.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5162.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ES16-39-000.

    Applicants: AEP Texas North Company.

    Description: Application Under Section 204 of the Federal Power Act of AEP Texas North Company to issue securities.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5165.

    Comments Due: 5 p.m. ET 7/7/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: June 17, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-14862 Filed 6-22-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1987-002.

    Applicants: Ontario Power Generation Energy Trading, Inc.

    Description: Notice of Non-Material Change in Status of Ontario Power Generation Energy Trading, Inc.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5119.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER10-2137-016; ER14-2798-008; ER14-2799-008; ER16-750-004; ER12-164-015; ER15-1873-006; ER10-2130-016; ER10-2131-016; ER10-2138-016; ER10-2139-016; ER10-2140-016; ER10-2141-016; ER14-2187-010; ER11-4044-017; ER11-4046-016; ER10-2127-015; ER10-2125-016; ER16-1406-002; ER15-1041-006; ER15-2205-006; ER10-2133-016; ER10-2124-015; ER11-3872-017; ER10-2764-015; ER10-2132-015; ER10-2128-015.

    Applicants: Beech Ridge Energy LLC, Beech Ridge Energy II LLC, Beech Ridge Energy Storage LLC, Bethel Wind Farm LLC, Forward Energy LLC, Bishop Hill Energy III LLC, Grand Ridge Energy LLC, Grand Ridge Energy II LLC, Grand Ridge Energy III LLC, Grand Ridge Energy IV LLC, Grand Ridge Energy V LLC, Grand Ridge Energy Storage LLC, Gratiot County Wind LLC, Gratiot County Wind II LLC, Invenergy TN LLC, Judith Gap Energy LLC, Peak View Wind Energy LLC, Prairie Breeze Wind Energy II LLC, Prairie Breeze Wind Energy III LLC, Sheldon Energy LLC, Spring Canyon Energy LLC, Stony Creek Energy LLC, Vantage Wind Energy LLC, Willow Creek Energy LLC, Wolverine Creek Energy LLC, Buckeye Wind Energy LLC.

    Description: Notification of Change in Facts of Beech Ridge Energy LLC, et al.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5175.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER14-1193-001.

    Applicants: West Deptford Energy, LLC.

    Description: Compliance filing: Informational Filing Regarding Planned Transfer to be effective N/A.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5113.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1637-001.

    Applicants: UIL Distributed Resources, LLC.

    Description: Tariff Amendment: Supplement to Application for Market-Based Rate Authorization to be effective 5/7/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5171.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1833-000.

    Applicants: Sempra Gas & Power Marketing, LLC.

    Description: Supplement to June 1, 2016 Sempra Gas & Power Marketing, LLC tariff filing.

    Filed Date: 6/16/16.

    Accession Number: 20160616-5172.

    Comments Due: 5 p.m. ET 7/7/16.

    Docket Numbers: ER16-1952-000.

    Applicants: Boulder Solar Power, LLC.

    Description: Initial rate filing: Boulder Shared Facilities Agreement No. 1 to be effective 7/1/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5086.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1953-000.

    Applicants: Boulder Solar II, LLC.

    Description: Baseline eTariff Filing: Boulder Shared Facilities Agreement No. 1 to be effective 7/1/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5088.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1954-000.

    Applicants: Boulder Solar III, LLC.

    Description: Baseline eTariff Filing: Boulder Shared Facilities Agreement No. 1 to be effective 7/1/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5089.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1955-000.

    Applicants: Antelope DSR 2, LLC.

    Description: Baseline eTariff Filing: Antelope DSR 2, LLC MBR Tariff to be effective 6/18/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5096.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1956-000.

    Applicants: Western Antelope Dry Ranch LLC.

    Description: Baseline eTariff Filing: Western Antelope Dry Ranch LLC MBR Tariff to be effective 6/18/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5102.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1957-000.

    Applicants: Niagara Mohawk Power Corporation, New York Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: NMPC filing SA 2283 Commercial Agreement between NMPC & NYSEG to be effective 4/20/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5114.

    Comments Due: 5 p.m. ET 7/8/16.

    Docket Numbers: ER16-1958-000.

    Applicants: Panda Patriot LLC.

    Description: Initial rate filing: Reactive Supply and Voltage Control from Generation or Other Sources Service to be effective 7/1/2016.

    Filed Date: 6/17/16.

    Accession Number: 20160617-5164.

    Comments Due: 5 p.m. ET 7/8/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: June 17, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-14863 Filed 6-22-16; 8:45 am] BILLING CODE 6717-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION Sunshine Act Meeting

    Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:23 a.m. on Tuesday, June 21, 2016, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters related to the Corporation's supervision, corporate, and resolution activities.

    In calling the meeting, the Board determined, on motion of Vice Chairman Thomas M. Hoenig, seconded by Director Thomas J. Curry (Comptroller of the Currency), concurred in by Director Richard Cordray (Director, Consumer Financial Protection Bureau), and Chairman Martin J. Gruenberg, that Corporation business required its consideration of the matters which were to be the subject of this meeting on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10).

    Dated: June 21, 2016. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
    [FR Doc. 2016-14996 Filed 6-21-16; 4:15 pm] BILLING CODE P
    FEDERAL ELECTION COMMISSION Sunshine Act Meeting AGENCY:

    Federal Election Commission.

    DATE & TIME:

    Tuesday, June 28, 2016 at 10:00 a.m.

    PLACE:

    999 E Street NW., Washington, DC.

    STATUS:

    This meeting will be closed to the public.

    ITEMS TO BE DISCUSSED:

    Compliance matters pursuant to 52 U.S.C. 30109. Matters concerning participation in civil actions or proceeding, or arbitration. PERSON TO CONTACT FOR INFORMATION:

    Judith Ingram, Press Officer, Telephone: (202) 694-1220.

    Shawn Woodhead Werth, Secretary and Clerk.
    [FR Doc. 2016-15028 Filed 6-21-16; 4:15 pm] BILLING CODE 6715-01-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 11, 2016.

    A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:

    1. Brian Scott Curb, Bemidji, MN; Melisa A. Bruns, Bemidji, MN; Ronald R. Cuperus, Bemidji, MN; Dean J. Thompson, Bemidji, MN; Glen T. Lindseth, Bemidji, MN; Mary Karen Bellmont Revocable Trust (Mary Karen Bellmont, trustee), St. Cloud, MN; Robert C. Welle Living Trust (Robert C. Welle, trustee), Saint Paul, MN; John P. Welle, Granger, IN; Mary Kay Welle, Granger, IN; Margaret M. Sitzer Revocable Trust (Margaret M. Sitzer, trustee), Rochester, MN; Patrick G. Welle, Bemidji, MN; Peter T. Welle, Washington, DC; Susan M. Stromberg, Colorado Springs, CO; Michael M. Stromberg, Colorado Springs, CO; David M. Stromberg, Grand Forks, ND; Brian W. Stromberg, Grand Forks, ND; Megan E. Stromberg, Grand Forks, ND; Theresa A. Welle, Waite Park, MN; Mary J. Welle Marvin, Warroad, MN; Conway A. Marvin, Warroad, MN; Nicholas A. Marvin, Warroad, MN; Ryan W. Marvin, Minneapolis, MN; Laura J. Marvin Nelson, Eden Prairie, MN; Jackelyn L. Marvin, Bemidji, MN; Christian D. Welle, Bemidji, MN; Amanda B. Welle, New York, NY; Jamie M. Welle, Lonsdale, MN; Samantha J. Baker, Bemidji, MN; Joseph W. Welle, Bloomington, MN; Katherine L. Canfield, Pinehurst, NC; Brian T. Canfield, Pinehurst, NC; William RW Canfield, Pinehurst, NC; Sarah J. Anderla, Appleton, WI; David Anderla, Appleton, WI; Drew B. Anderla, Appleton, WI; and Sarah J. Anderla, as custodian for Grant T. Anderla, Appleton, WI, and as custodian for Elena J. Anderla, Appleton, WI; for retroactive approval to join the Welle family shareholder group that controls 25 percent or more of the voting shares of First Bemidji Holding Company, Bemidji, Minnesota, and thereby indirectly controls The First National Bank of Bemidji, Bemidji, Minnesota.

    Board of Governors of the Federal Reserve System, June 20, 2016. Michele Taylor Fennell, Assistant Secretary of the Board.
    [FR Doc. 2016-14861 Filed 6-22-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-1548] Invitation To Participate in Account Management Pilot for the Import Trade Auxiliary Communication System AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing that it intends to conduct a pilot program to test and evaluate a new Import Trade Auxiliary Communication System (ITACS) Account Management function. Participation will be needed from a small group of Filers, Importers of Record, and Consignees, who will use the new ITACS Account Management function and provide feedback to FDA. FDA is inviting individual firms that wish to participate in this pilot program to submit participation requests via email.

    DATES:

    To be considered for participation in this ITACS pilot, please send an email with the subject line “ITACS Pilot Participation Request” by July 7, 2016.

    ADDRESSES:

    Submit pilot participation request emails to FDA's ITACS Support at [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Sandra Abbott, Division of Compliance Systems, Office of Enforcement and Import Operations, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20852-1740, 301-796-3240, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    ITACS currently provides the import trade community with four functions: (1) The ability to check the status of FDA-regulated entries and lines, (2) the ability to submit entry documentation electronically, (3) the ability to electronically submit the location of goods availability for those lines targeted for FDA physical examination, and (4) the ability to check the estimated laboratory analysis completion dates. No user login accounts are necessary to access these functions; all that is necessary is a valid customs entry number that has been successfully transmitted to FDA. FDA has developed, and wishes to test, an ITACS user account management function.

    II. Description and Conditions of the Pilot Program

    The purpose of this pilot is to test and evaluate a new ITACS account management function.

    This pilot will not impact the availability of current functionality of ITACS. Rather, it will provide FDA and a small group of volunteers with the opportunity to test expanded functionality of ITACS, specifically the use of user login accounts. User login accounts enable FDA to distribute Notices of FDA Action to users electronically via email (rather than regular mail) and enable users to download Notices of FDA Action from within ITACS. User login accounts also allow users to view in ITACS the details of specific information requests, which are currently delivered via hard copy Notices of FDA Action. Implementation of user login accounts would also allow for potential future ITACS enhancements, requested by the import trade community, that require user authentication.

    Pilot participants should be prepared to commit to: (1) Attending a kickoff training session, using the new functionality, (2) providing real-time feedback, and (3) participating in any followup meetings FDA deems necessary over the course of the pilot period. Pilot participants should also be willing to receive their Notices of FDA Action electronically in lieu of FDA distribution of paper Notices of FDA action.

    III. Duration

    FDA currently anticipates the pilot to begin in July 2016 and to last through October 2016. However, these dates are subject to change. A more definitive schedule will be determined after FDA has selected volunteers. FDA will contact selected volunteers via email within 2 weeks of the closure of the solicitation period.

    IV. How To Apply for Participation in the Pilot

    To be considered for participation in this ITACS pilot, please send an email with the subject line “ITACS Pilot Participation Request” to [email protected] by July 7, 2016. Please limit participation requests to one individual per firm at the corporate level. That person should be a high-ranking individual within the firm who could have the capability to create and manage ITACS accounts for other users at different locations within the same firm. FDA expects to select nine or fewer participants for this pilot program.

    Please include the following information in your pilot participation request email:

    • Your name, position, and contact information including email;

    • your firm's name and address; and

    • your firm's role in the importation of FDA-regulated entries (Filer, Importer of Record, Consignee, or any combination thereof).

    FDA will contact volunteers selected for participation in the pilot program via email within 2 weeks of the closure of the solicitation period.

    Dated: June 17, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-14874 Filed 6-22-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-0001] Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee; Amendment of Notice AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee. This meeting was announced in the Federal Register of June 16, 2016. The amendment is being made to reflect a change in the Procedure portion of the document. There are no other changes.

    FOR FURTHER INFORMATION CONTACT:

    Lauren D. Tesh, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, FAX: 301-847-8533, email: [email protected]; or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area). Please call the Information Line for up-to-date information on this meeting.

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of June 16, 2016, 81 FR 39274, FDA announced that a meeting of the Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee would be held on June 28 and 29, 2016. On page 39274, in the third column, the Procedure portion of the document is changed to read as follows:

    FDA regrets that it was unable to publish this notice 15 days prior to the June 28 and 29, 2016, Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee meeting. Because the Agency believes there is some urgency to bring these issues to public discussion and qualified members of the Pediatric Oncology Subcommittee of the Oncologic Drugs Advisory Committee meeting were available at this time, the Commissioner of Food and Drugs concluded that it was in the public interest to hold this meeting even if there was not sufficient time for the customary 15-day public notice.

    This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.

    Dated: June 16, 2016. Jill Hartzler Warner, Associate Commissioner for Special Medical Programs.
    [FR Doc. 2016-14827 Filed 6-22-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-D-1280] International Conference on Harmonisation; Electronic Transmission of Postmarket Individual Case Safety Reports for Drugs and Biologics, Excluding Vaccines; Availability of Food and Drug Administration Regional Implementation Specifications for ICH E2B(R3) Reporting to the Food and Drug Administration Adverse Event Reporting System AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing the availability of its FDA Adverse Event Reporting System (FAERS) Regional Implementation Specifications for the International Conference on Harmonisation (ICH) E2B(R3) Specification. FDA is making this technical specifications document available to assist interested parties in electronically submitting individual case safety reports (ICSRs) (and ICSR attachments) to the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER). This document, entitled “FDA Regional Implementation Specifications for ICH E2B(R3) Implementation: Postmarket Submission of Individual Case Safety Reports (ICSRs) for Drugs and Biologics, Excluding Vaccines” supplements the “E2B(R3) Electronic Transmission of Individual Case Safety Reports (ICSRs) Implementation Guide—Data Elements and Message Specification” final guidance for industry and describes FDA's technical approach for receiving ICSRs, for incorporating regionally controlled terminology, and for adding region-specific data elements when reporting to FAERS.

    DATES:

    Submit either electronic or written comments on the Regional Implementation Specifications document at any time.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-D-1280 for “FDA Regional Implementation Specifications for ICH E2B(R3) Implementation: Postmarket Submission of Individual Case Safety Reports for Drugs and Biologics, Excluding Vaccines.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Avenue, Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Suranjan De, Office of Surveillance and Epidemiology, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4307, Silver Spring, MD 20993, 240-402-0498, or [email protected]; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On February 21, 2014, FDA issued a Federal Register notice (79 FR 9908) announcing the availability of a final guidance for industry entitled “E2B (R3) Electronic Transmission of Individual Case Safety Reports (ICSRs) Implementation Guide—Data Elements and Message Specification” (ICH E2B(R3) guidance) and an appendix to the guidance entitled “ICSRs: Appendix to the Implementation Guide—Backwards and Forward Compatibility” (BFC appendix). The ICH E2B(R3) guidance and BFC appendix were issued as a package that included schema files and additional technical information to be used for creating compatible ICSR files. The preface to the ICH E2B(R3) implementation guidance makes clear that any future “technical specifications document associated with that guidance would be provided as a stand-alone document” but incorporated by reference into that guidance. Accordingly, in this notice, we are announcing the availability of a technical specifications document that will be incorporated into that final guidance.

    This technical specifications document, which is available on the FDA Guidance Web page at http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/ucm274966.htm, is to assist interested parties in electronically submitting individual case safety reports (ICSRs) (and any ICSR attachments) to CDER and CBER. This document describes FDA's technical approach for submitting ICSRs, for incorporating its regionally controlled terminology, and for adding its regional data elements that are not addressed in the ICH E2B (R3) guidance for the following FDA-regulated products: Drug products marketed for human use with approved new drug applications and abbreviated new drug applications; prescription drug products marketed for human use without an approved application; nonprescription (over-the-counter) human drug products marketed without an approved application; and biological products marketed for human use with approved biologic license applications.

    II. Electronic Access

    Persons with access to the Internet may obtain a copy of the FDA Regional Implementation Specifications for ICH E2B(R3) at http://www.fda.gov/drugs/guidancecomplianceregulatoryinformation/surveillance/adversedrugeffects/ucm115894.htm, http://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/Guidances/default.htm, or http://www.regulations.gov.

    Dated: June 17, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-14845 Filed 6-22-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG-2016-0374] Waterway Suitability Assessment for Construction and Operation of Liquefied Gas Terminals; Sabine-Neches Waterway, Vidor, TX AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    Jefferson Railport Terminal 1 (Texas) LLC, has submitted a Letter of Intent and Preliminary Waterway Suitability Assessment to the Coast Guard Captain of the Port (COTP), Port Arthur, TX regarding the company's plans to construct, own and operate a waterfront facility handling and storing Liquefied Hazardous Gas (LHG) at its Vidor, TX facility located on the Sabine-Neches Waterway. The Coast Guard is notifying the public of this action to solicit public comments on the proposed increase in LHG marine traffic on the Sabine-Neches Waterway.

    DATES:

    Comments must be submitted to the online docket via http://www.regulations.gov, or reach the Docket Management Facility, on or before July 25, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0374 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    For further information about this notice, call or email Chief Petty Officer Jamie L. Merriman, U.S. Coast Guard; telephone 409-719-5033, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Public Participation and Comments

    We encourage you to submit comments or related material in response to this notice. We will consider all submissions and may adjust our final action based on your comments. If you submit a comment, please include the docket number for this notice, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Discussion, Basis, and Purpose

    Under 33 CFR 127.007(a), an owner or operator planning to build a new facility handling Liquefied Natural Gas (LNG) or Liquefied Hazardous Gas (LHG), where the construction, expansion, or modification would result in an increase in the size and/or frequency of LNG or LHG marine traffic on the waterway associated with the facility, must submit a Letter of Intent (LOI) to the COTP of the zone in which the facility is located. Under 33 CFR 127.007(e), an owner or operator planning such an expansion must also file or update a Waterway Suitability Assessment (WSA) that addresses the proposed increase in LNG or LHG marine traffic in the associated waterway. Jefferson Railport Terminal 1 (Texas) LLC, located in Vidor, TX submitted an LOI and WSA on March 7, 2016, regarding the company's proposed construction and operation of LHG capabilities at its Vidor, TX facility.

    Under 33 CFR 127.009, after receiving an LOI, the COTP issues a Letter of Recommendation (LOR) as to the suitability of the waterway for LNG or LHG marine traffic to the appropriate jurisdictional authorities. The LOR is based on a series of factors outlined in 33 CFR 127.009 that relate to the physical nature of the affected waterway and issues of safety and security associated with LNG or LHG marine traffic on the affected waterway.

    The purpose of this notice is to solicit public comments on the proposed increase in LHG marine traffic on the Sabine-Neches Waterway. The Coast Guard believes that input from the public may be useful to the COTP with respect to development of the LOR. Additionally, the Coast Guard intends to task the Area Maritime Security Committee, Port Arthur, TX and the Southeast Texas Waterways Advisory Council with forming a subcommittee comprised of affected port users and stakeholders. The goal of this subcommittee will be to gather information to help the COTP assess the suitability of the associated waterway for increased LHG marine traffic as it relates to navigational safety and security.

    On January 24, 2011, the Coast Guard published Navigation and Vessel Inspection Circular (NVIC) 01-2011, “Guidance Related to Waterfront Liquefied Natural Gas (LNG) Facilities”. NVIC 01-2011 provides guidance for owners and operators seeking approval to build and operate LNG facilities. While NVIC 01-2011 is specific to LNG, it provides useful process information and guidance for owners and operators seeking approval to build and operate LHG facilities as well. The Coast Guard will refer to NVIC 01-2011 for process information and guidance in evaluating Jefferson Railport Terminal 1's WSA. A copy of NVIC 01-2011 is available for viewing in the public docket for this notice and also on the Coast Guard's Web site at http://www.uscg.mil/hq/cg5/nvic/2010s.asp.

    This notice is issued under authority of 33 U.S.C. 1223-1225, Department of Homeland Security Delegation Number 0170.1(70), 33 CFR 127.009, and 33 CFR 103.205.

    Dated: May 27, 2016. R.S. Ogrydziak, Captain, U.S. Coast Guard, Captain of the Port, Port Arthur.
    [FR Doc. 2016-14910 Filed 6-22-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection [1651-0111] Agency Information Collection Activities: Arrival and Departure Record (Forms I-94 and I-94W) and Electronic System for Travel Authorization AGENCY:

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

    ACTION:

    60-Day Notice and request for comments; revision of an existing collection of information.

    SUMMARY:

    U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: CBP Form I-94 (Arrival/Departure Record), CBP Form I-94W (Nonimmigrant Visa Waiver Arrival/Departure), and the Electronic System for Travel Authorization (ESTA). This is a proposed extension and revision of an information collection that was previously approved. CBP is proposing that this information collection be extended with a revision to the information collected. This document is published to obtain comments from the public and affected agencies.

    DATES:

    Written comments should be received on or before August 22, 2016 to be assured of consideration.

    ADDRESSES:

    Written comments may be mailed to U.S. Customs and Border Protection, Attn: Paperwork Reduction Act Officer, Regulations and Rulings, Office of Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Paperwork Reduction Act Officer, U.S. Customs and Border Protection, Regulations and Rulings, Office of Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, or by telephone at 202-325-0123.

    SUPPLEMENTARY INFORMATION:

    CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for OMB approval. All comments will become a matter of public record. In this document, CBP is soliciting comments concerning the following information collection:

    Title: Arrival and Departure Record, Nonimmigrant Visa Waiver Arrival/Departure, and Electronic System for Travel Authorization (ESTA).

    OMB Number: 1651-0111.

    Form Numbers: I-94 and I-94W.

    Abstract Background

    CBP Forms I-94 (Arrival/Departure Record) and I-94W (Nonimmigrant Visa Waiver Arrival/Departure Record) are used to document a traveler's admission into the United States. These forms are filled out by aliens and are used to collect information on citizenship, residency, passport, and contact information. The data elements collected on these forms enable the Department of Homeland Security (DHS) to perform its mission related to the screening of alien visitors for potential risks to national security and the determination of admissibility to the United States. The Electronic System for Travel Authorization (ESTA) applies to aliens seeking to travel to the United States under the Visa Waiver Program (VWP) and requires that VWP travelers provide information electronically to CBP before embarking on travel to the United States without a visa. Travelers who are entering the United States under the VWP in the air or sea environment, and who have a travel authorization obtained through ESTA, are not required to complete the paper Form I-94W.

    Pursuant to an interim final rule published on March 27, 2013 in the Federal Register (78 FR 18457) related to Form I-94, CBP has partially automated the Form I-94 process. CBP now gathers data previously collected on the paper Form I-94 from existing automated sources in lieu of requiring passengers arriving by air or sea to submit a paper I-94 upon arrival. Passengers can access and print their electronic I-94 via the Web site at www.cbp.gov/I94.

    ESTA can be accessed at: https://esta.cbp.dhs.gov. Samples of CBP Forms I-94 and I-94W can be viewed at: http://www.cbp.gov/document/forms/form-i-94-arrivaldeparture-record and http://www.cbp.gov/document/forms/form-i-94w-visa-waiver-arrivaldeparture-record.

    Recent Changes

    On December 18, 2015, the President signed into law the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 as part of the Consolidated Appropriations Act of 2016. To meet the requirements of this new Act, DHS strengthened the security of the VWP by enhancing the ESTA application and Form I-94W. In two recent emergency submissions under the Paperwork Reduction Act, additional questions were added to ESTA and to Form I-94W that request information from applicants about countries to which they have traveled on or after March 1, 2011; countries of which they are citizens/nationals; countries for which they hold passports; and Global Entry Numbers.

    Proposed Changes

    DHS proposes to add the following question to ESTA and to Form I-94W:

    “Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

    Current Actions: This submission is being made to extend the expiration date with a change to the information collected as a result of adding a question about social media to ESTA and to Form I-94W, as described in the Abstract section of this document. There are no changes to the burden hours or to the information collected on Form I-94, or the I-94 Web site.

    Type of Review: Revision.

    Affected Public: Individuals, Carriers, and the Travel and Tourism Industry.

    Form I-94 (Arrival and Departure Record):

    Estimated Number of Respondents: 4,387,550.

    Estimated Time per Response: 8 minutes.

    Estimated Burden Hours: 583,544.

    Estimated Annual Cost to Public: $26,325,300.

    I-94 Web site:

    Estimated Number of Respondents: 3,858,782.

    Estimated Time per Response: 4 minutes.

    Estimated Annual Burden Hours: 254,679.

    Form I-94W (Nonimmigrant Visa Waiver Arrival/Departure):

    Estimated Number of Respondents: 941,291.

    Estimated Time per Response: 16 minutes.

    Estimated Annual Burden Hours: 251,325.

    Estimated Annual Cost to the Public: $5,647,746.

    Electronic System for Travel Authorization (ESTA):

    Estimated Number of Respondents: 23,010,000.

    Estimated Time per Response: 23 minutes.

    Estimated Total Annual Burden Hours: 8,812,830.

    Estimated Annual Cost to the Public: $265,020,000.

    Dated: June 20, 2016, Tracey Denning, Agency Clearance Officer, U.S. Customs and Border Protection.
    [FR Doc. 2016-14848 Filed 6-22-16; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5651-N-03] Tribal Government-to-Government Consultation Policy AGENCY:

    Office of the Secretary, HUD.

    ACTION:

    Notice of final policy statement.

    SUMMARY:

    In compliance with Executive Order 13175, “Consultation with Indian Tribal Governments,” HUD adopts this Tribal Government-to-Government Consultation Policy. The purpose of this tribal consultation policy is to enhance communication and coordination between HUD and federally recognized Indian tribes and to outline guiding principles and procedures under which all HUD employees are to operate with regard to federally recognized Indian or Alaska Native tribes. This final policy statement follows publication of an April 8, 2015, request for public comment on HUD's proposed Tribal Consultation Policy and, after consideration of the public comments submitted in response to the April 8, 2015, notice, adopts the proposed policy without change.

    FOR FURTHER INFORMATION CONTACT:

    Heidi J. Frechette, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4126, Washington, DC 20410, telephone number 202-401-7914 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    SUPPLEMENTARY INFORMATION: Background

    Executive Order 13175 (65 FR 67249, published November 9, 2000) recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination. Among other things, it requires that agencies have an accountable process to ensure meaningful and timely input by tribal officials in developing policies that have tribal implications. On November 5, 2009, President Obama reaffirmed the government-to-government relationship between the Federal Government and Indian tribal governments in a White House memorandum that acknowledges that Indian tribes exercise inherent sovereign powers over their members and territory. The November 5, 2009, memorandum also acknowledged that the United States will continue to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.

    Development of HUD Tribal Government-to-Government Consultation Policy

    Consistent with Executive Order 13175, and the Presidential memorandum of November 5, 2009, HUD undertook a series of consultations and requested public comment on this consultation policy statement. Beginning in January 2010, HUD held a series of HUD-tribal regional consultations to discuss HUD's existing tribal consultation policy. Each consultation session was hosted by one of the six Office of Native American Programs (ONAP) Area Office Administrators. Prior to all meetings, the ONAP Area Office sent out invitation letters to all tribes and tribally designated housing entities to inform them of the meetings. The invitation package included the President's memorandum, Executive Order 13175, HUD's current tribal consultation policy, and a list of questions designed to prompt discussion and focus on the issues. HUD's Deputy Assistant Secretary for ONAP attended a Northwest ONAP and Eastern/Woodlands ONAP session, and HUD's Assistant Secretary for Public and Indian Housing participated in the initial session held in Suquamish, Washington. Participants at each of the consultation sessions were informed that an electronic mailbox had been established to receive their comments and that HUD's CODETALK Web site would be used to display all comments received. The comments from participants who attended these consultations, as well as all comments received by other means, were consolidated by HUD's ONAP. HUD carefully reviewed all comments received from all sources, responded, and made changes to the existing HUD consultation policy based on these comments, as appropriate.

    HUD conducted a second round of tribal consultation by sending the revised draft policy to all tribal leaders for their comment. On November 12, 2014, the Department provided all tribal leaders a draft version of HUD's revised tribal government-to-government consultation policy and requested their feedback and opinion on the draft. In response to the Department's November 12, 2014, request for comments, the Department received three comments from Indian tribes and a national organization that represents the housing interests of Native Americans.

    More recently, on April 8, 2015, at 70 FR 18858, HUD published a Federal Register notice requesting public comment on its tribal government-to-government consultation policy. HUD published this notice consistent with Executive Order 13175 and a November 5, 2009, Presidential memorandum that reaffirms the government-to-government relationship between the Federal Government and Indian tribal governments. HUD received eight public comments on the notice. Comments were received from tribes and tribal housing authority officials, nonprofits, advocacy groups, and interested members of the public. After considering public comment, HUD decided not to make any changes to its draft policy published on April 8, 2015. As a result, this notice establishes HUD's Tribal Government-to-Government Consultation Policy. HUD would like to respond, however, to several comments received in response to its April 8, 2015, request for comments.

    Comment: Consultation Requires Negotiated Rulemaking. One commenter stated that the consultation policy should recognize that any changes to regulations that directly impact tribes or tribal members require negotiated rulemaking. According to the commenter, there have been changes to regulations that had a direct, negative impact upon tribal members, and the only consultation performed was a “Dear Tribal Leader” letter. The commenter stated that the new consultation policy should prevent those lapses in the future by enshrining a mandatory negotiated rulemaking prior to these kinds of changes.

    HUD Response: HUD disagrees that negotiated rulemaking is required for all of HUD's regulatory actions that impact the tribes. Rather, section 106 of the Native American Housing and Self-Determination Act (NAHASDA), as amended, limits negotiated rulemaking to “any regulation that may be required pursuant to requirements made to [NAHASDA] after the effective date of enactment of this Act [October 1, 2008].” See 25 U.S.C. 4116(b). Procedures for implementing this requirement were recently codified in 24 CFR 1000.9. As a result, while negotiated rulemaking is required under the Indian Housing Block Grant program, HUD believes that negotiated rulemaking is only one method of tribal consultation, and that there are other forms of consultation that ensure tribal participation in HUD policy that might affect the tribes.

    Comment: Policy Should Make Clear that Tribes Can Initiate Consultation. One commenter stated that the policy as written only addresses the initiation of consultation by HUD and does not address the ability of tribes to initiate consultation with HUD on any specific issue or proposed policy that has tribal implications. The commenter recommended that the policy be revised to clarify that tribes can initiate consultation and that this right in no way alleviates HUD's regular and ongoing obligation to initiate and engage in meaningful consultation with individual tribes.

    HUD Response: HUD agrees with the commenter that consultation can be initiated by the tribes. HUD is not making this change, however, since nothing in this consultation policy prevents tribe from contacting or initiating consultation with HUD.

    Comment: Policy Must Address Confidentiality of Tribal Interests. One commenter, citing Pueblo of Sandia v United States, 50 F.3d 856, 861-62 (10th Cir. 1995), stated that it is critical to engage in tribal consultation in a manner that exhibits sensitivity to and respect for tribal confidentiality concerns regarding cultural, religious, political, and other intra-tribal affairs. According to the commenter, the current draft policy does not contain any provision to address the confidentiality of tribal interests. As a result, the commenter recommended that the policy be revised to require that HUD develop appropriate safeguards and policies to ensure adequate protection of tribal confidentiality interests throughout the entire consultation process.

    HUD Response: HUD appreciates the comment and shares the commenter's concerns regarding the importance of ensuring the confidentiality of tribal interests when appropriate. HUD also believes, however, that consultation and collaboration as envisioned by Executive Order 13175 and the Presidential memorandum of November 5, 2009, require transparency and fairness with all tribes to build trust among the tribes and the Federal Government. Notwithstanding, HUD will be sensitive to tribal confidentiality interests throughout the entire consultation policy.

    HUD Tribal Government-to-Government Consultation Policy I. Introduction

    A. The United States Government has a unique relationship with American Indian governments as set forth in the Constitution of the United States, treaties, statutes, judicial decisions, and Executive orders and Presidential memorandums.

    B. On April 29, 1994, a Presidential memorandum was issued reaffirming the Federal Government's commitment to operate within a government-to-government relationship with federally recognized American Indian and Alaska Native tribes, and to advance self-governance for such tribes.1 The Presidential memorandum directs each executive department and agency, to the greatest extent practicable and to the extent permitted by law, to consult with tribal governments prior to taking actions that have substantial direct affect on federally recognized tribal governments. In order to ensure that the rights of sovereign tribal governments are fully respected, all such consultations are to be open and candid so that tribal governments may evaluate for themselves the potential impact of relevant proposals.

    1 See http://www.thefederalregister.org/fdsys/pkg/FR-1994-05-04/html/94-10877.htm.

    On May 14, 1998, Executive Order 13084, Consultation and Coordination with Indian Tribal Government was issued.2 This Executive order was revoked and superseded on November 6, 2000, by Executive Order 13175,3 which is identically titled to Executive Order 13084 and which sets forth guidelines for all Federal agencies to: (1) Establish regular and meaningful consultation and collaboration with Indian tribal officials in the development of Federal policies that have tribal implications, (2) strengthen the United States government-to-government relationships with Indian tribes, and (3) reduce the imposition of unfunded mandates upon Indian tribes.

    2 See http://www.thefederalregister.org/fdsys/pkg/FR-1998-05-19/pdf/98-13553.pdf.

    3 See http://www.thefederalregister.org/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf.

    On November 5, 2009,4 President Obama issued a memorandum to the heads of all executive departments and agencies that reaffirmed that the United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, Executive orders, and judicial decisions. The memorandum stated that in recognition of that special relationship, pursuant to Executive Order 13175, of November 6, 2000, executive departments and agencies are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes. The memorandum stated that the Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications, and directed, among other things, as an initial step, through complete and consistent implementation of Executive Order 13175.

    4 See http://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president.

    C. This consultation policy applies to all HUD programs and policies that have substantial direct effects on Federally recognized Indian tribal governments. In formulating or implementing such policies, HUD will be guided by the fundamental principles set forth in section 2 of Executive Order 13175, to the extent applicable to HUD programs. Section 2 of the Executive order provides as follows:

    Sec. 2. Fundamental Principles. In formulating or implementing policies that have tribal implications, agencies shall be guided by the following fundamental principles:

    (a) The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.

    (b) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.

    (c) The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination.

    II. Definitions

    A. “Consultation” means the direct and interactive (i.e., collaborative) involvement of tribes in the development of regulatory policies on matters that have tribal implications.

    Consultation is the proactive, affirmative process of: (1) Identifying and seeking input from appropriate Native American governing bodies, community groups, and individuals; and (2) considering their interest as a necessary and integral part of HUD's decisionmaking process.

    This definition adds to statutorily mandated notification procedures. The goal of notification is to provide an opportunity for comment; however, with consultation procedures, the burden is on the Federal agency to show that it has made a good faith effort to elicit feedback.

    B. “Exigent situation” means an unforeseen combination of circumstances or the resulting state that calls for immediate action in order to preserve tribal resources, rights, interests, or Federal funding.

    C. “Indian tribe” means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.

    D. “Policies that have tribal implications” refers to regulations, legislative proposals, and other policy statements or actions that have substantial direct effects on one or more Indian tribe, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    E. “To the extent practicable and permitted by law” refers to situations where the opportunity for consultation is limited because of constraints of time, budget, legal authority, etc.

    F. “Tribal officials” means elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.

    III. Principles

    A. HUD respects tribal sovereignty and acknowledges the unique relationship between the Federal Government and Indian tribes.

    B. HUD recognizes and commits to a government-to-government relationship with federally recognized tribes.

    C. HUD recognizes tribes as the appropriate non-Federal parties for making policy decisions and managing programs for their constituents.

    D. HUD shall take appropriate steps to remove existing legal and programmatic impediments to working directly and effectively with tribes on programs administered by HUD.

    E. HUD shall encourage States and local governments to work with and cooperate with tribes to resolve problems of mutual concern.

    F. HUD shall work with other Federal departments and agencies to enlist their interest and support in cooperative efforts to assist tribes to accomplish their goals within the context of all HUD programs.

    G. HUD shall be guided by these policy principles in its planning and management activities, including its budget, operating guidance, legislative initiatives, management accountability system, and ongoing policy and regulation development processes for all programs affecting tribes.

    IV. Tribal Consultation Process

    A. Applicability. HUD will apply this tribal consultation policy to all proposed policies that have tribal implications, to the greatest extent practicable and permitted by law. Based on a government-to-government relationship and in recognition of the uniqueness of each tribe, the primary focus for consultation activities is with individual tribes. The Office of Public and Indian Housing's ONAP, may serve, under the direction of the Secretary, as the lead HUD office for the implementation of this policy. Internal HUD policies and procedures are excluded from this policy.

    B. Methods of Communication. The methods of communication used will be determined by the significance of the consultation matter, the need to act quickly, and other relevant factors. Consultation can be accomplished through various methods of communication. While modern technology and group events should be utilized whenever possible to conserve funds and respect time constraints of all those involved, generally these methods of communication should not serve in the place of formal, face-to-face discussion.

    C. Consultation with Tribes When Drafting Policies That Have Tribal Implications. To the extent practicable and permitted by law, HUD shall make reasonable efforts to consult with tribal officials concerning proposed policies that have tribal implications, before such policies are drafted, in order to facilitate greater tribal participation in development of the proposed policies. Such consultation shall include on the HUD Web site a notice of HUD's plans to develop such policies, and an invitation for tribal officials to comment on items that should be included in such policies. HUD shall provide a specific deadline for comments, which shall not be less than 30 days from the date of the notice. This timeline may be compressed in exigent situations.

    D. Notice of Proposed Policies That Have Tribal Implications. To the extent practicable and permitted by law, after proposed policies that have tribal implications have been drafted, HUD will notify the tribes of such proposed policies and will include a copy of the proposed policies with the notice. The notice shall designate the lead office in HUD Headquarters. The lead office in HUD Headquarters shall be responsible for such notification, unless it has delegated such responsibility to another office. HUD shall provide a specific deadline for tribal comments, which shall not be less than 60 days from the date of the notice. This timeline may be compressed in exigent situations. Nothing herein shall affect the deadlines established by Federal law or regulation with regard to comments in the course of the formal agency rulemaking process for the promulgation of Federal regulations.

    E. Tribal Response. Tribal officials may provide recommendations concerning proposed policies that have or that may have tribal implications to the lead office in HUD Headquarters no later than the deadline established in Part IV.D of this consultation policy. Such recommendations may be provided orally during meetings with HUD representatives or by written documents submitted to HUD representatives.

    F. Meetings. Tribes may facilitate regional meetings with HUD representatives to identify and address issues relevant to HUD policies that have tribal implications. HUD will convene at least one national tribal consultation meeting each year. To reduce costs and conserve resources to the greatest extent feasible, tribes and HUD will coordinate consultation meetings with other regularly scheduled meetings, such as multi-agency and association meetings.

    G. Reporting Mechanisms. In all cases when a tribe or tribes have been involved in the consultation process, HUD will maintain an Internet Web site or Web page to address the informational needs of tribes and tribal leaders. Such Web site or Web page will include relevant HUD documents and other relevant documents, including comments submitted by other tribes. HUD shall notify the tribes of the finalization of proposed policies that have tribal implications, and provide such policies to the tribes.

    H. Tribal Advisory Organizations, Committees, and Workgroups. HUD will work with tribal organizations, committees, or workgroups, when appropriate, to assist in facilitating involvement of tribes in decisionmaking and policy development. The work with tribal organizations, committees, and workgroups will be in coordination with, and not to the exclusion of, consultation with individual tribes on a government-to-government basis.

    I. Joint Federal/Tribal Workgroups.

    1. A workgroup may be established by HUD and tribes to address specific issues or to draft specific policies that have tribal implications. Tribal representation should be consistent with the established standard of geographically diverse small, medium, and large tribes, whenever possible.

    2. Alternate workgroup members may be appointed by written notification signed by the member. Such alternates shall possess the authority of the workgroup member to make decisions on their behalf, if such authority is so delegated to them in writing.

    3. The workgroup shall be chaired by at least one tribal workgroup member, selected by the tribal workgroup members, and one HUD representative.

    4. The workgroup may conduct its activities through various methods of communication, including in-person meetings, conference calls, and Internet-based meeting platforms. Workgroup members may be accompanied by other individuals for advice, as the members deem necessary.

    5. Whenever possible, workgroup products should be circulated to tribal leaders for review and comment.

    6. All final recommendations will be given serious consideration by HUD.

    V. Tribal Standing Committee

    On issues relating to tribal self-governance, tribal trust resources, or treaty and other rights, HUD will explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking. HUD may establish a standing committee, consisting of representatives of tribal governments, to consult on the appropriateness of using negotiated rulemaking procedures on particular matters. The procedures governing such a standing committee would be established through the mutual agreement of HUD and tribal governments.

    VI. Unfunded Mandates

    To the extent practicable and permitted by law, HUD shall not promulgate any regulation that is not required by statute, that has tribal implications, and that imposes substantial direct compliance costs on such communities, unless:

    A. Funds necessary to pay the direct costs incurred by the Indian tribal government in complying with the regulation are provided by the Federal Government; or

    B. HUD, prior to the formal promulgation of the regulation:

    1. Consulted with tribal officials early in the process of developing the proposed regulation;

    2. In a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget (OMB) a description of the extent of HUD's prior consultation with representatives of affected Indian tribal governments, a summary of the nature of their concerns, and the agency's position supporting the need to issue the regulation; and

    3. Makes available to the Director of OMB any written communications submitted to HUD by such Indian tribal governments.

    VII. Increasing Flexibility for Indian Tribal Waivers

    HUD shall review the processes under which Indian tribal governments apply for waivers of statutory and regulatory requirements, and take appropriate steps to streamline those processes.

    A. HUD shall, to the extent practicable and permitted by law, consider any application by an Indian tribal government for a waiver of statutory or regulatory requirements, in connection with any program administered by HUD, with a general view toward increasing opportunities for utilizing flexible policy approaches, at the Indian tribal level, in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.

    B. HUD shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 90 days of receipt of such application by HUD. HUD shall provide the applicant with timely written notice of the decision and, if the application for a waiver is not granted, the reasons for such denial.

    C. This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by HUD. Applicable civil rights statutes and regulations are not subject to waiver.

    VIII. Applicability of the Federal Advisory Committee Act

    The provisions of the Federal Advisory Committee Act (5 U.S.C. App., Pub. L. 92-463, section 2, Oct. 6, 1972, 86 Stat. 770) (FACA) do not apply to consultations undertaken pursuant to this policy. In accordance with section 204(b) of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, approved March 22, 1995, 109 Stat. 48), FACA is not applicable to consultations between the Federal Government and elected officers of Indian tribal governments (or their designated employees with authority to act on their behalf). As OMB stated in its guidelines implementing section 204(b):

    This exemption applies to meetings between Federal officials and employees and . . . tribal governments, acting through their elected officers, officials, employees, and Washington representatives, at which “views, information or advice” are exchanged concerning the implementation of intergovernmental responsibilities or administration, including those that arise explicitly or implicitly under statute, regulation, or Executive order.

    The scope of meetings covered by the exemption should be construed broadly to include any meetings called for any purpose relating to intergovernmental responsibilities or administration. Such meetings include, but are not limited to, meetings called for the purpose of seeking consensus; exchanging views, information, advice, and/or recommendations; or facilitating any other interaction relating to intergovernmental responsibilities or administration. (OMB Memorandum 95-20 (September 21, 1995), pp. 6-7, published at 60 FR 50651, 50653 (September 29, 1995)).

    IX. General Provisions

    This document has been adopted for the purpose of enhancing government-to-government relationships, communications, and mutual cooperation between the United States Department of Housing and Urban Development and tribes and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other persons. The provisions of FACA are not applicable to this policy. This document is effective on the date it is signed.

    Dated: April 4, 2016. Julián Castro, Secretary.
    [FR Doc. 2016-14896 Filed 6-22-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5912-N-01] 60-Day Notice of Proposed Information Collection Ginnie Mae Multiclass Securities Program Documents (Forms and Electronic Data Submissions) AGENCY:

    Office of the President of Government National Mortgage Association (Ginnie Mae), HUD.

    ACTION:

    Notice.

    SUMMARY:

    The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.

    DATES:

    Comments Due Date: August 22, 2016.

    ADDRESSES:

    Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna Guido., QDAM, Information Reports Management Officer, Department of Housing and Urban Development, 451 7th Street SW., L'Enfant Plaza Building, Room 4186, Washington, DC 20410; email: [email protected]; telephone (202) 708-2384. This is not a toll-free number. Copies of available documents submitted to OMB may be obtained from Ms. Guido.

    FOR FURTHER INFORMATION CONTACT:

    Shalei Choi, Ginnie Mae, 451 7th Street SW., Room B-133, Washington, DC 20410; email—[email protected]; telephone—(202) 475-7820; (this is not a toll-free number); the Ginnie Mae Web site at www.ginniemae.gov for other available information.

    SUPPLEMENTARY INFORMATION:

    The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).

    A. Overview of Information Collection

    Title of Proposal: Ginnie Mae Multiclass Securities Program Documents. (Forms and Electronic Data Submissions).

    OMB Control Number, if applicable: 2503-0030.

    Type of Information Collection: Extension of a currently approved.

    Description of the need for the information and proposed use: This information collection is required in connection with the operation of the Ginnie Mae Multiclass Securities program. Ginnie Mae's authority to guarantee multiclass instruments is contained in 306(g)(1) of the National Housing Act (“NHA”) (12 U.S.C. 1721(g)(1)), which authorizes Ginnie Mae to guarantee “securities * * * based on or backed by a trust or pool composed of mortgages. * * *” Multiclass securities are backed by Ginnie Mae securities, which are backed by government insured or guaranteed mortgages. Ginnie Mae's authority to operate a Multiclass Securities program is recognized in Section 3004 of the Omnibus Budget Reconciliation Act of 1993 (“OBRA”), which amended 306(g)(3) of the NHA (12 U.S.C. 1271(g)(3)) to provide Ginnie Mae with greater flexibility for the Multiclass Securities program regarding fee structure, contracting, industry consultation, and program implementation. Congress annually sets Ginnie Mae's commitment authority to guarantee mortgage-backed (“MBS”) pursuant to 306(G)(2) of the NHA (12 U.S.C. 1271(g)(2)). Since the multiclass are backed by Ginnie Mae Single Class MBS, Ginnie Mae has already guaranteed the collateral for the multiclass instruments.

    The Ginnie Mae Multiclass Securities Program consists of Ginnie Mae Real Estate Mortgage Investment Conduit (“REMIC”) securities, Stripped Mortgage-Backed Securities (“SMBS”), and Platinum securities. The Multiclass Securities program provides an important adjunct to Ginnie Mae's secondary mortgage market activities, allowing the private sector to combine and restructure cash flows from Ginnie Mae Single Class MBS into securities that meet unique investor requirements in connection with yield, maturity, and call-option protection. The intent of the Multiclass Securities program is to increase liquidity in the secondary mortgage market and to attract new sources of capital for federally insured or guaranteed loans. Under this program, Ginnie Mae guarantees, with the full faith and credit of the United States, the timely payment of principal and interest on Ginnie Mae REMIC, SMBS and Platinum securities.

    Agency form numbers, if applicable: Not applicable.

    Members of affected public: For-profit business (mortgage companies, thrifts, savings & loans, etc.).

    Estimation of the total number of hours needed to prepare the information collection including number of respondents, frequency of response, and hours of response:

    Type of information collection (Prepared by) Number of
  • potential
  • sponsors
  • Estimated
  • annual
  • frequency
  • per respondant
  • Total
  • annual
  • responses
  • Estimated
  • average
  • hourly
  • burden
  • Estimated
  • annual
  • burden
  • hours
  • REMIC Securities Pricing Letter Sponsor 18 8 144 0.5 72 Structured Term Sheet Sponsor 18 8 144 3 432 Trust (REMIC) Agreement Attorney for Sponsor 18 8 144 1 144 Trust Opinion Attorney for Sponsor 18 8 144 4 576 MX Trust Agreement Attorney for Sponsor 18 8 144 0.16 23.04 MX Trust Opinion Attorney for Sponsor 18 8 144 4 576 RR Certificate Attorney for Sponsor 18 8 144 0.08 11.52 Sponsor Agreement Attorney for Sponsor 18 8 144 0.05 7.2 Table of Contents Attorney for Sponsor 18 8 144 0.33 47.52 Issuance Statement Attorney for Sponsor 18 8 144 0.5 72 Tax Opinion Attorney for Sponsor 18 8 144 4 576 Transfer Affidavit Attorney for Sponsor 18 8 144 0.08 11.52 Supplemental Statement Attorney for Sponsor 18 0.25 4.5 1 4.5 Final Data Statements (attached to closing letter) Attorney for Sponsor 18 8 144 32 4608 Accountants' Closing Letter Accountant 18 8 144 8 1152 Accountants' OSC Letter Accountant 18 8 144 8 1152 Structuring Data Accountant 18 8 144 8 1152 Financial Statements Accountant 18 8 120 1 120 Principal and Interest Factor File Specifications Trustee 18 8 144 16 2304 Distribution Dates and Statement Trustee 18 8 144 0.42 60.48 Term Sheet Sponsor 18 8 144 2 288 New Issue File Layout Trustee 18 8 144 4 576 Flow of Funds Attorney for Trustee 18 8 144 0.16 23.04 Trustee Receipt Trustee Attorney 18 8 144 2 288 Subtotal 3292.5 14276.82 Platinum Securities Deposit Agreement Depositor 19 10 190 1 190 MBS Schedule Depositor 19 10 190 0.16 30.4 New Issue File Layout Depositor 19 10 190 4 760 Principal and Interest Factor File Specifications Trustee 19 10 190 16 3040 Subtotal 760 4020.4 Total Annual Responses 4052.5 Total Burden Hours 18297.22 Calculation of Burden Hours: Sponsors × Frequency per Year = Est. Annual Frequency. Est. Annual Frequency × Est. Average Completion Time = Est. Annual Burden Hours.
    B. Solicitation of Public Comment

    This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to:

    (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    Authority:

    Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 as amended.

    Dated: June 17, 2016. Gregory Keith, Acting Executive Vice President, Government National Mortgage Association.
    [FR Doc. 2016-14926 Filed 6-22-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5955-N-01] Paperwork Reduction Act—Rental Assistance Demonstration (RAD) Documents AGENCY:

    Office of the Assistant Secretary for Housing, HUD.

    ACTION:

    Notice.

    SUMMARY:

    The Rental Assistance Demonstration allows Public Housing, Moderate Rehabilitation (Mod Rehab), Rent Supplement (Rent Supp), and Rental Assistance Payment (RAP) properties to convert to long-term project-based Section 8 rental assistance contracts. The documents that subject to this notice are those used to process and complete the conversion process for Public Housing, Mod Rehab, Rent Supp, and RAP properties.

    On March 17, 2016, HUD published a 60-day notice announcing proposed changes to the existing Rental Assistance Demonstration (RAD) Documents and solicited public comments on the proposal.

    An emergency request has been made to the Office of Management and Budget (OMB) for a short term six-month extension of the existing RAD Documents so that the program can continue to operate while HUD reviews and responds to the comments received during the 60-day comment period, and completes the Paperwork Reduction Act submission process for amending and renewing the RAD Documents for a period of three years.

    DATES:

    Office of Management and Budget approval of the existing RAD Documents is set to expire on June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Stacy Harrison, Recapitalization Program Specialist, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-8000; telephone: 202-402-4234 (this is not a toll-free number). Hearing- or speech-impaired individuals may access these numbers through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    Dated: June 17, 2016. Genger Charles, General Deputy Assistant Secretary For Housing.
    [FR Doc. 2016-14924 Filed 6-22-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5951-N-01] Notice of Proposal To Establish a Tribal Intergovernmental Advisory Committee; Request for Comments on Committee Structure AGENCY:

    Office of Assistant Secretary for Public and Indian Housing, HUD.

    ACTION:

    Notice.

    SUMMARY:

    This notice solicits comments and recommendations regarding the establishment of a Tribal Intergovernmental Advisory Committee (TIAC), consisting of tribal representatives, to assist HUD further develop and maintain its Indian housing programs. The TIAC is intended to further communications between HUD and Federally recognized Indian tribes on HUD programs, make recommendations to HUD regarding current program regulations, provide advice in the development of HUD's American Indian and Alaska Native housing priorities, and encourage peer learning and capacity building among tribes and non-tribal entities. Consistent with HUD's Tribal Government-to-Government Consultation Policy, published elsewhere in this Federal Register, this notice solicits input on the structure of the TIAC.

    DATES:

    Comments on the proposed structure of the TIAC are due on or before: June 23, 2016.

    ADDRESSES:

    Interested persons are invited to submit comments on the structure of the Tribal Intergovernmental Advisory Committee. There are two methods for comments to be included in the docket for this rule. Additionally, all submissions must refer to the above docket number and title.

    1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of the General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-0500.

    2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages the electronic submission of comments. Electronic submission allows the maximum time to prepare and submit a nomination, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the www.regulations.gov Web site can be viewed by interested members of the public. Individuals should follow the instructions provided on that site to submit comments electronically.

    Note:

    To receive consideration, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule. No Facsimile Comments. Facsimile (FAX) comments are not acceptable.

    Public Inspection of Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the submissions must be scheduled by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of all submissions are available for inspection and downloading at www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Heidi J. Frechette, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4126, Washington, DC 20410-5000, telephone, (202) 402-7598 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION: I. Background

    Elsewhere in this Federal Register, HUD is publishing its updated Tribal Government-to-Government Consultation Policy. Consistent with Executive Order 13175, HUD's Tribal Government-to-Government Consultation Policy recognizes the right of Indian tribes to self-government, and supports tribal sovereignty and self-determination. It provides that HUD will engage in regular and meaningful consultation and collaboration with Indian tribal officials in the development of federal policies that have tribal implications. Executive Orders 13175 and 13647 also require Federal agencies to advance tribal self-governance and ensure that the rights of sovereign tribal governments are fully respected by conducting open and candid consultations.

    To further enhance consultation and collaboration with tribal governments, HUD is proposing to establish the TIAC. Several Federal agencies have established similar tribal advisory committees, including the Environmental Protection Agency, the Department of Health and Human Services, and the Department of the Treasury. These advisory committees convene periodically during the year to exchange information with agency staff, notify tribal leaders of activities or policies that could affect tribes, and provide guidance on consultation. Prior to HUD's establishment of the TIAC, this notice solicits input into the structure of the committee.

    II. Proposed Structure of the TIAC

    A. Purpose and Role of the TIAC. The purposes of the TIAC are:

    (1) To further facilitate intergovernmental communication between HUD and Federally recognized Indian tribal leaders on all HUD programs;

    (2) To make recommendations to HUD regarding current program regulations that may require revision, as well as suggest rulemaking methods to develop such changes;

    (3) To advise in the development of HUD's American Indian and Alaska Native (AIAN) housing priorities; and

    (4) To encourage peer learning and capacity building among tribes and non-tribal entities. The role of the TIAC is to provide recommendations and input to HUD and to provide a vehicle for regular and meaningful consultation and collaboration with tribal officials. HUD will maintain the responsibility to exercise program management, including the drafting of HUD notices and guidance.

    B. Charter and Protocols. The TIAC will develop its own ruling charter and protocols. HUD will provide staff for the TIAC to act as a liaison between TIAC and HUD officials, manage meeting logistics, and provide general support for TIAC activities.

    C. Meetings and Participation. Subject to availability of federal funding, the TIAC will meet in-person at least twice a year, to exchange information with HUD staff, discuss agency policies and activities that could affect tribes, and facilitate further consultation with tribal leaders. HUD will pay for these meetings, including the member's cost to travel to these meetings. The TIAC may meet on a more frequent basis by conference calls or other forms of communication. Additional in-person meetings may be scheduled at HUD's discretion. Participation at TIAC meetings will be limited to TIAC members or their alternates. Alternates must be designated in writing by the member's tribal government to act on their behalf. TIAC committee members may bring one additional staff person to the meeting at their expense. Meeting minutes will be available on the HUD Web site.

    D. TIAC Membership. The TIAC will be comprised of HUD representatives and tribal delegates from across the country. The TIAC will be composed of up to four HUD officials and up to eight tribal representatives. One tribal member will represent each of the six HUD ONAP regions. The two remaining tribal members will serve at-large. Only duly elected or appointed tribal leaders may serve as tribal members or alternates of the TIAC. One of the tribal members will be selected by the committee to serve as the chairperson.

    The Secretary shall appoint the members of the TIAC. TIAC tribal delegates will serve a term of 2 years. To ensure consistency between tribal terms, delegates will have a staggered term of appointment. In order to establish a staggered term of appointment, half of the tribal members appointed in the inaugural year of the TIAC will serve 2 years and the other half will serve 3 years. Delegates must designate their preference to serve 2 or 3 years; however, HUD will make the final determination on which members will serve for 3 years. Once these members complete these initial terms, future tribal members will serve terms that last 2 years.

    E. The establishment of the TIAC is intended to enhance government-to-government relationships, communications, and mutual cooperation between HUD and tribes and is not intended to, and will not, create any right to administrative or judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other persons.

    III. Request for Nominations

    Once a general structure for the TIAC is established, HUD intends to publish a request for nominations for the TIAC in the Federal Register and will appoint the members of the TIAC from the pool of nominees it receives under this request. HUD will announce its final selections for TIAC membership in a subsequent Federal Register notice. Members will be selected based on proven experience and engagement in AIAN housing and community development matters. At-large members will be selected based on their ability to represent specific interests that might not be represented by the selected regional members.

    Dated: June 20, 2016. Lourdes Castro Ramirez, Principal Deputy Assistant Secretary for Public and Indian Housing.
    [FR Doc. 2016-14895 Filed 6-22-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2014-0018; 96300-1671-0000-R4] Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Seventeenth Regular Meeting; Provisional Agenda; Announcement of Public Meeting AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice.

    SUMMARY:

    The United States, as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), will attend the seventeenth regular meeting of the Conference of the Parties to CITES (CoP17) in Johannesburg, South Africa, September 24 to October 5, 2016. Currently, the United States is developing its negotiating positions on proposed resolutions, decisions, and amendments to the CITES Appendices (species proposals), as well as other agenda items that have been submitted by other Parties, the permanent CITES committees, and the CITES Secretariat for consideration at CoP17. With this notice we announce the provisional agenda for CoP17, solicit your comments on the items on the provisional agenda, and announce a public meeting to discuss the items on the provisional agenda.

    DATES:

    Public meeting: The public meeting will be held on July 19, 2016, at 1:00 p.m.

    Comment submission: In developing the U.S. negotiating positions on species proposals and proposed resolutions, decisions, and other agenda items submitted by other Parties, the permanent CITES committees, and the CITES Secretariat for consideration at CoP17, we will consider written information and comments you submit if we receive them by August 8, 2016.

    ADDRESSES:

    Public Meeting

    The public meeting will be held in the South Interior Building Auditorium at 1951 Constitution Avenue NW., Washington, DC. Directions to the building can be obtained by contacting the Division of Management Authority (see FOR FURTHER INFORMATION CONTACT). For more information about the meeting, see “Announcement of Public Meeting” under SUPPLEMENTARY INFORMATION.

    Comment Submission

    You may submit comments pertaining to items on the provisional agenda for discussion at CoP17 by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on Docket No. FWS-HQ-IA-2014-0018 (the docket number for this notice).

    U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-HQ-IA-2014-0018; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS BPHC; Falls Church, VA 22041.

    We will not consider comments sent by email or fax or to an address not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation, will be available for public inspection on http://www.regulations.gov, or by appointment, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays, at: U.S. Fish and Wildlife Service Headquarters, Division of Management Authority, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703-358-2095.

    FOR FURTHER INFORMATION CONTACT:

    For information pertaining to resolutions, decisions, and other agenda items, contact: Craig Hoover, Chief, Division of Management Authority; telephone 703-358-2095; facsimile 703-358-2298. For information pertaining to species proposals, contact: Rosemarie Gnam, Chief, Division of Scientific Authority; telephone 703-358-1708; fascsimile 703-358-2276.

    SUPPLEMENTARY INFORMATION:

    Background

    The Convention on International Trade in Endangered Species of Wild Fauna and Flora, hereinafter referred to as CITES or the Convention, is an international treaty designed to control and regulate international trade in certain animal and plant species that are now or potentially may become threatened with extinction. These species are listed in Appendices to CITES, which are available on the CITES Secretariat's Web site at http://www.cites.org/eng/app/index.php.

    Currently 181 countries and the European Union have ratified, accepted, approved, or acceded to CITES; these 182 entities are known as Parties. The Convention calls for regular biennial meetings of the Conference of the Parties, unless the Conference of the Parties decides otherwise. At these meetings, the Parties review the implementation of CITES, make provisions enabling the CITES Secretariat in Switzerland to carry out its functions, consider amendments to the lists of species in Appendices I and II, consider reports presented by the Secretariat and the permanent CITES committees (Standing, Animals, and Plants Committees), and make recommendations for the improved effectiveness of CITES. Any country that is a Party to CITES may propose amendments to Appendices I and II, resolutions, decisions, and other agenda items for consideration by all of the Parties at the meetings.

    This is our fifth in a series of Federal Register notices that, together with the announced public meeting, provide you with an opportunity to participate in the development of U.S. negotiating positions for the seventeenth regular meeting of the Conference of the Parties to CITES (CoP17). We published our first CoP17-related Federal Register notice on June 27, 2014 (79 FR 36550), in which we requested information and recommendations on species proposals for the United States to consider submitting for consideration at CoP17. In that notice, we also described the U.S. approach to preparations for CoP17. We published our second such Federal Register notice on May 11, 2015 (80 FR 26948), in which we requested information and recommendations on proposed resolutions, decisions, and other agenda items for the United States to consider submitting for consideration at CoP17, and provided preliminary information on how to request approved observer status for non-governmental organizations that wish to attend the meeting. In our third CoP17-related Federal Register notice, published on August 26, 2015 (80 FR 51830), we requested public comments and information on species proposals that the United States is considering submitting for consideration at CoP17; and in our fourth such notice, published on December 4, 2015 (80 FR 75873), we requested public comments and information on proposed resolutions, decisions, and other agenda items that the United States was considering submitting for consideration at CoP17, and provided more information on how to request approved observer status for non-governmental organizations that wish to attend the meeting. A link to the complete list of those Federal Register notices, along with information on U.S. preparations for CoP17, can be found at http://www.fws.gov/international/cites/cop17. You may obtain additional information on those Federal Register notices from the following sources: For information on proposed resolutions, decisions, and other agenda items, contact the U.S. Fish and Wildlife Service, Division of Management Authority, 5275 Leesburg Pike, MS-IA, Falls Church, VA 22041; and for information on species proposals, contact the Division of Scientific Authority, 5275 Leesburg Pike, MS-IA, Falls Church, VA 22041. Our regulations governing this public process are found in 50 CFR 23.87.

    On April 26 and 27, 2016, the United States submitted to the CITES Secretariat, for consideration at CoP17, its species proposals, proposed resolutions, proposed decisions, and other agenda items. These documents are available on our Web site at http://www.fws.gov/international/cites/cop17.

    Announcement of Provisional Agenda for CoP17

    The provisional agenda for CoP17 is currently available on the CITES Secretariat's Web site at http://www.cites.org/eng/cop/17/doc/index.php. The working documents associated with the items on the provisional agenda, including proposed resolutions, proposed decisions, and discussion documents, are also available on the Secretariat's Web site. To view the working document associated with a particular agenda item, access the provisional agenda at the above Web site, locate the particular agenda item, and click on the document link for that agenda item in the column entitled “Document.” Finally, the species proposals that will be considered at CoP17 are available on the Secretariat's Web site. Proposals for amendment of Appendices I and II can be accessed at the web address given above. We look forward to receiving your comments on the items on the provisional agenda.

    Announcement of Public Meeting

    We will hold a public meeting to discuss the items on the provisional agenda for CoP17. The public meeting will be held on the date specified in the DATES section and at the address specified in the ADDRESSES section. You can obtain directions to the building by contacting the Division of Management Authority (see the FOR FURTHER INFORMATION CONTACT section above). Please note that the South Interior Building Auditorium is accessible to the handicapped and all persons planning to attend the meeting will be required to present photo identification when entering the building. Persons who plan to attend the meeting and who require interpretation for the hearing impaired must notify the Division of Management Authority by July 5, 2016. For those who cannot attend the public meeting but are interested in watching via live stream please go to our Web site http://www.fws.gov/international/cites/cop17/index.html, and look for the link to the live feed.

    Future Actions

    Through an additional notice and Web site posting in advance of CoP17, we will inform you about tentative U.S. negotiating positions on species proposals, proposed resolutions, proposed decisions, and agenda items that were submitted by other Parties, the permanent CITES committees, and the CITES Secretariat for consideration at CoP17.

    Authority:

    The primary author of this notice is Clifton A. Horton, Division of Management Authority; under the authority of the U.S. Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: June 9, 2016. Stephen Guertin, Acting Director, Fish and Wildlife Service.
    [FR Doc. 2016-14870 Filed 6-22-16; 8:45 am] BILLING CODE 4310-55-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [FWS-R7-ES-2016-N092; FF07CAMM00-FX-FXFR133707REG04] Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization for Pacific Walruses in Alaska and Associated Federal Waters AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of application and proposed incidental harassment authorization; availability of draft environmental assessment; request for comments.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), in response to a request under the Marine Mammal Protection Act of 1972 (MMPA), as amended, from Quintillion Subsea Operation, LLC, propose to authorize the incidental taking by harassment of small numbers of Pacific walruses from July 15-November 15, 2016. The area specified for inclusion in the proposed authorization includes Federal waters of the northern Bering, Chukchi, and Southern Beaufort Seas, the marine waters of the State of Alaska, and coastal land adjacent to Nome, Kotzebue, Point Hope, Wainwright, Barrow, and Oliktok Point, as shown in Figure 1. The applicant has requested this authorization for its planned cable-laying activities. We anticipate no take by injury or death and include none in this proposed authorization, which if finalized, will be for take by harassment only.

    DATES:

    We will consider comments we receive on or before July 25, 2016.

    ADDRESSES:

    Document availability: The incidental harassment authorization request, associated draft environmental assessment, and literature cited, are available for viewing at http://www.fws.gov/alaska/fisheries/mmm/iha.htm.

    Comments submission: You may submit comments on the proposed incidental harassment authorization and associated draft environmental assessment by one of the following methods:

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Kimberly Klein, U.S. Fish and Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503;

    Fax: 907-786-3816, Attn: Kimberly Klein; or

    Email comments to: [email protected]

    Please indicate whether your comments apply to the proposed incidental harassment authorization or the draft environmental assessment. We will post all hardcopy comments on http://www.fws.gov/alaska/fisheries/mmm/iha.htm. See Request for Public Comments below for more information.

    FOR FURTHER INFORMATION CONTACT:

    Copies of the application, the list of references used in the notice, and other supporting materials may be downloaded from the Web at: http://www.fws.gov/alaska/fisheries/mmm/iha.htm. You may also contact Kimberly Klein, by mail at Marine Mammals Management, U.S. Fish and Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503; by email at [email protected]; or by telephone at 1-800-362-5148, to request documents.

    SUPPLEMENTARY INFORMATION:

    In response to a request from Quintillion Subsea Operation, LLC (Quintillion or “the applicant”), we propose to authorize the incidental taking by harassment of small numbers of Pacific walruses from July 15-November 15, 2016, under section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972 (MMPA), as amended. Quintillion has requested this authorization for its planned cable-laying activities in Federal waters of the northern Bering, Chukchi, and southwestern Beaufort Seas, the marine waters of the State of Alaska, and coastal land adjacent to Nome, Kotzebue, Point Hope, Wainwright, Barrow, and Oliktok Point, as specified in Figure 1. We anticipate no take by injury or death and include none in this proposed authorization, which, if finalized, would be for take by harassment only.

    Executive Summary Why We Need To Publish a Draft Incidental Harassment Authorization (IHA)

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 et seq.) directs the Service to allow, upon request, and for periods of not more than 1 year, the incidental, but not intentional take of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical area if certain findings are made regarding the effects of the take. The Service was petitioned by Quintillion on October 29, 2015, to provide authorization for the incidental take by harassment of Pacific walruses (Odobenus rosmarus divergens) and polar bears (Ursus maritimus) for a cable-laying project, which is intended to improve broadband internet service in northern Alaska. After receiving comments on the initial application, Quintillion made revisions and submitted an updated IHA application on February 3, 2016. Quintillion subsequently withdrew its application for incidental take of polar bears on April 25, 2016, citing several factors, including changes to the project that reduce the already-low probability of encounters with polar bears. This document announces and explains the Service's proposed authorization of incidental take of small numbers of Pacific walruses from Quintillion's cable-laying project in the State of Alaska and associated Federal waters from July 15-November 15, 2016.

    The Effect of This Authorization

    The MMPA allows the Service to authorize, upon request, the incidental take of small numbers of marine mammals as part of a specified activity within a specified geographic region. In this case, the Service may authorize the incidental, but not intentional, take by harassment of small numbers of Pacific walruses by Quintillion during the specified cable-laying project activities if we find that such harassment during each period will:

    • Have no more than a “negligible impact” on the species or stock of Pacific walrus; and

    • Not have an “unmitigable adverse impact” on the availability of the species or stock for taking for subsistence uses.

    The Service may stipulate the permissible methods of taking and require mitigation, monitoring, and reporting of such takings, which are meant to reduce or minimize negative impacts to the Pacific walrus.

    Request for Public Comments

    We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed authorization. We particularly seek comments concerning:

    • Whether the proposed authorization, including the proposed activities, will have a negligible impact on the species or stock of Pacific walrus.

    • Whether the proposed authorization will ensure that an unmitigable adverse impact on the availability of Pacific walruses for subsistence taking does not occur.

    • Whether there are any additional provisions we may wish to consider for ensuring the conservation of the Pacific walrus.

    You may submit your comments and materials concerning this proposed authorization by one of the methods listed in ADDRESSES.

    If you submit a comment via [email protected], your entire comment—including any personal identifying information—may be available to the public. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.fws.gov/alaska/fisheries/mmm/iha.htm.

    Background

    Section 101(a)(5)(D) of the MMPA, as amended (16 U.S.C. 1371(a)(5)(D)), authorizes the Secretary of the Interior (the Secretary) to allow, upon request of a citizen and subject to such conditions as the Secretary may specify, the incidental but not intentional taking by harassment of small numbers of marine mammals of a species or population stock by such citizens who are engaging in a specified activity within a specified region. Incidental taking may be authorized only if the Secretary finds that such take during each period concerned will have a negligible impact on such species or stock, and will not have an unmitigable adverse impact on the availability of such species or stock for subsistence use.

    Section 101(a)(5)(D) of the MMPA establishes a process by which citizens of the United States can apply for an authorization for incidental take of small numbers of marine mammals where the take will be limited to harassment during a period of not more than 1 year. We refer to these incidental harassment authorizations as “IHAs.”

    The term “take,” as defined by the MMPA, means to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal. Harassment, as defined by the MMPA, means any act of pursuit, torment, or annoyance which: (i) Has the potential to injure a marine mammal or marine mammal stock in the wild (the MMPA calls this “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 (the MMPA calls this “Level B harassment”).

    The terms “small numbers,” “negligible impact,” and “unmitigable adverse impact” are defined in 50 CFR 18.27, the Service's regulations governing take of small numbers of marine mammals incidental to specified activities. “Small numbers” is defined as a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock. However, we do not rely on that definition here, as it conflates the terms “small numbers” and “negligible impact,” which we recognize as two separate and distinct requirements. Instead, in our small numbers determination, we evaluate whether the number of marine mammals likely to be taken is small relative to the size of the overall population. “Negligible impact” is defined 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. “Unmitigable adverse impact” is defined as an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    In order to issue an IHA, the Service must set forth the following: (1) Permissible methods of taking; (2) means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (3) requirements pertaining to the monitoring and reporting of such takings. Habitat areas of significance for Pacific walruses in the project area include (a) marginal sea-ice zones, (b) areas with consistent polynyas in consolidated pack ice or multiyear ice, (c) areas of high benthic productivity, (d) areas where nutrient-rich ocean currents converge, and (e) terrestrial haulouts. The proposed activities will not be conducted in the vicinity of sea ice, eliminating potential impacts to the first two habitat types. Areas of high benthic productivity and convergence of nutrient-rich currents are important because they generate important feeding areas. The Service, therefore, must specify avoidance and minimization measures for effecting the least practicable impact of the proposed action on important feeding areas and terrestrial haulouts.

    Summary of Request

    On October 29, 2015, Quintillion submitted a request to the Service for the nonlethal taking by harassment of Pacific walruses and polar bears that may occur incidental to a cable-laying project. Quintillion is proposing to install 1,904 kilometers (km) (1,183 miles (mi)) of submerged fiber optic cable on the seafloor of the Bering, Chukchi, and Beaufort Seas off the northern and western coasts of Alaska during the open-water season of 2016. The Quintillion cable project or “the proposed action” consists of a main trunk line and six branching lines with links to the existing terrestrial networks of six rural Alaskan communities. An amendment with updated information was received in February 2016, and Quintillion withdrew its request for incidental take of polar bears on April 25, 2016. A complete copy of Quintillion's request and supporting documents may be obtained as specified above in ADDRESSES.

    The project is most likely to encounter Pacific walruses in the Chukchi Sea in August and September. The cable-laying activities are proposed for the northern Bering Sea after mid-July when most animals have moved either northward into the Chukchi Sea or southward to Bristol Bay, where no cable-laying activities are proposed. The Southern Beaufort Sea is outside of the normal range of the species and is, therefore, considered “extralimital” to the normal range of the species, and encounters are unlikely. When Pacific walruses are encountered, they may react to the presence of Quintillion's vessels or the sounds of the cable-laying activities. Thrusters, echo sounders, and beacon transceivers that will be used by the cable-laying ships during this project may generate noise levels capable of causing acoustic harassment to Pacific walruses in the local area.

    Quintillion is requesting incidental take by Level B harassment of Pacific walruses from disruption of behavioral patterns and exposure to sound levels exceeding 160 decibels (dB; all dB levels given herein are re: 1 µPa). The number of actual takes from sound exposure will depend upon the number of individuals occurring within the 160-dB ensonification zone. The “ensonification zone” is the area surrounding a sound source where received sound levels may exceed the specified threshold. Quintillion is not requesting authorization for take by Level A harassment. Quintillion does not believe that Level A take will occur because the project is not expected to generate noise levels at or above the level considered by the Service to have the potential to cause injury. Quintillion estimates that the project will generate sound levels no greater than 180 dBrms (dBrms refers to the root-mean-squared dB level, the square root of the average of the squared sound pressure level over some duration—typically 1 second). Pursuant to conclusions reached by the National Oceanic and Atmospheric Administration (NOAA), the Service considers sound levels above 190 dBrms to have the potential to cause injury to Pacific walruses and result in take due to Level A harassment (e.g., NMFS 1998; HESS 1999).

    Prior to issuing an IHA in response to this request, the Service must evaluate the level of activities described in the application, the associated potential impacts to Pacific walruses, and the potential effects on the availability of the species for subsistence use. The Service is tasked with analyzing the impact that the proposed lawful activities will have on Pacific walruses during normal operating procedures.

    Description of the Specified Activities and Geographic Area

    The planned Quintillion cable project will occur in the marine waters of the northern Bering, Chukchi, and southwestern Beaufort Seas, in waters of the State of Alaska, and on coastal land of Alaska (Figure 1). The main trunk line is 1,317 km (818 mi) in length. The branching lines range between 27 km (17 mi) and 233 km (145 mi) in length and extend between the trunk line and the coastal communities of Nome, Kotzebue, Point Hope, Wainwright, and Barrow. Another branching line will extend to Oliktok Point, located 260 km (162 mi) southeast of Barrow. This line will connect over land with the community of Nuiqsut and the Prudhoe Bay industrial center. Additional project details are available in Quintillion's IHA application, available online at http://www.fws.gov/alaska/fisheries/mmm/iha.htm.

    EN23JN16.015

    All activities associated with the IHA request, including mobilization, preliminary work, cable laying, post-burial work, and demobilization of survey and support crews are planned to occur June 1-October 31, 2016. Operations in the Bering Sea will begin near Nome in mid-June and follow the receding sea ice northward into the northern Bering Sea. Work in the Bering Sea between Nome and the Bering Strait is proposed to occur from mid-July to mid-August 2016. Work in the open waters of the Chukchi Sea north of the Bering Strait and in the Beaufort Sea will be done in August and September. Nearshore cable landing work near Oliktok Point, Barrow, Wainwright, and Point Hope will begin in July and will continue in August-October while work is also being conducted offshore. Work may be conducted day or night. The operations will take approximately 150 days within the work window.

    Before cable is laid, a pre-lay grapnel run will be completed along the proposed cable route where burial is required. A grapnel is a small anchor with three or more flukes, used for grappling or dragging. The objective of the operation is the identification and clearance of any seabed debris. The grapnel run will employ towed grapnels and will be conducted by a tugboat. Any debris recovered during these operations will be discharged ashore and disposed of in accordance with applicable regulations. If any debris cannot be recovered, then a local reroute will be planned to avoid the debris.

    The cable-laying operations will be conducted from the Cable Ship (C/S) Ile de Brehat and/or its sister ships (Ile de Sein, Ile de Batz). The three ships may operate simultaneously in different locations. All three ships are 140 meters (m) or 460 feet (ft) in length and 23 m (77 ft) in breadth, with berths for a crew of 70. Each ship is propelled by two 4,000-kilowatt (kW) fixed-pitch propellers. Dynamic positioning is maintained by two 1,500-kW bow thrusters, two 1,500-kW aft thrusters, and one 1,500-kW fore thruster. Sound source measurements have not been conducted specific to the C/S Ile de Brehat, but acoustic studies for similar vessels have shown thruster noise measurements of 171-180 dBrms at 1 m (Nedwell et al. 2003; Samsung 2009; Deepwater Wind 2012).

    Support vessels include a tug and barge that will be primarily used for nearshore operations on the branch lines. Submerged cable components will include the cable, interconnecting hardware, and repeaters. The cable will be placed on the seafloor surface or will be buried. Burial method will depend on bottom substrate, water depth, and location. Echo sounders, transceivers, and transponders will be used to monitor the water depth and the position of equipment on the seafloor.

    Where cable is to be laid on the seafloor surface, the cable ships will install the cable as close as possible to the planned route with the correct amount of cable slack to enable the cable to conform to the contours of the seabed without loops or suspensions. A slack plan will be developed that uses direct bathymetric data and a catenary modeling system to control the ship and the cable payout speeds to ensure the cable is accurately placed. A dive team and the tug and barge will lay cable in nearshore waters too shallow for the C/S Ile de Brehat.

    Burial methods will depend on water depth. In depths greater than 12 m (39.4 ft), the cable will be buried using a burial plough pulled by the cable ship. The plough is pulled by a tow wire as cable is fed through a depressor that pushes it into a trench. Burial depth is controlled by adjusting the front skids. The normal tow speed is approximately 600 meters per hour (m/hr) (0.37 miles per hour (mph) or 0.32 knots (kn)). During cable laying, the cable ship will not be able to alter course or speed to avoid marine mammals, but the slow speed and constant sound production will provide ample warning, allowing Pacific walruses to retreat before they are close enough to be harmed.

    In water depths less than 12 m (39.4 ft), burial will be by a tug-pulled jet sled, tracked Remotely Operated Vehicle (ROV), or by a dive team using hand-jetting equipment, subject to seabed conditions in the area. Burial depths will generally be 2-3 m (6.6-9.8 ft). Nearer to shore, where seasonal ice scouring occurs, the cable will be floated on the surface and then pulled through an existing horizontal directionally drilled bore pipe to the beach manhole where it will be spliced to the terrestrial cable. The floated cable portion will then be lowered to the seabed by divers and buried (using a burial method as described above) from the bore pipe seaward.

    While it is expected that the cable trenches will fill in by natural current processes, it is important to ensure that cable splices and interconnections are fully buried, and that there are no plough skips at locations where burial is critical. To ensure proper burial at critical locations, the ROV will be used to conduct post-lay inspection and burial along an estimated 10 km (6.2 mi) of the burial route.

    Description of Marine Mammals in the Area of Specified Activity

    The stock of Pacific walruses is composed of a single panmictic population inhabiting the shallow continental shelf waters of the Bering and Chukchi Seas (Lingqvist et al. 2009; Berta and Churchill 2012). The size of the stock has never been known with certainty. In 2006, the United States and Russia conducted a joint aerial survey in the pack ice of the Bering Sea using thermal imaging systems and satellite transmitters to count Pacific walruses in the water and hauled out on sea ice. The number within the surveyed area was estimated at 129,000 with 95 percent confidence limits of 55,000 to 507,000 individuals. This estimate is considered a minimum: Weather conditions forced termination of the survey before large areas were surveyed (Speckman et al. 2011).

    Distribution is largely influenced by the extent of the seasonal pack ice and prey densities. From April to June, most of the population migrates from the Bering Sea through the Bering Strait and into the Chukchi Sea. Pacific walruses tend to migrate into the Chukchi Sea along lead systems that develop in the sea ice. During the open-water season, Pacific walruses are closely associated with the edge of the seasonal pack ice from Russian waters to areas west of Point Barrow, Alaska. Most of these animals remain in the Chukchi Sea throughout the summer months, but a few occasionally range into the Beaufort Sea. Oil and gas industry observers reported 35 sightings east of Point Barrow (~156.5° W.) between 1995 and 2012 (Kalxdorff and Bridges 2003; AES Alaska 2015; USFWS unpublished data).

    The pack ice usually advances rapidly southward in late fall, and most Pacific walruses return to the Bering Sea by mid- to late-November. During the winter breeding season, three concentration areas form in the Bering Sea where open leads, polynyas, or thin ice occur (Fay et al. 1984; Garlich-Miller et al. 2011). While the specific location of these groups varies annually depending upon the sea-ice extent, one group generally occurs near the Gulf of Anadyr, another south of St. Lawrence Island, and a third in the southeastern Bering Sea south of Nunivak Island.

    Pacific walruses are usually found in waters of 100 m (328 ft) or less although they are capable of diving to greater depths. They use sea ice as a resting platform over feeding areas, as well as for giving birth, nursing, passive transportation, and avoiding predators (Fay 1982; Ray et al. 2006). Native hunters have reported incidences of Pacific walruses preying on seals; other items such as fish and birds are occasionally taken (Sheffield and Grebmeier 2009; Seymour et al. 2014), but benthic invertebrates are the primary food source. Foraging trips may last for several days, during which the animals dive to the bottom nearly continuously. Most foraging dives last 5-10 minutes, with surface intervals of 1-2 minutes. The disturbance of the sea floor by foraging Pacific walruses releases nutrients into the water column, provides food for scavenger organisms, contributes to the diversity of the benthic community, and is thought to have a significant influence on the ecology of the Bering and Chukchi Seas (Ray et al. 2006).

    Bivalve clams of the genera Macoma, Serripes, and Mya appear to be the most important prey based on both stomach contents and prey availability at Pacific walrus feeding areas (Sheffield and Grebmeier 2009). Feder et al. (1989) found summer and fall feeding areas in the Chukchi Sea to be dominated by muddy substrates supporting high biomasses of Macoma calcarea. Hanna Shoal is the most important foraging area for Pacific walruses (Brueggeman et al. 1990, 1991; MacCracken 2012; Jay et al. 2012). Jay et al. (2012) tracked radio-tagged individuals to estimate areas of foraging and occupancy in the Chukchi Sea during June-November of 2008-2011 (years when sea ice was sparse over the continental shelf) and observed high use areas in the relatively shallow waters of Hanna Shoal. The unique bathymetric and current patterns at Hanna Shoal deposit nutrients from the Bering Sea on the ocean floor where they feed a rich benthic ecosystem. Based on this information, the Service designated 24,600 km2 (9,500 mi2) of the Chukchi Sea as the Hanna Shoal Walrus Use Area (HSWUA).

    Pacific walruses are social and gregarious animals. They travel and haul out onto ice or land in groups, and spend approximately 20-30 percent of their time out of the water. Hauled-out animals tend to be in close physical contact. Young animals often lie on top of adults. The size of the hauled-out groups can range from a few animals up to several thousand individuals. The largest aggregations occur at land haulouts.

    Use of terrestrial haulouts in the eastern Chukchi Sea by large numbers has been common during recent years of low summer sea ice, when the edge of the pack ice has moved north into the deep Arctic Basin where Pacific walruses cannot feed (due to too great a water depth). In recent years, the barrier islands north of Point Lay, Alaska, have held large aggregations of up to 20,000-40,000 animals in late summer and fall (Monson et al. 2013). Pacific walruses hauled out near Point Lay have travelled to Hanna Shoal during feeding bouts.

    Polar bears are known to prey on Pacific walruses, particularly calves; killer whales (Orcinus orca) have been known to take all age classes (Frost et al. 1992; Melnikov and Zagrebin 2005). Predation rates are unknown but are thought to be highest near terrestrial haulout sites where large aggregations can be found. Few observations exist of predation upon Pacific walruses farther offshore.

    Pacific walruses have been hunted for food and other purposes by coastal-dwelling Alaska Natives and Native peoples of Chukotka, Russian Federation for thousands of years. Combined harvest mortality from 2000-2014 for the United States and Russian Federation averaged 3,207 per year (USFWS unpublished data). This mortality estimate includes corrections for under-reported harvest (U.S. only) and struck and lost animals. Harvest has been declining by about 3 percent per year since 2000 and was exceptionally low in the United States in 2012-2014. Resource managers in Russia have concluded that the population has declined and have reduced harvest quotas in recent years accordingly, based in part on the lower abundance estimate generated from the 2006 survey (Kochnev 2004; Kochnev 2005; Kochnev 2010, pers. comm.; Litovka 2015, pers. comm.). The quota in 2000 was 3000 animals; by 2010, it was just 1300 (Shadbolt et al. 2014). However, Russian hunters have never reached the quota (Litovka 2015, pers. comm.).

    Detailed information on the biology and status of the species, including a revised stock assessment report announced on April 21, 2014 (79 FR 22154), is available at http://www.fws.gov/alaska/fisheries/mmm/.

    Potential Impacts of the Activities on Pacific Walruses

    Proposed cable-laying activities in the Chukchi Sea may encounter Pacific walruses, but encounters in the Beaufort and Bering Seas are unlikely. The Southern Beaufort Sea east of 153° W. is extralimital; encounters are unlikely there. Project activities are scheduled to occur in the northern Bering Sea after mid-July, when most Pacific walruses have moved north into the Chukchi Sea or south to Bristol Bay. No project activities are planned in Bristol Bay or in the Bering Sea south of Nome.

    Proposed activities in the Chukchi Sea in July-August have the greatest degree of overlap with areas used by Pacific walruses. Project activities occurring in these areas in September-November may also encounter Pacific walruses. Noise and vessel activities associated with the project have the potential to disrupt normal behavioral patterns including migration, nursing, and feeding. Use of thrusters, echo sounders, and beacon transceivers could generate noise levels capable of causing acoustic harassment near the project area and are discussed in the following section.

    Noise

    Pacific walruses hear sounds both in air and in water. Kastelein et al. (1996) tested the in-air hearing of one individual from 125 hertz (Hz) to 8 kilohertz (kHz) and determined the animal could hear all frequency ranges tested, but the best sensitivity was 250 Hz-2 kHz. Kastelein et al. (2002) tested underwater hearing and determined that range of hearing was 1 kHz-12 kHz with greatest sensitivity at 12 kHz. The small sample size of one animal warrants caution; other pinnipeds can hear up to 40 kHz. Many of the noise sources generated by the Quintillion cable project are likely to be audible to Pacific walruses. Exposure to high levels of underwater sound may cause hearing loss in nearby animals and disturbance of animals at greater distances. Sound attenuates in air more rapidly than in water; airborne sound levels likely to be produced by the proposed action are unlikely to cause hearing damage unless animals are very close to the sound source.

    Acoustic sources operating during cable laying will include thrusters, plows, jets, ROVs, echo sounders, and positioning beacons. Of these, the dominant source of radiated underwater noise at frequencies less than 200 Hz is propeller cavitation from the vessel pr