Federal Register Vol. 81, No.126,

Federal Register Volume 81, Issue 126 (June 30, 2016)

Page Range42453-42982
FR Document

81_FR_126
Current View
Page and SubjectPDF
81 FR 42475 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
81 FR 42743 - Sunshine Act Meeting; National Science BoardPDF
81 FR 42542 - Standards of Performance for New Stationary SourcesPDF
81 FR 42503 - Civil Monetary Penalty Adjustment and TablePDF
81 FR 42759 - Sunshine Act MeetingPDF
81 FR 42726 - Sunshine Act MeetingPDF
81 FR 42631 - International Standard-Setting ActivitiesPDF
81 FR 42648 - Foreign-Trade Zone 158-Tupelo, Mississippi; Notification of Proposed Production Activity; Bauhaus Furniture Group, LLC; H.M. Richards Company, Inc.; Lane Home Furniture; Morgan Fabrics Corporation (Upholstered Furniture)PDF
81 FR 42649 - Foreign-Trade Zone 158-Tupelo, Mississippi; Notification of Proposed Production Activity; Southern Motion, Inc.; Subzone 158G (Upholstered Furniture); Pontotoc and Baldwyn, MississippiPDF
81 FR 42650 - Foreign-Trade Zone 18-San Jose, California; Application for Subzone Expansion; Subzone 18E; Space Systems/Loral, LLC; Palo Alto, Menlo Park and Mountain View, CaliforniaPDF
81 FR 42649 - Foreign-Trade Zone (FTZ) 44-Morris County, New Jersey; Notification of Proposed Production Activity; Givaudan Flavors Corporation (Flavor Products); East Hanover, New JerseyPDF
81 FR 42649 - Foreign-Trade Zone (FTZ) 230-Piedmont Triad Area, North Carolina; Authorization of Production Activity; United Chemi-Con, Inc. (Aluminum Electrolytic Capacitors); Lansing, North CarolinaPDF
81 FR 42587 - Approval and Promulgation of Implementation Plans; Oklahoma; Revisions to Major New Source Review PermittingPDF
81 FR 42597 - Air Plan Approval; Ohio; Removal of Stage II Gasoline Vapor Recovery RequirementsPDF
81 FR 42702 - Product Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate UsesPDF
81 FR 42704 - Plant-Incorporated Protectants: Proposed Modification of Registration Procedures for Plant-Incorporated Protectants in Breeding Line Intermediates; Notice of AvailabilityPDF
81 FR 42543 - Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate); Exemption From the Requirement of a TolerancePDF
81 FR 42784 - Advisory Committee on International Economic Policy; Notice of Open MeetingPDF
81 FR 42507 - Safety Zones; Marine Events Held in the Sector Long Island Sound Captain of the Port ZonePDF
81 FR 42517 - Safety Zone, Pamlico Sound; Ocracoke, NCPDF
81 FR 42629 - Codex Alimentarius Commission: Meeting of the Codex Committee on Processed Fruits and VegetablesPDF
81 FR 42666 - National Sea Grant Advisory Board (NSGAB)PDF
81 FR 42789 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Examination QuestionnairePDF
81 FR 42791 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Community and Economic Development Entities, Community Development Projects, and Other Public Welfare InvestmentsPDF
81 FR 42706 - FIFRA Scientific Advisory Panel; Notice of Public MeetingPDF
81 FR 42798 - Special Medical Advisory Group, Notice of MeetingPDF
81 FR 42673 - Revised Non-Foreign Overseas Per Diem RatesPDF
81 FR 42743 - North Anna Power Station Independent Spent Fuel Storage InstallationPDF
81 FR 42528 - Safety Zone; Ohio River Mile 317-318, Ashland, KYPDF
81 FR 42530 - Safety Zone; Ohio River Mile 607.5 to 608.6, IndianaPDF
81 FR 42524 - Safety Zone; Ohio River mile 307.8-308.8 Huntington, WVPDF
81 FR 42552 - Inflation Adjustment of Civil Monetary PenaltiesPDF
81 FR 42569 - Standardizing Phytosanitary Treatment Regulations: Approval of Cold Treatment and Irradiation Facilities; Cold Treatment Schedules; Establishment of Fumigation and Cold Treatment Compliance AgreementsPDF
81 FR 42705 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Flexible Vinyl and Urethane Coating and Printing (Renewal)PDF
81 FR 42548 - Civil PenaltiesPDF
81 FR 42788 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Notice Regarding Unauthorized Access to Customer InformationPDF
81 FR 42710 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 42700 - Haida Energy, Inc.; Notice of Application Accepted For Filing, Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 42697 - Kodiak Electric Association, Inc.; Notice of Application Accepted for Filing, Ready for Environmental Analysis, Soliciting Comments, Motions To Intervene, Protests, Recommendations, Terms and Conditions, and Fishway PrescriptionsPDF
81 FR 42696 - ISO New England Inc., New England Power Pool Participants Committee; Notice of Designation of Commission Staff as Non-DecisionalPDF
81 FR 42697 - Saguaro Power Company, a Limited Partnership; Notice of AmendmentPDF
81 FR 42696 - Transource Wisconsin, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 42697 - Xcel Energy Transmission Development Company, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 42702 - Xcel Energy Southwest Transmission Company, LLC; Notice of Institution of Proceeding and Refund Effective DatePDF
81 FR 42701 - Columbia Gas Transmission, LLC; Notice of Request Under Blanket AuthorizationPDF
81 FR 42700 - Magnum Gas Storage, LLC; Notice of Schedule for Environmental Review of The Magnum Gas Storage Amendment ProjectPDF
81 FR 42698 - Combined Notice of Filings #1PDF
81 FR 42629 - National Wildlife Services Advisory Committee; ReestablishmentPDF
81 FR 42630 - National Advisory Committee on Meat and Poultry InspectionPDF
81 FR 42711 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 42756 - Duke Energy Carolinas, LLC and North Carolina Electric Membership Corporation; Acceptance Criteria for Emergency Core Cooling Systems, McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2PDF
81 FR 42745 - Vogtle Electric Generating Plant Unit 3; Southern Nuclear Operating Company, Inc.; Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC., MEAG Power SPVJ, LLC., MEAG Power SPVP, LLC., and the City of Dalton, GeorgiaPDF
81 FR 42784 - Indexing the Annual Operating Revenues of RailroadsPDF
81 FR 42743 - Omaha Public Power District; Fort Calhoun Station, Unit No. 1PDF
81 FR 42672 - Submission for OMB Review; Comment RequestPDF
81 FR 42659 - Award Competitions for Hollings Manufacturing Extension Partnership (MEP) Centers in the States of Delaware, Hawaii, Iowa, Kansas, Maine, Mississippi, New Mexico, Nevada, North Dakota, South Carolina and WyomingPDF
81 FR 42742 - Arts Advisory Panel MeetingsPDF
81 FR 42645 - Notice of Public Meeting of the Alaska State Advisory CommitteePDF
81 FR 42478 - Civil Penalties Inflation AdjustmentsPDF
81 FR 42794 - Submission for OMB Review; Comment RequestPDF
81 FR 42784 - Texas Disaster Number TX-00472PDF
81 FR 42783 - Florida Disaster #FL-00117 Declaration of Economic InjuryPDF
81 FR 42564 - Pipeline Safety: Inflation Adjustment of Maximum Civil PenaltiesPDF
81 FR 42491 - Civil Monetary Penalties Inflation AdjustmentPDF
81 FR 42641 - Revision of Land and Resource Management Plan for the Santa Fe National Forest; Counties of Los Alamos, Mora, Rio Arriba, Sandoval, San Miguel, Santa Fe, and Taos, New MexicoPDF
81 FR 42645 - Deschutes Provinicial Advisory Committee MeetingPDF
81 FR 42720 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal AgenciesPDF
81 FR 42666 - Submission for OMB Review; Comment RequestPDF
81 FR 42742 - Proposed Collection; Comment RequestPDF
81 FR 42798 - Health Services Research and Development Service, Scientific Merit Review Board; Amended Notice of MeetingsPDF
81 FR 42693 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42688 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42671 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42686 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42695 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42684 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42741 - Maritime Advisory Committee for Occupational Safety and HealthPDF
81 FR 42731 - Proposed Collection, Comment RequestPDF
81 FR 42777 - SEC Advisory Committee on Small and Emerging CompaniesPDF
81 FR 42526 - Regulated Navigation Area; Fourth of July, Biscayne Bay, Miami, FLPDF
81 FR 42520 - Safety Zone; Fireworks Display; Ohio River Mile 469.6 to 470.2, Newport, KYPDF
81 FR 42506 - Madison Regatta, Inc./Madison Regatta, Madison, INPDF
81 FR 42512 - Safety Zone; City of Charleston Independence Celebration, Charleston, WVPDF
81 FR 42521 - Safety Zone; Fireworks Display; Ohio River Mile 408 to 409, Maysville, KYPDF
81 FR 42517 - Safety Zones; Duluth Fourth Fest, Duluth, MNPDF
81 FR 42523 - Safety Zones; Superior Man Triathlon, Duluth, MNPDF
81 FR 42510 - Safety Zones; Recurring Events in Captain of the Port Boston ZonePDF
81 FR 42779 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change for a Temporary Suspension of Those Aspects of Rules 36.20-Equities and 36.21-Equities That Would Not Permit Floor Brokers To Use Personal Portable Phone Devices on the Trading Floor Due to the Unavailability of Floor Broker Telephone ServicesPDF
81 FR 42766 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change for a Temporary Suspension of Those Aspects of Rules 36.20 and 36.21 That Would Not Permit Floor Brokers To Use Personal Portable Phone Devices on the Trading Floor Due to the Unavailability of Floor Broker Telephone ServicesPDF
81 FR 42648 - Submission for OMB Review; Comment RequestPDF
81 FR 42759 - Submission for Review: Reemployment of AnnuitantsPDF
81 FR 42669 - Agency Information Collection Activities; Proposed Collection; Comment Request; Third Party Conformity Assessment Body Registration FormPDF
81 FR 42646 - Proposed Information Collection; Comment Request; Local Update of Census Addresses OperationPDF
81 FR 42625 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Dolphin and Wahoo Fishery Off the Atlantic States; Regulatory Amendment 1PDF
81 FR 42726 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection U.S. Official Order Forms for Schedules I and II Controlled Substances DEA Form 222PDF
81 FR 42727 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of currently approved collection: 2017 School Crime Supplement (SCS) to the National Crime Victimization Survey (NCVS)PDF
81 FR 42726 - Agency Information Collection Activities; Proposed eCollection; eComments Requested; OSC Charge FormPDF
81 FR 42742 - Advisory Committee for Mathematical and Physical Sciences; Notice of MeetingPDF
81 FR 42665 - Judges Panel of the Malcolm Baldrige National Quality AwardPDF
81 FR 42709 - Meeting of the National Advisory Council for Healthcare Research and QualityPDF
81 FR 42654 - Healthcare Business Development Mission to China October 23-28, 2016PDF
81 FR 42657 - Trade Mission to Central America in Conjunction With the Trade Americas-Business Opportunities in Central America Conference, March 26-31, 2017PDF
81 FR 42656 - Information and Communication Technologies and Services Trade Mission to Singapore and Vietnam March 6-10, 2017PDF
81 FR 42651 - Health IT Trade Mission to Brazil September 26-30, 2016PDF
81 FR 42482 - Country-by-Country ReportingPDF
81 FR 42654 - Subsea & Onshore Technology Trade Mission to Rio de Janeiro, Brazil October 19-21, 2016; AmendmentPDF
81 FR 42715 - Risk Assessment of Foodborne Illness Associated With Pathogens From Produce Grown in Fields Amended With Untreated Biological Soil Amendments of Animal Origin; Request for Scientific Data, Information, and Comments; Extension of Comment PeriodPDF
81 FR 42650 - Civil Nuclear Trade Advisory Committee: Meeting of the Civil Nuclear Trade Advisory CommitteePDF
81 FR 42714 - Inorganic Arsenic in Rice Cereals for Infants: Action Level; Draft Guidance for Industry; Supporting Document for Action Level for Inorganic Arsenic in Rice Cereals for Infants; Arsenic in Rice and Rice Products Risk Assessment: Report; Availability; Extension of the Comment PeriodPDF
81 FR 42690 - 36(b)(1) Arms Sales NotificationPDF
81 FR 42713 - Agency Information Collection Activities; Proposed Collection; Comment Request; Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002; Extension of Comment PeriodPDF
81 FR 42585 - Society of the Plastics Industry, Inc.; Filing of Food Additive PetitionPDF
81 FR 42667 - Agency Information Collection Activities: Notice of Intent To Renew Collection 3038-0102, Clearing Exemption for Certain Swaps Entered Into by CooperativesPDF
81 FR 42668 - Agency Information Collection Activities: Notice of Intent To Renew Collection 3038-0005, Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission MerchantsPDF
81 FR 42653 - Notice of Final Results of Antidumping Duty Changed Circumstances Review: Circular Welded Non-Alloy Steel Pipe From the Republic of KoreaPDF
81 FR 42716 - Delegation of AuthorityPDF
81 FR 42716 - Mandatory Guidelines for Federal Workplace Drug Testing ProgramsPDF
81 FR 42730 - Comment Request for Information Collection for Form ETA 9033 Attestation by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports (OMB Control Number 1205-0309) and Form ETA 9033-A, Attestation by Employers Using Alien Crewmembers for Longshore Activities in the State of Alaska (OMB Control Number 1205-0309)PDF
81 FR 42729 - Agency Information Collection Activities; Comment Request; Unemployment Insurance Benefits Operations State Self-Assessment Report of ResponsesPDF
81 FR 42728 - Notice of Reopened Availability of Funds and Funding Opportunity Announcement for the Senior Community Service Employment Program (SCSEP) National Grants for Program Year (PY) 2016PDF
81 FR 42692 - Submission for OMB Review; Comment RequestPDF
81 FR 42532 - Inspection Service Authority; Civil Monetary Penalty Inflation AdjustmentPDF
81 FR 42760 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 42760 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 42760 - Privacy Act of 1974; System of RecordsPDF
81 FR 42548 - Medicare and Medicaid Programs; Fire Safety Requirements for Certain Health Care Facilities; CorrectionPDF
81 FR 42792 - Proposed Collection; Comment Request for Forms 8288 and 8288-APDF
81 FR 42761 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
81 FR 42762 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment Nos. 5 and 6, To Adopt Initial and Continued Listing Standards for the Listing of Equity Investment Tracking Stocks and Adopt Listing Fees Specific to Equity Investment Tracking StocksPDF
81 FR 42781 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Temporarily Widen Price Collar Thresholds for the Core Open Auction and Trading Halt AuctionsPDF
81 FR 42777 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to the Acceptance of Pass-Through Letters of Credit as a Form of Margin AssetPDF
81 FR 42768 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change to List and Trade the Shares of the VanEck Vectors Long/Flat Commodity ETFPDF
81 FR 42792 - Proposed Collection; Comment Request for Form 6478PDF
81 FR 42794 - Art Advisory Panel-Notice of Availability of Report of 2015 Closed MeetingsPDF
81 FR 42708 - Deletion of Items From Sunshine Act MeetingPDF
81 FR 42719 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 42717 - Office of the Director; Notice of MeetingPDF
81 FR 42717 - Center For Scientific Review; Notice of Closed MeetingsPDF
81 FR 42718 - Request for Data and Information on Technologies Used for Identifying Potential Developmental ToxicantsPDF
81 FR 42719 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 42718 - Government-Owned Inventions; Availability for LicensingPDF
81 FR 42719 - Government-Owned Inventions; Availability for LicensingPDF
81 FR 42512 - Safety Zones; Safety Zones Within the Captain of the Port New Orleans Zone; New Orleans to Baton Rouge, LAPDF
81 FR 42506 - Drawbridge Operation Regulation; Chambers Creek, Steilacoom, WAPDF
81 FR 42515 - Safety Zone; City of Bayfield Fourth of July Fireworks, Lake Superior, Bayfield, WIPDF
81 FR 42566 - Small Entity Size Standards Under the Regulatory Flexibility ActPDF
81 FR 42737 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
81 FR 42736 - Affirmative Decisions on Petitions for Modification Granted in Whole or in PartPDF
81 FR 42793 - Proposed Collection; Comment Request for e-Services Registration TIN Matching-Application and Screens for TIN Matching InteractivePDF
81 FR 42712 - Agency Information Collection Activities; Proposed Collection; Comment Request; State Annual Long-Term Care Ombudsman Report Amended Data CollectionPDF
81 FR 42721 - Proclaiming Certain Lands as Reservation for the Port Gamble S'Klallam Tribe of WashingtonPDF
81 FR 42722 - Hannahville Indian Community Liquor Control CodePDF
81 FR 42785 - Actions Taken at June 16, 2016, MeetingPDF
81 FR 42734 - Proposed Extension of Information Collection; Program To Prevent Smoking in Hazardous Areas (Pertains to Underground Coal Mines)PDF
81 FR 42733 - Proposed Extension of Information Collection; Hazardous Conditions ComplaintsPDF
81 FR 42735 - Proposed Extension of Information Collection; Safety Standards for Underground Coal Mine Ventilation-Belt Entry Used as an Intake Air Course To Ventilate Working Sections and Areas Where Mechanized Mining Equipment Is Being Installed or RemovedPDF
81 FR 42912 - Safety and Effectiveness of Consumer Antiseptics; Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Proposed Amendment of the Tentative Final Monograph; Reopening of Administrative RecordPDF
81 FR 42644 - Information Collection; Appeal of Decisions Relating to Occupancy or Use of National Forest System Lands and ResourcesPDF
81 FR 42784 - Culturally Significant Objects Imported for Exhibition Determinations: “The Art of the Qur'an: Treasures From the Museum of Turkish and Islamic Arts” ExhibitionPDF
81 FR 42577 - Proposed 2020 Census Residence Criteria and Residence SituationsPDF
81 FR 42786 - Request for Information: Nationally Uniform 911 Data SystemPDF
81 FR 42534 - Ex Parte CommunicationsPDF
81 FR 42576 - Draft Environmental Assessment for Notice of Proposed Rulemaking, “Energy Conservation Standards for Manufactured Housing” With Request for Information on Impacts to Indoor Air QualityPDF
81 FR 42453 - General Administrative Regulations; Catastrophic Risk Protection Endorsement; Area Risk Protection Insurance Regulations; and the Common Crop Insurance Regulations, Basic ProvisionsPDF
81 FR 42600 - Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; ReconsiderationPDF
81 FR 42609 - Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR)PDF
81 FR 42476 - Adjustment of Civil Monetary Penalty AmountsPDF
81 FR 42787 - National Advisory Committee on Travel and Tourism Infrastructure; Solicitation for Committee Member NominationsPDF
81 FR 42563 - Defense Federal Acquisition Regulation Supplement: New Designated Country-Ukraine (DFARS Case 2016-D026)PDF
81 FR 42608 - Defense Federal Acquisition Regulation Supplement: Administrative Cost To Issue and Administer a Contract (DFARS Case 2016-D020)PDF
81 FR 42557 - Defense Federal Acquisition Regulation Supplement: Pilot Program on Acquisition of Military Purpose Nondevelopmental Items (DFARS Case 2016-D014)PDF
81 FR 42562 - Defense Federal Acquisition Regulation Supplement: Treatment of Interagency and State and Local Purchases (DFARS Case 2016-D009)PDF
81 FR 42559 - Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions (DFARS Case 2015-D021)PDF
81 FR 42607 - Defense Federal Acquisition Regulation Supplement: Contract Financing (DFARS Case 2015-D026)PDF
81 FR 42556 - Defense Federal Acquisition Regulation Supplement: Deletion of Supplemental Coverage for the Definition of “Simplified Acquisition Threshold” (DFARS Case 2016-D007)PDF
81 FR 42882 - Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System OperatorsPDF
81 FR 42802 - Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment; and the Comprehensive End-Stage Renal Disease Care ModelPDF
81 FR 42725 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 42940 - Clean Energy Incentive Program Design DetailsPDF
81 FR 42576 - Amendment to the Beef Promotion and Research Rules and Regulations; WithdrawalPDF
81 FR 42554 - Adjustment of Civil Monetary Penalties To Reflect InflationPDF

Issue

81 126 Thursday, June 30, 2016 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Meetings: National Advisory Council for Healthcare Research and Quality, 42709 2016-15487 Aging Aging Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Annual Long-Term Care Ombudsman Report, 42712-42713 2016-15433 Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Beef Promotion and Research Rules and Regulations; Withdrawal, 42576 2016-14823 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Federal Crop Insurance Corporation

See

Food Safety and Inspection Service

See

Forest Service

Animal Animal and Plant Health Inspection Service PROPOSED RULES Standardizing Phytosanitary Treatment Regulations: Approval of Cold Treatment and Irradiation Facilities; Cold Treatment Schedules; Establishment of Fumigation and Cold Treatment Compliance Agreements, 42569-42576 2016-15568 NOTICES National Wildlife Services Advisory Committee; Reestablishment, 42629 2016-15551 Census Bureau Census Bureau PROPOSED RULES Proposed 2020 Census Residence Criteria and Residence Situations, 42577-42585 2016-15372 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Local Update of Census Addresses Operation, 42646-42648 2016-15495 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare and Medicaid Programs:, 42548 2016-15460 PROPOSED RULES Medicare Program: End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, etc., 42802-42880 2016-15188 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42710-42712 2016-15549 2016-15564 Children Children and Families Administration NOTICES Delegations of Authority, 42716 2016-15470 Civil Rights Civil Rights Commission NOTICES Meetings: Alaska State Advisory Committee, 42645-42646 2016-15535 Coast Guard Coast Guard RULES Drawbridge Operations: Chambers Creek, Steilacoom, WA, 42506-42507 2016-15439 Regulated Navigation Areas: Fourth of July, Biscayne Bay, Miami, FL, 42526-42528 2016-15508 Safety Zones: Captain of the Port New Orleans Zone; New Orleans to Baton Rouge, LA, 42512-42515 2016-15440 City of Bayfield Fourth of July Fireworks, Lake Superior, Bayfield, WI, 42515-42517 2016-15438 City of Charleston Independence Celebration, Charleston, WV, 42512 2016-15505 Duluth Fourth Fest, Duluth, MN, 42517 2016-15503 Fireworks Display, Ohio River Mile 408 to 409, Maysville, KY, 42521-42523 2016-15504 Fireworks Display, Ohio River Mile 469.6 to 470.2, Newport, KY, 42520-42521 2016-15507 Marine Events held in the Sector Long Island Sound Captain of the Port Zone, 42507-42510 2016-15601 Ohio River Mile 307.8-308.8 Huntington, WV, 42524-42526 2016-15570 Ohio River Mile 317 - 318, Ashland, KY, 42528-42530 2016-15572 Ohio River Mile 607.5 to 608.6, Indiana, 42530-42532 2016-15571 Pamlico Sound, Ocracoke, NC, 42517-42519 2016-15600 Recurring Events in Captain of the Port Boston Zone, 42510-42512 2016-15501 Superior Man Triathlon, Duluth, MN, 42523-42524 2016-15502 Special Local Regulations and Safety Zones: Madison Regatta, Inc./Madison Regatta, Madison, IN, 42506 2016-15506 Commerce Commerce Department See

Census Bureau

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42648 2016-15498
Commodity Futures Commodity Futures Trading Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Clearing Exemption for Certain Swaps Entered into by Cooperatives, 42667-42668 2016-15473 Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission Merchants, 42668-42669 2016-15472 Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Annual Long-Term Care Ombudsman Report, 42712-42713 2016-15433 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Community and Economic Development Entities, Community Development Projects, and Other Public Welfare Investments, 42791-42792 2016-15590 Examination Questionnaire, 42789-42791 2016-15594 Unauthorized Access to Customer Information, 42788-42789 2016-15565 Consumer Product Consumer Product Safety Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Third Party Conformity Assessment Body Registration Form, 42669-42670 2016-15496 Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions, 42559-42562 2016-15247 Deletion of Supplemental Coverage for the Definition of Simplified Acquisition Threshold, 42556-42557 2016-15236 New Designated Country—Ukraine, 42563-42564 2016-15258 Pilot Program on Acquisition of Military Purpose Nondevelopmental Items, 42557-42559 2016-15256 Treatment of Interagency and State and Local Purchases, 42562-42563 2016-15249 PROPOSED RULES Defense Federal Acquisition Regulation Supplement: Administrative Cost to Issue and Administer a Contract, 42608-42609 2016-15257 Contract Financing, 42607-42608 2016-15246 Defense Department Defense Department See

Defense Acquisition Regulations System

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42672-42673, 42692 2016-15465 2016-15543 Arms Sales, 42671-42672, 42684-42696 2016-15476 2016-15514 2016-15515 2016-15516 2016-15517 2016-15518 2016-15519 Revised Non-Foreign Overseas Per Diem Rates, 42673-42684 2016-15575
Drug Drug Enforcement Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: U.S. Official Order Forms for Schedules I and II Controlled Substances DEA Form 222, 42726 2016-15492 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Attestation by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports and Attestation by Employers Using Alien Crewmembers for Longshore Activities in the State of Alaska, 42730-42731 2016-15468 Unemployment Insurance Benefits Operations State Self-Assessment Report of Responses, 42729-42730 2016-15467 Funding Opportunity: Senior Community Service Employment Program National Grants for Program Year 2016, 42728 2016-15466 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Standards for Manufactured Housing: Draft Environmental Assessment with Request for Information on Impacts to Indoor Air Quality, 42576-42577 2016-15328
Environmental Protection Environmental Protection Agency RULES Exemptions from the Requirement of a Tolerance: Pentaerythritol tetrakis, 42543-42548 2016-15613 Standards of Performance for New Stationary Sources; CFR Correction, 42542-42543 2016-15707 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Regional Haze Federal Implementation Plan; Reconsideration, 42600-42607 2016-15305 Ohio; Removal of Stage II Gasoline Vapor Recovery Requirements, 42597-42600 2016-15617 Oklahoma; Revisions to Major New Source Review Permitting, 42587-42597 2016-15618 Clean Energy Incentive Program Design Details, 42940-42982 2016-15000 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: NSPS for Flexible Vinyl and Urethane Coating and Printing; Renewal, 42705-42706 2016-15567 Meetings: FIFRA Scientific Advisory Panel, 42706-42708 2016-15589 Plant-Incorporated Protectants: Proposed Modification of Registration Procedures for Breeding Line Intermediates, 42704-42705 2016-15615 Product Cancellation Orders: Certain Pesticide Registrations and Amendments to Terminate Uses, 42702-42704 2016-15616 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: General Electric Company Turbofan Engines, 42475-42476 C1--2016--14474 Federal Communications Federal Communications Commission RULES Adjustment of Civil Monetary Penalties to Reflect Inflation, 42554-42556 2016-14801 NOTICES Deletion of Items from Sunshine Act Meeting, 42708-42709 2016-15451 Federal Crop Federal Crop Insurance Corporation RULES General Administrative Regulations: Catastrophic Risk Protection Endorsement; Area Risk Protection Insurance Regulations; and the Common Crop Insurance Regulations, Basic Provisions, 42453-42475 2016-15327 Federal Energy Federal Energy Regulatory Commission RULES Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators, 42882-42910 2016-15196 NOTICES Applications: Haida Energy, Inc., 42700-42701 2016-15563 Kodiak Electric Association, Inc., 42697-42698 2016-15562 Combined Filings, 42698-42700 2016-15554 Designation of Commission Staff as Non-Decisional: ISO New England Inc., New England Power Pool Participants Committee, 42696-42697 2016-15561 Environmental Assessments; Availability, etc.: Magnum Gas Storage, LLC, 42700 2016-15555 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Columbia Gas Transmission, LLC, 42701-42702 2016-15556 Petition for Waiver Amendments: Saguaro Power Co., LP, 42697 2016-15560 Refund Effective Dates: Transource Wisconsin, LLC, 42696 2016-15559 Xcel Energy Southwest Transmission Company, LLC, 42702 2016-15557 Xcel Energy Transmission Development Co., LLC, 42697 2016-15558 Federal Maritime Federal Maritime Commission RULES Inflation Adjustment of Civil Monetary Penalties, 42552-42554 2016-15569 Federal Trade Federal Trade Commission RULES Adjustment of Civil Monetary Penalty Amounts, 42476-42478 2016-15302 Financial Crimes Financial Crimes Enforcement Network RULES Financial Crimes Enforcement Network; Civil Monetary Penalty Adjustment and Table, 42503-42506 2016-15653 Food and Drug Food and Drug Administration PROPOSED RULES Food Additive Petitions: Society of the Plastics Industry, Inc., 42585-42587 2016-15474 Safety and Effectiveness of Consumer Antiseptics: Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Tentative Final Monograph; Reopening of Administrative Record, 42912-42937 2016-15410 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act, 42713-42714 2016-15475 Guidance: Inorganic Arsenic in Rice Cereals for Infants: Action Level; Draft Guidance for Industry; Supporting Document for Action Level for Inorganic Arsenic in Rice Cereals for Infants; Arsenic in Rice and Rice Products Risk Assessment: Report, 42714-42715 2016-15478 Risk Assessment of Foodborne Illness Associated With Pathogens From Produce Grown in Fields Amended With Untreated Biological Soil Amendments of Animal Origin, 42715-42716 2016-15480 Food Safety Food Safety and Inspection Service NOTICES International Standard-Setting Activities, 42631-42640 2016-15632 Meetings: Codex Committee on Processed Fruits and Vegetables, 42629-42630 2016-15599 Renewals: National Advisory Committee on Meat and Poultry Inspection, 42630-42631 2016-15550 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Bauhaus Furniture Group, LLC, H.M. Richards Co, Inc., Lane Home Furniture Morgan Fabrics Corp., Foreign-Trade Zone 158, Tupelo, MS, 42648 2016-15631 Givaudan Flavors Corp., East Hanover, NJ, Foreign-Trade Zone 44, Morris County, NJ, 42649 2016-15628 Southern Motion, Inc., Subzone 158G, Pontotoc and Baldwyn, MS, Foreign-Trade Zone 158, Tupelo, MS, 42649-42650 2016-15630 United Chemi-Con, Inc., Lansing, NC, Foreign-Trade Zone 230, Piedmont Triad Area, NC, 42649 2016-15626 Subzone Expansion Applications: Space Systems/Loral, LLC, Palo Alto, Menlo Park and Mountain View, CA, Subzone 18E, Foreign-Trade Zone 18, San Jose, CA, 42650 2016-15629 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Appeal of Decisions Relating to Occupancy or Use of National Forest System Lands and Resources, 42644-42645 2016-15407 Environmental Impact Statements; Availability, etc.: Revision of Land and Resource Management Plan, Santa Fe National Forest; Los Alamos, Mora, Rio Arriba, Sandoval, San Miguel, Santa Fe, Taos Counties, NM, 42641-42644 2016-15525 Meetings: Deschutes Provinicial Advisory Committee, 42645 2016-15524 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Aging Administration

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Community Living Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Delegations of Authority, 42716 2016-15470 Mandatory Guidelines for Federal Workplace Drug Testing Programs, 42716-42717 2016-15469
Homeland Homeland Security Department See

Coast Guard

Indian Affairs Indian Affairs Bureau RULES Civil Penalties Inflation Adjustments, 42478-42482 2016-15534 NOTICES Hannahville Indian Community Liquor Control Code, 42722-42725 2016-15428 Land Proclamations: Port Gamble S'Klallam Tribe of Washington, 42721-42722 2016-15430 Interior Interior Department See

Indian Affairs Bureau

See

National Park Service

Internal Revenue Internal Revenue Service RULES Country-by-Country Reporting, 42482-42491 2016-15482 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42792-42793 2016-15453 2016-15459 Agency Information Collection Activities; Proposals, Submissions, and Approvals: e-Services Registration TIN Matching—Application and Screens for TIN Matching Interactive, 42793 2016-15434 Report of Closed 2015 Meetings: Arts Advisory Panel, 42794 2016-15452 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Circular Welded Non-Alloy Steel Pipe from the Republic of Korea, 42653-42654 2016-15471 Meetings: Civil Nuclear Trade Advisory Committee, 42650-42651 2016-15479 Trade Missions: Health IT, Brazil September 26-30, 2016, 42651-42653 2016-15483 Healthcare Business Development, China October 23-28, 2016, 42654-42656 2016-15486 Information and Communication Technologies and Services, Singapore and Vietnam March 6-10, 2017, 42656-42657 2016-15484 Mission to Central America in Conjunction with the Trade Americas—Business Opportunities in Central America Conference, 42657-42659 2016-15485 Subsea and Onshore Technology, Rio de Janeiro, Brazil October 19-21, 2016; Amendment, 42654 2016-15481 International Trade Com International Trade Commission NOTICES Meetings; Sunshine Act, 42726 2016-15633 Justice Department Justice Department See

Drug Enforcement Administration

RULES Civil Monetary Penalties Inflation Adjustment, 42491-42503 2016-15528 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2017 School Crime Supplement to the National Crime Victimization Survey, 42727-42728 2016-15491 OSC Charge Form, 42726-42727 2016-15490
Labor Department Labor Department See

Employment and Training Administration

See

Labor Statistics Bureau

See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

Labor Statistics Labor Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42731-42733 2016-15512 Maritime Maritime Administration RULES Civil Penalties, 42548-42552 2016-15566 Mine Mine Safety and Health Administration NOTICES Affirmative Decisions on Petitions for Modifications Granted in Whole or in Part, 42736-42737 2016-15435 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Hazardous Conditions Complaints, 42733-42734 2016-15425 Program to Prevent Smoking in Hazardous Areas (Pertains to Underground Coal Mines), 42734-42735 2016-15426 Safety Standards for Underground Coal Mine Ventilation, 42735-42736 2016-15424 Petitions for Modifications of Applications of Existing Mandatory Safety Standards, 42737-42740 2016-15436 National Endowment for the Arts National Endowment for the Arts NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42742 2016-15521 Meetings: Arts Advisory Panel, 42742 2016-15538 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Highway National Highway Traffic Safety Administration NOTICES Requests for Information: Nationally Uniform 911 Data System, 42786-42787 2016-15368 National Institute National Institute of Standards and Technology NOTICES Funding Availability: Award Competitions for Hollings Manufacturing Extension Partnership Centers in Delaware, et al., 42659-42665 2016-15539 Meetings: Judges Panel of the Malcolm Baldrige National Quality Award, 42665-42666 2016-15488 National Institute National Institutes of Health NOTICES Data and Information on Technologies Used for Identifying Potential Developmental Toxicants, 42718-42719 2016-15444 Government-Owned Inventions; Availability for Licensing, 42718-42719 2016-15441 2016-15442 Meetings: Center for Scientific Review, 42717 2016-15445 National Cancer Institute, 42719-42720 2016-15447 National Institute of Allergy and Infectious Diseases, 42719 2016-15443 Office of the Director, 42717 2016-15446 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Dolphin and Wahoo Fishery off the Atlantic States; Regulatory Amendment 1, 42625-42628 2016-15494 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42666-42667 2016-15522 Meetings: National Sea Grant Advisory Board, 42666 2016-15595 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 42725 2016-15086 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Mathematical and Physical Sciences, 42742-42743 2016-15489 Meetings; Sunshine Act, 42743 2016-15720 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Assessments; Availability, etc.: North Anna Power Station Independent Spent Fuel Storage Installation, 42743-42745 2016-15573 Exemptions: Duke Energy Carolinas, LLC and North Carolina Electric Membership Corp., Acceptance Criteria for Emergency Core Cooling Systems, McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2, 42756-42759 2016-15548 Vogtle Electric Generating Plant Unit 3, Southern Nuclear Operating Co., Inc., Georgia Power Co., Oglethorpe Power Corp., et al., 42745-42756 2016-15547 License Amendment Applications: Omaha Public Power District; Fort Calhoun Station, Unit No. 1; Withdrawal, 42743 2016-15544 Meetings; Sunshine Act, 42759 2016-15650 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Meetings: Maritime Advisory Committee for Occupational Safety and Health, 42741-42742 2016-15513 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reemployment of Annuitants, 42759-42760 2016-15497 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety: Inflation Adjustment of Maximum Civil Penalties, 42564-42566 2016-15529 PROPOSED RULES Hazardous Materials: Miscellaneous Petitions for Rulemaking, 42609-42625 2016-15303 Postal Regulatory Postal Regulatory Commission RULES Ex Parte Communications, 42534-42542 2016-15349 Postal Service Postal Service RULES Inspection Service Authority: Civil Monetary Penalty Inflation Adjustment, 42532-42534 2016-15464 NOTICES Privacy Act; Systems of Records, 42760-42761 2016-15461 Product Changes: Priority Mail and First-Class Package Service Negotiated Service Agreement, 42760 2016-15463 Priority Mail Negotiated Service Agreement, 42760 2016-15462 Securities Securities and Exchange Commission NOTICES Applications: Deregistration under the Investment Company Act, 42761-42762 2016-15458 Meetings: Advisory Committee on Small and Emerging Companies, 42777 2016-15509 Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange LLC, 42762-42768 2016-15457 2016-15499 NYSE Arca, Inc., 42781-42783 2016-15456 NYSE MKT LLC, 42779-42781 2016-15500 The NASDAQ Stock Market LLC, 42768-42777 2016-15454 The Options Clearing Corp., 42777-42779 2016-15455 Small Business Small Business Administration NOTICES Disaster Declarations: Florida, 42783 2016-15530 Texas; Amendment 1, 42784 2016-15531 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Art of the Qur'an: Treasures from the Museum of Turkish and Islamic Arts, 42784 2016-15398 Meetings: Advisory Committee on International Economic Policy, 42784 2016-15602 Substance Substance Abuse and Mental Health Services Administration NOTICES Certified Laboratories and Instrumented Initial Testing Facilities: Urine Drug Testing for Federal Agencies, 42720-42721 2016-15523 Surface Transportation Surface Transportation Board RULES Small Entity Size Standards, 42566-42568 2016-15437 NOTICES Indexing the Annual Operating Revenues of Railroads, 42784-42785 2016-15546 Susquehanna Susquehanna River Basin Commission NOTICES Meetings: Actions Taken, 42785-42786 2016-15427 Transportation Department Transportation Department See

Federal Aviation Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

NOTICES Requests for Nominations: National Advisory Committee on Travel and Tourism Infrastructure, 42787-42788 2016-15285
Treasury Treasury Department See

Comptroller of the Currency

See

Financial Crimes Enforcement Network

See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42794-42798 2016-15532
Veteran Affairs Veterans Affairs Department NOTICES Meetings: Health Services Research and Development Service, Scientific Merit Review Board, 42798-42799 2016-15520 Special Medical Advisory Group, 42798 2016-15576 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 42802-42880 2016-15188 Part III Energy Department, Federal Energy Regulatory Commission, 42882-42910 2016-15196 Part IV Health and Human Services Department, Food and Drug Administration, 42912-42937 2016-15410 Part V Environmental Protection Agency, 42940-42982 2016-15000 Reader Aids

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

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

81 126 Thursday, June 30, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Parts 400, 402, 407, and 457 [Docket No. FCIC-14-0005] RIN 0563-AC43 General Administrative Regulations; Catastrophic Risk Protection Endorsement; Area Risk Protection Insurance Regulations; and the Common Crop Insurance Regulations, Basic Provisions AGENCY:

Federal Crop Insurance Corporation, USDA.

ACTION:

Final rule.

SUMMARY:

The Federal Crop Insurance Corporation (FCIC) finalizes the General Administrative Regulations—Ineligibility for Programs under the Federal Crop Insurance Act, the Catastrophic Risk Protection Endorsement, the Area Risk Protection Insurance Regulations, and the Common Crop Insurance Regulations, Basic Provisions to revise those provisions affected by changes mandated by the Agricultural Act of 2014 (commonly referred to as the 2014 Farm Bill), enacted on February 7, 2014.

DATES:

This rule is effective June 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Tim Hoffmann, Director, Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141-6205, telephone (816) 926-7730.

SUPPLEMENTARY INFORMATION:

Background

This rule finalizes changes to the General Administrative Regulations—Ineligibility for Programs under the Federal Crop Insurance Act, the Catastrophic Risk Protection Endorsement, the Area Risk Protection Insurance Regulations, and the Common Crop Insurance Regulations, Basic Provisions that were published by FCIC on July 1, 2014, as a notice of interim rulemaking in the Federal Register at 79 FR 37155-37166. The public was afforded 60 days to submit written comments and opinions.

A total of 364 comments were received from 74 commenters. The commenters included persons or entities from the following categories: Academic, farmer, financial, insurance company, producer group, trade association, and other.

FCIC received a number of comments regarding sections of the Farm Bill that were not included in the interim rule. The comments received included but are not limited to (1) section 1404 participation of dairy operations in margin protection program; (2) section 11003 supplemental coverage option; (3) section 11017 stacked income protection plan for producers of upland cotton; (4) section 11022 whole farm diversified risk management insurance plan; and (5) section 11023 crop insurance for organic crops. These sections of the Farm Bill were not a part of this regulation. Therefore, FCIC is not publishing these comments in this final rule. FCIC thanks the public for their input.

The public comments received are organized below by the issues identified in this rule and the specific public comments received. The comments received and FCIC's responses are as follows:

General

Comment: A commenter stated programs to educate farmers on the new provisions contained in the Farm Bill are essential to proper implementation of this legislation and to the long-term success of Northeast agriculture.

The commenter suggested the United States Department of Agriculture (USDA) aggressively promote educational and informational programming, especially initiatives that involve and combine the efforts of public, private and educational entities.

Response: FCIC collaborated with producers, producers groups, agents, approved insurance providers, as well as the National Resource and Conservation Service (NRCS) and the Farm Service Agency (FSA) regarding several sections of the 2014 Farm Bill through meetings, teleconferences, webinars, and listening sessions to develop policies and procedures. The purpose of this outreach was to provide feedback and explain revisions, explain the rationale and approach for implementation, and reach out to specialty groups. General updates to ongoing activities were provided to approved insurance providers. Conservation compliance education included producers, producer groups, agents, and approved insurance provider meetings, collaborations with RMA, NRCS, and FSA, revising forms and certification policy and procedure, as well as providing this information to producers. FCIC conducted 135 in-person and webinar training sessions, and conducted radio spots and other forms of interviews reaching an even larger audience.

FCIC has published information on its Web site highlighting the major changes to the Federal crop insurance program in response to the 2014 Farm Bill implementation. Also published on the Web site are Fact Sheets, Question and Answers, and brochures regarding each section of the Farm Bill. FCIC has worked closely with approved insurance providers to make system changes and prepare procedural documents. In addition, FCIC participated with approved insurance providers and an insurance trade association to train the trainers, underwriters, loss adjusters, and agents. FCIC will continue to promote and educate on the implementation of the Farm Bill provisions as opportunities arise.

Comment: A commenter stated the current agricultural subsidy system is a maze of market distorting and highly parochial policies that generally rewards a handful of large farm businesses or well-connected industry segments at the expense of taxpayers. The system results in costly inefficiencies that detract from program goals and produce numerous unintended consequences. The Federal government bears a disproportionate amount of the financial risks for agribusinesses to the detriment of taxpayers, consumers, and agriculture as a sector making it less competitive, less resilient, and less accountable for its impacts.

The commenter has long advocated for reforms to make the agricultural safety net more cost-effective, transparent, accountable to taxpayers, and responsive to current market conditions and needs. While the Agricultural Act of 2014 fails to take the necessary steps to achieve this reformed safety net, instead of expanding the role of Washington in agriculture through new business income entitlement programs and increasing spending on federally subsidized crop insurance, there is an opportunity to make progress in the implementation of crop insurance provisions.

The commenter strongly encouraged FCIC to remember that while USDA may consider producers and other agricultural businesses “clients,” it is taxpayers who are footing the bill. Farm Bills are notorious for vastly exceeding their estimated costs—the last two Farm Bills are on pace to exceed by $400 billion their Congressional Budget Office scores at passage. The decisions FCIC makes in developing and administering programs under its jurisdiction play an important role in determining whether taxpayer-funded agricultural programs will continue to be vastly over budget.

The commenter strongly encourages FCIC to implement the Agricultural Act of 2014 while being cognizant of the reality that federal taxpayers are responsible for more than $17 trillion in debt and are facing annual deficits exceeding $500 billion. The commenter suggested FCIC not simply attempt to maximize spending, but follow the will of Congress in prioritizing federal support only where necessary and in a manner that is cost-effective and transparent.

Response: FCIC does not have the authority to change the amount of subsidies that are mandated by the Federal Crop Insurance Act and such subsidies cannot be eliminated without a change in law by Congress. Since the program changes contained in this rule were mandated by the 2014 Farm Bill, FCIC is required by law to implement the changes and will do so in the most cost-effective and transparent manner possible. No change has been made.

Comment: A commenter stated the third paragraph of background item i. indicates that as of the publication of FR Doc. 2013-25321 on October 25, 2013, a 1971 amendment to the Administrative Procedures Act that previously required codified Federal crop insurance policies to be published for public review and comment is no longer in effect. The commenter believed it would be a loss to FCIC if approved insurance providers, producers and others outside the Federal government were no longer able to ask questions and offer comments to planned policy revisions. Furthermore, the publication of comments and responses in the final rule clarifies the reason for policy changes and helps to avoid potential disputes and ambiguity in policy language. The commenter urged FCIC to continue its practice of publishing all codified crop insurance policy changes in the Federal Register for public review and comment.

Response: FCIC is no longer required by the Administrative Procedures Act due to the revocation of the Hardin Memorandum (78 FR 33045) to publish proposed rules because contracts are exempt from notice and comment rulemaking and the crop insurance policy is a contract. FCIC now has the discretion to determine the appropriateness of affording the public an opportunity for notice and comment when promulgating regulations relating to contracts. When issuing rules regarding crop insurance policies in the future, FCIC will take many factors into consideration including but not limited to the nature of the change, and whether it is anticipated to be controversial to any party, the exigency of the change, the significance of the change to stakeholders and any recommendations made by producers, producer groups, agents, loss adjusters, approved insurance providers or other interested parties. To the extent practicable, FCIC will solicit comments before making administrative rules effective, all other rules will be final rule with comment, which still affords the opportunity for the public to comment while making the rule effective upon publication. FCIC may consider the comments received and may conduct additional rulemaking based on those comments.

Comment: A commenter stated throughout section 6 of the CAT Endorsement, FCIC uses the word “paragraph” to reference other portions of the Endorsement, the commenter recommended FCIC replace the word “paragraph” with the word “section.” The commenter believed this change will ensure the CAT Endorsement would be consistent with phrasing used in the CCIP Basic Provisions and other crop insurance policies.

Response: FCIC agrees and has made the change accordingly.

Comment: A commenter stated the phrase “. . . within 30 days after you have been billed . . .” in revised section 6(b) of the CAT Endorsement implies the payment must be received within 30 days, precluding any potential for interest owed and making the timeframe for policy termination for unpaid premium ambiguous. As written, this phrase in the CAT Endorsement is inconsistent with the Annual Premium and Administrative Fees section in the applicable Basic Provisions. The commenter therefore recommended FCIC revise section 6(b) as follows: “In return for catastrophic risk protection coverage, you must pay an administrative fee and any applicable premium as specified in paragraph (f) of this section to us, unless otherwise authorized in the Federal Crop Insurance Act;” and insert a new sub-clause 6(b)(3) that states “You will be billed for any applicable premium and administrative fee not earlier than the premium billing date specified in the Special Provisions.”

Response: The phrase “within 30 days after you have been billed” in section 6(b) of the CAT Endorsement was not a change made by the interim final rule. The only change made to section 6(b) of the CAT Endorsement by the interim final rule was to add the phrase “and premium as specified in paragraph (f) of this section” between the phrases “administrative fee” and “to us within.” The addition of the phrase “and premium as specified in paragraph (f) of this section” does not preclude the potential for interest owed, when applicable, nor change the termination date of the policy. FCIC disagrees that the addition of the phrase “and premium as specified in paragraph (f) of this section” or the existing phrase “within 30 days after you have been billed” are inconsistent with the provisions in the Annual Premium and Administrative Fees section of the applicable Basic Provisions. However, as provided in the applicable Basic Provisions, if a conflict exists between the CAT Endorsement and the Basic Provisions, the CAT Endorsement controls. No change has been made.

Section 2611

Comment: A commenter did not think crop insurance should be connected with conservation. Farmers should be left alone to maintain their own land. The farmers are paying for their land, not the Federal Government. Farmers know and understand their land much better than USDA or Natural Resources Conservation Service (NRCS). USDA or NRCS cannot even understand the land classifications and want to make all land in a parcel “highly erodible” when there may be only a very small part of the parcel that is really erodible. The commenter recommended FCIC disconnect insurance from NRCS and let insurance companies compete for the business rather than continue with the current monopoly.

The commenter felt we have gotten very far off-base with government programs. The commenter explained that there are so many people working in government now that don't have any real understanding of how to work land, improve it, etc. They are only there to draw a salary and pretend to know something. Let the real farmers and ranchers control agriculture. Government programs now are really created and maintained for special interest groups, and that creates all kinds of requirements for the real farmers who know what they are doing. The people who farm small operations do not have a chance because there is somebody telling them they must do what the government wants when the government is unfairly operated in favor of takers rather than producers. The further we go into government control of farming, the less productivity we will have, and our food costs will continue to sky-rocket.

The commenter recommended separating the Supplemental Nutrition Assistance Program (SNAP) from farm programs. SNAP is leading the country in the wrong direction—dependency on somebody else to provide for those who will not keep a job, or maybe choose to have children with no intention of making a living for them.

Response: The 2014 Farm Bill linked the conservation compliance provisions to eligibility for Federal crop insurance premium subsidy. FCIC is required to implement these provisions of the 2014 Farm Bill. Further, FCIC has no control over how the conservation compliance programs are administered or the designation of highly erodible land. All such decisions are made by FSA and NRCS and communicated to FCIC. However, a producer may obtain Federally reinsured crop insurance without being in compliance with the conservation compliance provisions but such producer will be ineligible for premium subsidy on all Federally reinsured crop insurance policies and plans of insurance. The interim rule did not address any provisions of SNAP. Therefore, the comments cannot be considered in this final rule. No change has been made.

Comment: A commenter stated specialty crop and perennial producers have had limited participation in USDA programs, with the exception of the Federal crop insurance program. This agricultural segment is significant in number of producers and overall production throughout the Northeast and will have the greatest challenge meeting the timeline provided by USDA to comply with the conservation compliance requirements. The commenter requested that USDA recognize this challenge and provide leniency in the form of additional time for specialty crop producers that do not currently have an established relationship with FSA and the NRCS.

Response: The 2014 Farm Bill requires that all persons seeking eligibility for Federal crop insurance premium subsidy must provide a certification of compliance with the conservation compliance provisions beginning with the first full reinsurance year following February 7, 2014. The 2014 Farm Bill also requires that existing processes and procedures be used for certifying compliance to avoid creating an additional burden on producers and to provide fair and equal treatment to all producers regardless of what crops a producer grows or which program benefits a producer is seeking to obtain. Form AD-1026 has been used by producers to certify compliance with the provisions since the 1980's, including specialty and perennial crop producers seeking FSA benefits under programs such as the Tree Assistance Program and multiple ad hoc disaster programs.

However, while all persons must file a certification of compliance, Form AD-1026, by June 1, 2015, to be eligible for Federal crop insurance premium subsidy for the 2016 reinsurance year (July 1, 2015—June 30, 2016), the 2014 Farm Bill does provide additional time for producers who are subject to the conservation compliance provisions for the first time to develop and comply with a conservation plan or remedy a wetland violation, if needed. Since the conservation provisions are administered by FSA and NRCS, the terms and conditions relating to the additional time frames are specified in 7 CFR part 12. In addition, producers who are subject to the conservation compliance provisions for the first time will receive priority for NRCS technical assistance in developing and applying a conservation plan or in making a wetland determination, if needed.

Comment: A commenter stated the interim rule states, “Section 2611 of the 2014 Farm Bill links the eligibility for premium subsidy paid by FCIC to an insured's compliance with the Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) provisions of the Food Security Act of 1985.” The premise of these accountability standards—“conservation compliance”—is that receipt of Federal funding is a two-way street, and subsidies should not be used to tear up sensitive land, drain wetlands, or shift unintended costs onto others. These Farm Bill provisions reduce the cost of agricultural pollution and limit long term liabilities by ensuring producers minimize soil erosion on highly erodible land and forgo draining wetlands.

The commenter added that in order for these provisions to be effective, adequate enforcement of these minimum conservation practices must be prioritized after implementation. Independent analysts including USDA's own Office of Inspector General (OIG) found that from 1991 to 2008, compliance with conservation accountability standards varied from region to region, many farms were out of compliance (up to 20 percent in the 1995 OIG report), and millions in taxpayer dollars could have been saved if subsidies were appropriately withheld for risky production practices (http://www.agri-pulse.com/uploaded/ConservationCompliance.pdf). Strong enforcement, proper monitoring, and effective implementation should be prioritized so these provisions achieve measurable public benefits. Adequate resources must also be provided to local officials for monitoring and enforcement efforts, and staff members must be well-trained to ensure consistent enforcement from county to county and state to state.

The commenter also suggested that flexibility should also be built into program regulations so local, on-the-ground knowledge and realities are considered in farms' conservation plans. For instance, if only a small portion of a field is categorized as highly-erodible land, the sensitive acres may require a different conservation plan than the rest of the field. In addition, conservation practices should be evaluated in a holistic view to ensure that those with public benefits greatly outweigh others with potential negative impacts. For instance, installing stream buffers to conserve soil and water could be zeroed out if they are covered in excess agricultural residue left over from flooding or heavy rains. Public benefits of conservation practices may also be reduced when drainage tile is installed on farmland, increasing the rate at which water flows from farmland to nearby waterways. Considering these factors when developing conservation accountability standards will ensure that these provisions not only achieve their stated outcomes but also reduce long-term liabilities of agricultural runoff.

Response: Technical determinations regarding the conservation compliance provisions, such as whether land is highly erodible or a wetland, are made by NRCS. NRCS is also responsible for approving conservation and mitigation plans, when needed, to ensure land meets the conservation compliance requirements. The interim rule did not address the development, approval, or enforcement of the technical requirements for conservation or mitigation plans or the associated staffing needs. No change has been made.

Comment: A commenter believed that the conservation compliance provisions from the 2014 Farm Bill are effectively included in the rule concerning the CAT Endorsement, ARPI, and CCIP Basic Provisions. The commenter noted that the same text is included under each of these three parts of the rule. However, there are a few areas where some refinement could be helpful.

The rule specifically denies the premium subsidy for a compliance violation or failure to file a form AD-1026, and then specifically states that failure by the person to pay the full premium (without the premium subsidy) would result in termination of the policy and all other policies with FCIC. For example, section 6(f) of the CAT Endorsement denies the premium subsidy in the case of a violation and section 6(h) terminates the policy for failure to pay the required premium. The commenter supported the way that compliance has been handled in the rule, and the way it has provided clarity to the way FCIC will be handling it.

However, the commenter also pointed out that form AD-1026, as revised in June 2014 by FSA, can represent a somewhat more complex form for producers that are newly covered by compliance requirements—most of which have been participants in crop insurance, but not other USDA programs that have required compliance for some time. This final rule should provide some greater explanation about the form AD-1026, such as indicating the explanatory purpose of the appendix (as expanded in June of 2014), some description of the boxes to be checked on the form, and the significance of the affiliated person section.

The commenter recommended that the final rule include a specific discussion, perhaps in the background section, that indicates the time allowance for development and compliance with an approved conservation plan. The statute specified that any person newly covered would have five reinsurance years and persons that would have been in violation if they had continued participation in the programs requiring compliance would have two reinsurance years to come into compliance. Some indication of this phase in period would be helpful for those producers that are not familiar with conservation compliance requirements. This is especially important since the rule (and the statute) refer to reinsurance year whereas the form AD-1026 refers to crop year. While the commenter agreed with the time allowance and certain other provisions affecting a decision concerning compliance or a violation being left up to FSA, some greater explanation to that effect and perhaps a link to the FSA rules on HELC and WC would be helpful. Even with the reference to FSA responsibilities, the commenter urged FCIC to provide some clarity on the time allowance the insured has for developing and complying with conservation plans where applicable.

The commenter agreed with the clarity provided by the specific reference in the rule background that the HELC and WC provisions apply only to annually tilled crops.

Response: Form AD-1026 is an FSA form used by producers to self-certify compliance with the conservation compliance provisions. On June 30, 2014, FSA released a modified Form AD-1026 and appendix to incorporate the 2014 Farm Bill provisions relating to crop insurance. As an FSA form, the explanation of and instructions for completing the form are provided by FSA, which can be found at http://forms.sc.egov.usda.gov/efcommon/eFileServices/eForms/AD1026.PDF. Since it is FSA that is administering the AD-1026 process, it is best that FSA explain the process and the forms to producers and that such information is contained in their procedures where it can be more comprehensive and up to date than FCIC can provide in this rule.

The interim rule changed the applicable crop insurance Basic Provisions to indicate that producers must have Form AD-1026 on file and they must be in compliance with the conservation compliance provisions of 7 CFR part 12. FSA and NRCS administer the conservation compliance programs and make determinations regarding the additional time frames. Therefore, FSA and NRCS are in the best position to explain the requirements to producers regarding the additional time frames to come into compliance with the conservation compliance provisions. The provisions of 7 CFR part 12 regarding the requirements for conservation compliance and the additional time frames for producers who have never participated in programs for which the conservation compliance provisions were applicable to come into compliance can be found at http://www.thefederalregister.org/fdsys/pkg/FR-2015-04-24/pdf/2015-09599.pdf. However, RMA, FSA, and NRCS have been working diligently to assure that all producers are aware of their obligations under the conservation compliance provisions through meetings, mailings, outreach, etc. To clarify, a producer must provide an AD-1026 form that encompasses all acreage in the producers' farming operation. However, if the crop on acreage does not qualify as an “agricultural commodity” as defined in section 2601 of the Food Security Act of 1985, then the producer may be exempt from the other conservation compliance requirements. No change has been made.

Comment: A commenter stated as USDA implements the new conservation compliance provisions that link compliance to crop insurance, the commenter asked that FCIC take into consideration the impact of access and availability of crop insurance for producers. Close to 80 percent of the nation's wheat acres are covered by crop insurance and the impact of the regulations USDA is developing could have a significant adverse impact on wheat growers' access to crop insurance in future years. The ability of USDA personnel to address highly erodible land (HEL) and wetland compliance issues in the field and work with producers directly on mitigation and understanding of the new requirements will be critical to producers livelihoods.

Specifically, the commenter asked that USDA clarify that producers must only complete the AD-1026 prior to June 1, 2015, not that a completed compliance check be undertaken. It is also very important that USDA ensure that producers undergoing existing wetland compliance review or appeals are not adversely impacted when seeking crop insurance next year.

The 2014 Farm Bill establishes a new date of February 7, 2014 for wetland conversion related to eligibility for crop insurance premium subsidies and wheat growers suggest a clear distinction be made between reviews to determine eligibility for premium subsidies for crop insurance, and participation in agriculture risk coverage (ARC) or price loss coverage (PLC) and conservation programs. The 2014 Farm Bill also establishes timeframes for producers to come into compliance if they have not been participating in programs covered by conservation compliance. There are wheat growers who may not currently be participating in commodity or conservation programs, and are, therefore, not subject to conservation compliance, so they may need to use the time to come into compliance. USDA must ensure that these producers needing to come into HEL compliance or wetland conservation compliance are not adversely impacted when they are seeking insurance next year and subsequent years.

Response: The interim rule changed the policy provisions to indicate that producers must have Form AD-1026 on file by June 1 prior to the sales closing date, and they must be in compliance with the conservation compliance provisions of 7 CFR part 12. For producers who have previously been required to file Form AD-1026, such producers must be in compliance with the conservation compliance provisions. For certain producers, additional time is provided to get into compliance with the conservation provisions. However, since FSA and NRCS are administering the conservation compliance programs, the provisions to provide the additional time frames to allow producers who have never before been subject to the conservation compliance provisions can be found at 7 CFR part 12 and http://www.thefederalregister.org/fdsys/pkg/FR-2015-04-24/pdf/2015-09599.pdf.

Technical determinations regarding the conservation compliance provisions, such as whether land is highly erodible or a wetland, are made by NRCS. NRCS is also responsible for approving conservation and mitigation plans, when needed, to ensure land meets the conservation compliance requirements and conducting any compliance reviews and spot-checks. The interim rule did not address the development, approval, or enforcement of the technical requirements for conservation or mitigation plans, as these are not RMA, FCIC, or approved insurance provider responsibilities.

The details regarding the additional time afforded for certain producers to comply with the provisions, how administrative appeals affect a final determination of violation, and the differing dates for determining eligibility for FSA programs and Federal crop insurance premium subsidy due to a wetland conservation violation were not included in the interim rule. The details regarding such provisions and how they apply are contained in an amendment to the regulations at 7 CFR part 12. No change has been made.

Comment: A commenter stated section 7(h) of the CCIP Basic Provisions is poorly organized and includes repetition of Highly Erodible Land/Wetland Conservation and Form AD-1026 requirements. To streamline and eliminate any ambiguity in this section, the commenter recommended FCIC reorganize section 7(h) of the CCIP Basic Provisions as follows:

(h) Effective for any policies with a sales closing date on or after July 1, 2015:

(1) You will be ineligible for any premium subsidy paid on your behalf by FCIC for any policy issued by us if:

(i) USDA determines you have committed a violation . . .; or

(ii) You fail to file form AD-1026, or a successor form, with FSA by the applicable deadline to be properly identified as in compliance with the applicable conservation provisions specified in section 7(h)(1):

(A) By June 1 after you make application for insurance if you demonstrate you are a beginning farmer or rancher . . . ; or

(B) By June 1 prior to the sales closing date for all others.

(2) To be eligible for premium subsidy paid on your behalf by FCIC, it is your responsibility to assure you meet all the requirements in section 7(h)(1) above.

Response: FCIC does not agree the suggested language streamlines, clarifies or improves the readability of the section to the extent that a change is warranted. The proposed changes may have adverse or unintended consequences. The proposed revision introduces new paragraph designations that are not necessary and create additional cross-references that can lead to greater confusion and potential for inaccurate reading. In addition, the proposed revisions could inadvertently change the meaning of the provisions. No change has been made.

Comment: A commenter requested that FCIC allow producers who are out of compliance as of June 1 preceding the sales closing date for the upcoming reinsurance year to be able to regain eligibility if they are determined to be back in compliance prior to the sales closing date for any crop on their policy.

Another commenter agreed with the requirement of maintaining Conservation Compliance in order to qualify for the insurance premium subsidy and with FCIC's approach of not denying benefits during the year in which a farm is found to be out of compliance. However, the commenter urged FCIC to reconsider the manner in which penalties are imposed in the following year. There is significant time between the start of the reinsurance year and the sales closing date for most crops, especially cotton and other spring-seeded crops. If a producer is found to be out of compliance at the beginning of the reinsurance year, the commenter encouraged FCIC to consider giving producers the opportunity to reinstate their eligibility for premium subsidies if they are able to achieve conservation compliance by the sales closing date.

Another commenter stated the proposed June 1 deadline for filing the AD-1026 form is in the regulation, but not in the statute. The commenter requested that FCIC allow producers who are out of compliance as of June 1 to be able to regain eligibility for premium subsidy if they are determined to be back in compliance before the SCD for any crop on their policy. The commenter assumed that FSA will establish procedures around the ability of producers to become eligible for premium subsidy after June 1 but prior to the SCD for any crop on their policy.

A commenter stated the proposed implementation of the new “Conservation Compliance” provisions for the Federal crop insurance program appears to be fairly straightforward with the exception of the direction FCIC has taken regarding possible penalties for producers who temporarily fall out of compliance during an insurance year. While the commenter supported maintaining producer eligibility for premium assistance during the year that a conservation compliance-related problem is recognized, the commenter believed the automatic exclusion of the producer from participating in the program the following insurance year is overly harsh and inflexible. It fails to recognize that the producer may be able to bring themselves back into compliance prior to the start of the next reinsurance year or by their next applicable sales closing date. For cotton producers in the commenter's service area, there is a nine-month difference between the start of a reinsurance year on July 1 and the applicable sales closing date for cotton of March 15. This is a significant period of time during which a producer can come back into compliance, especially if the issue that made them non-compliant was temporary or short-term in nature and can be remedied prior to the next growing season. The commenter believed FCIC should reevaluate the interim rule and revise so that it recognizes and encourages a producer to get back into compliance as quickly as possible and prior to their next applicable sales closing date in order to prevent any lapse in their ability to participate and receive premium assistance. By allowing this option FCIC will accomplish two important goals. First, it will provide a reasonable incentive to quickly address conservation compliance related issues and further the purpose of the provision to enhance environmental stewardship. Second, it will prevent the unnecessary exclusion of otherwise eligible Federal crop insurance program participants.

Response: The 2014 Farm Bill specifies, in the case of a violation, ineligibility for Federal crop insurance premium subsidy applies to the reinsurance year following the date of a final determination of a violation, including all administrative appeals. The reinsurance year runs from July 1 through June 30. This is why the June 1 date for determining compliance was used so that approved insurance providers would know before the start of the reinsurance year on July 1 who was in compliance and would be eligible for premium subsidy. However, under the commenters' proposal, it would directly conflict with the 2014 Farm Bill to allow producers to regain their eligibility during the reinsurance year when the 2014 Farm Bill expressly states they are ineligible for premium subsidy. For example, under the 2014 Farm Bill, if a producer is determined to be in violation of the conservation compliance provisions as of June 1, 2016 and all appeals have been exhausted, the producer is ineligible for Federal crop insurance premium subsidy the 2017 reinsurance year, which runs from July 1, 2016 to June 30, 2017. This means the producer would be ineligible for premium subsidy for all crops with a sales closing date within that period. Even if the producer becomes compliant in August 2016, the 2014 Farm Bill requires eligibility for the remainder of the reinsurance year. No change has been made.

Comment: A commenter stated the National Environmental Policy Act (NEPA) and Implementing Regulations NEPA requires all Federal agencies to prepare an Environmental Impact Statement (EIS) for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” As a preliminary step, an agency may prepare an Environmental Assessment (EA) to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS. If an EA establishes that the agency's action may have a significant effect upon the environment, the agency must prepare an EIS.

An agency does not have to prepare an EIS or EA if the action to be taken falls under a categorical exclusion (CE), which include agency-identified categories of actions that do not individually or cumulatively have a significant effect on the human environment. An EA or EIS must be prepared even for otherwise categorically excluded actions where the action may have the potential to affect the environment.

USDA regulations exempt FCIC from NEPA compliance. However, the commenter notes that actions of excluded agencies, including FCIC, are no longer categorically excluded from the preparation of an EA or EIS if “the agency head determines that an action may have a significant environmental effect.”

Similarly, FSA regulations provide that “major changes in ongoing programs” or “major environmental concerns with ongoing programs” are among the categories of FSA activities “that have or are likely to have significant environment[al] impacts on the human environment.” “Initial NEPA involvement in program categories” that are listed as likely to have significant environmental impacts “shall begin at the time [ ]FSA begins developing proposed legislation, begins the planning stage for implementing a new or changed program or receives notice that an ongoing program may have a significant adverse impact on the quality of the human environment.”

Accordingly, CFS hereby provides notice to FCIC as the joint administrator of the crop insurance program that it must comply with NEPA because the crop insurance provisions of the 2014 Farm Bill implicate conservation programs to which NEPA applies, and may have a significant environmental effect.

The 2014 Farm Bill made two significant changes to existing agricultural programs. First, it tied the federally-funded portion of crop insurance premiums for commodities to conservation compliance. The 2014 Farm Bill requires farmers who purchase subsidized crop insurance to develop conservation plans when they grow crops on land subject to high rates of erosion. The 2014 Farm Bill reattaches soil and wetland conservation requirements to crop insurance premium subsidies, and establishes a Sodsaver provision to protect native grasslands, which prohibits recipients of crop insurance subsidies from draining or filling wetlands unless they mitigate those wetland losses. Now a producer who plows native prairie for crop production in one of the six states covered by the program will receive a 50-percentage-point crop insurance premium subsidy reduction. The prerequisite of implementing an approved conservation plan before producing a commodity on highly erodible land or converting a wetland to crop production has existed since the 1985 Farm Bill and previously affected most USDA farm program benefits, but has excluded crop insurance since 1996. The 2014 Farm Bill again links crop insurance to conservation compliance.

Second, the 2014 Farm Bill merges commodity payments into the crop insurance scheme. The 2014 Farm Bill eliminates direct commodity payments, countercyclical payments in their current form, and the Average Crop Revenue Election (ACRE) program. In place of direct payments, the 2014 Farm Bill revises the counter-cyclical payment program that was established in 2002 and the ACRE program that existed alongside direct payments into the new Price Loss Coverage (PLC) and Agriculture Risk Coverage (ARC) crop insurance options. Thus commodity support is now part of the crop insurance program.

As a result of these two significant changes, NEPA applies to the crop insurance program. First, conservation programs are subject to NEPA under FSA regulations. Because the 2014 Farm Bill explicitly links conservation compliance to the new crop insurance program, NEPA obligations attach to the new crop insurance program.

Second, the changes to the crop insurance program will significantly affect the human environment. In fact, the crop insurance-conservation program is specifically designed to significantly affect the quality of the human environment by protecting sensitive lands and preventing soil loss. Degraded soil quality has a host of serious environmental consequences, while directly undermining the ability of farmers to grow nutritious food and be resilient in the face of disruption. Soil erosion causes water pollution, impacts wildlife habitat, and threatens long-term land productivity. Soil erosion and depletion also affects air quality and climate change: Clearing land converts stored carbon into carbon monoxide, and more than a third of the excess carbon monoxide that has been added to the atmosphere has come from the destruction of soils. Releasing more carbon monoxide into the atmosphere than it can effectively absorb also causes ocean acidification and contributes to the destruction of coral reefs and other marine ecosystems.

Now, farmers who purchase or receive crop insurance will have to develop conservation plans when growing on land subject to high rates of erosion and will be prohibited from draining or filling wetlands without mitigating the losses. Approximately one third of cropland in the United States is highly erodible, meaning that these provisions affect a significant percentage of acreage. The program also limits subsidies to farmers who convert native grasslands to crop production. From 2008 to 2011, more than 23 million acres of grassland, shrub land, and wetlands were destroyed for crop production, destroying habitat that sustains many species of birds and other animals and threatening the diversity of North America's wildlife. In light of these realities, the intended result of these new provisions is to protect sensitive land and prevent soil loss. NEPA is concerned with all significant environmental impacts, not merely adverse impacts. These impacts alone are significant enough to trigger NEPA.

The new crop insurance program may also significantly, and directly, impact the environment in a negative way. The negative effects of commodity crop subsidies have been thoroughly documented. In short, subsidies—including crop insurance—encourage farmers to grow commodity crops on otherwise fallow or environmentally sensitive land. As just one example, a 2012 study by researchers at Iowa State University utilized field-level yield data up to 2006 and price data over 2005-2008, and found that up to three percent of land under the Federal crop insurance program would not have been converted from grassland if there had been no crop insurance subsidies.

With commodity crop production often comes intensive and environmentally destructive practices such as mono-cropping and heavy pesticide use. Single-crop production is more intensive and requires significantly higher usage of pesticides, herbicides, and fertilizers. Reduced crop diversity significantly increases crop losses due to insects and pathogens and reduced soil organic matter. These problems lead to increased use of pesticides and fertilizers, which in turn can increase pathogen and insect populations. Commodity-crop monoculture reduces habitat for wildlife, including birds, pollinators, and other animals that eat pest insects. In addition to reducing species richness and harming key species, this compounds the need for pesticides. On average organic farms have 30 percent higher biodiversity, including birds, pollinators, and plants, than their mono-cropped industrial counterparts. Subsidies also create higher marginal revenues for inputs (fertilizers, pesticides, herbicides, seeds, and labor), thereby motivating additional input use, by raising prices and reducing price variations in program crops. For example, compared with farmers who do not participate in commodity programs, corn farmers receiving subsidies have reported significantly increased herbicide use in all cropping sequences, “supporting the conventional view that commodity programs directly contribute to greater herbicide use in corn production.” The industrial-scale use of pesticides, herbicides, and fertilizers in turn significantly affects rivers and groundwater, harming aquatic ecosystems and the life forms they support. Over half of synthetic nitrogen fertilizers used on global cereal production (including corn and soy) are lost through groundwater leaching or released as nitrous oxide into the atmosphere. Nitrous oxide is a greenhouse gas 310 times more potent than carbon monoxide, and in the United States three-quarters of it comes from agricultural soil management. The effects of commodity farming as supported by the new crop insurance program are thus serious and significant.

These impacts flow directly from the new crop insurance program—a major Federal action significantly affecting the human environment—triggering FCIC's duty to comply with NEPA in implementing the programs.

For the forgoing reasons, NEPA applies to the new crop insurance program. NEPA requires FCIC to, at a minimum, conduct an EA for the new crop insurance subsidies. FCIC's failure to comply with NEPA in implementing these programs would constitute a blatant violation of NEPA and USDA regulations.

Response: The regulations at 7 CFR part 1b provide that the FCIC is categorically excluded from the preparation of an environmental assessment or environmental impact statement unless the agency head determines that an action may have a significant environmental effect. The 2014 Farm Bill mandates the expansion of current conservation compliance requirements to apply to persons who seek eligibility for Federal crop insurance premium subsidy. However, these 2014 Farm Bill provisions do not change the existing rules regarding the technical determinations for the conservation compliance provisions, such as whether land is highly erodible or a wetland, conservation and mitigation plans, when needed, to ensure land meets the conservation compliance requirements and conducting any compliance reviews and spot-checks. Further, FCIC merely amended the policy to include the requirements of the 2014 Farm Bill, the regulations governing the conservation compliance provisions of the Food Security Act of 1985, as amended by the 2014 Farm Bill, are found at 7 CFR part 12. In addition, although Federal crop insurance participants were not previously subject to conservation compliance, the majority of insured participants were already participating in farm programs subject to conservation compliance. Therefore, the head of the agency has determined that this final rule will not have a significant environmental effect.

Comment: A commenter stated there is considerable confusion surrounding the issue of new conservation compliance rules for crop insurance.

For instance, the Background in the interim rule, in the third column of page 37157, states that “[e]ven if the insured [determined to be non-compliant on June 1, 2015, (2015 reinsurance year)] becomes compliant during the 2016 reinsurance year, the insured will not be eligible for premium subsidy until the 2017 reinsurance year starting on July 1, 2016.” However, when questioned about this matter during a hearing of the House Subcommittee on General Farm Commodities and Risk Management, held July 10, 2014, Undersecretary Michael Scuse stated, “Well, remember, we're asking them to sign up that they will be in compliance on June 15th and then they are given a period of time to come into compliance.” In response to a follow up question of exactly how long the producer would have to come back into compliance, Undersecretary Scuse stated that this would be established “in the rule.”

The commenter agreed with the Undersecretary's point of view that the producer ought to be given time to come back into compliance. However, the interim rule, at least in the Background, appears to take a punitive approach that is inconsistent with the Undersecretary's statement. The commenter respectfully urged that the rule clarify that the producer does, in fact, have time to come back into compliance and what that time period is precisely. The commenter also urged that, beyond the rulemaking, FCIC develop a FAQ document that answers the questions concerning conservation compliance. Only the Department can provide answers that will give producers confidence in the safe harbors provided by the law and regulation.

Response: The 2014 Farm Bill states that ineligibility for Federal crop insurance premium subsidy due to a violation of the conservation compliance provisions shall apply to reinsurance years subsequent to the date of final determination of a violation, including all administrative appeals. The requirement that producers file their AD-1026 form by June 1 did not come into effect until June 1, 2015, more than a year after enactment of the 2014 Farm Bill. RMA, FSA, NRCS, agents and approved insurance providers have been conducting a significant effort to inform all producers of the conservation compliance requirement so that any producers not in compliance would have an opportunity to get into compliance prior to June 1, 2015.

Since FCIC does not administer the conservation compliance provisions or make determinations of compliance, as stated above, the details regarding the additional time afforded certain producers to comply with the provisions and how administrative appeals affect a final determination of violation are contained in an amendment to the regulations at 7 CFR part 12.

However, the Food Security Act of 1985 and the 2014 Farm Bill provide an exemption for persons who act in good faith and without intent to commit a violation. The exemption allows such persons to remain eligible for Federal crop insurance premium subsidy for a period of time if the person is taking action to remedy the violation. The determination of whether a person acted in good faith and without intent to violate the provisions is part of the administrative appeals process. Therefore, a person who meets the requirements of the good faith exemption would not have a final determination of violation unless they do not take the appropriate steps to remedy the violation within the established time period. The person would not be ineligible for Federal crop insurance premium subsidy until a final determination of violation is made. The details of the good faith exemption are contained in an amendment to the regulations at 7 CFR part 12. No change has been made in this final rule.

Comment: A commenter supported the provision in the rule for beginning farmers and ranchers concerning the deadline for filing the form AD-1026. While all other insureds must file a form AD-1026 by June 1 of any reinsurance year to be eligible for premium assistance in the next reinsurance year, beginning farmers that have not had any insurable interest in a crop or livestock operation previously, and started farming after the beginning of the new reinsurance year, have until the sales closing date to file an AD-1026. In effect, this allows a new entrant to farming the same access to premium assistance as established farmers, up until the sales closing date. While the commenter did not believe that there is any provision in the 2014 Farm Bill or in prior law that specifically authorizes this flexibility to beginning farmers and ranchers, the commenter believed that it has merit and is fair to this special group of producers.

Response: FCIC agrees with the commenter that the exception to the requirement to have form AD-1026 on file on or before June 1 prior to the sales closing date for certain producers who were not previously engaged in farming is needed and is not inconsistent with the statutory requirements. Such producers would not have known of the requirement to file an AD-1026 form by June 1 and, therefore, they cannot be penalized for non-compliance. However, the term “beginning farmer or rancher” has a specific definition that will result in the exception not being applied as intended. The intent of the exception is to provide producers who are new to or began farming for the first time after the June 1 deadline the ability to remain eligible for premium subsidy the subsequent reinsurance year. “Beginning farmer or rancher” can include producers who have been farming for a few years. Therefore, in order for the exception to be applied as intended, the reference to “beginning farmer or rancher” will be changed to reference producers who begin farming for the first time after June 1. The needed changes were provided in the Special Provisions of the applicable crop insurance policies until this final rule was published. FCIC has issued administrative procedures that describes what constitutes beginning farming for the first time, and how producers without form AD-1026 on file can self-certify that such a situation applies to them in procedures. Producers may only qualify for this exception for one year and must have form AD-1026 on file by the following June 1 to remain eligible for premium subsidy in subsequent reinsurance years. Therefore, FCIC has incorporated this change in section 6(f)(2)(i) of the CAT Endorsement, section 7(h)(2)(i) of the CCIP Basic Provisions, and section 7(i)(2)(i) of the ARPI Basic Provisions of this final rule and will remove the Special Provisions statement after this final rule is published.

Section 11007

Comment: A commenter stated the current definition of enterprise unit is “All insurable acreage of the same insured crop in the county in which you have a share on the date coverage begins for the crop year, provided the requirements of section 34 are met.” With the new allowance for enterprise units by irrigation practice, the commenter does not believe this definition is sufficient. The commenter recommended FCIC revise the enterprise unit definition in the CCIP Basic Provisions as follows: “All insurable acreage of the same insured crop or crop/irrigation practice, when allowed by the actuarial documents, in the county in which you have a share on the date coverage begins for the crop year, provided the requirements of section 34 are met.”

Response: FCIC agrees and has revised the definition to take into account that separate enterprise units are allowed for all irrigated acreage and non-irrigated acreage of the crop in the county.

Comment: A commenter stated when the option for enterprise unit coverage was introduced in the 2008 Farm Bill, it quickly gained popularity across the Cotton Belt. The new farm law enhances enterprise unit coverage by providing the ability to separate irrigated and non-irrigated acres when using enterprise unit coverage. However, the commenter understood that this provision will only be available when a producer has the ability to qualify for enterprise unit coverage for both their irrigated acreage and non-irrigated acreage. If a producer cannot qualify for enterprise unit coverage on both practices, that producer would then have a common enterprise unit. The commenter recommended FCIC implement the new enterprise unit provisions with greater flexibility than the commenter understood to be the case. Specifically, if a producer qualifies for enterprise unit coverage for a single practice, the producer should be allowed to select enterprise unit coverage for that practice, without impacting his ability to choose the most appropriate unit structure, be it a separate enterprise unit or optional units that meets the needs of his operation under the other practice. This would allow producers to utilize the law's intent of separating by practice and also prevent them from being penalized simply because a portion of their acreage does not meet the enterprise unit size requirements.

Another commenter stated in § 457.8, in section 34 of the CCIP Basic Provisions, the units provision, if a producer elects to insure dry land acreage planted to a specific commodity by enterprise unit, the producer is then also required under the interim rule to insure any irrigated acreage planted to that commodity by enterprise unit. The authority for separate enterprise units by practice, section 11007 of the Farm Bill, provides: “(D) Nonirrigated crops.—Beginning with the 2015 crop year, the Corporation shall make available separate enterprise units for irrigated and nonirrigated acreage of crops in counties.” The purpose of the provision is to require FCIC to make separate enterprise units available to irrigated and dry land acreage planted to a commodity but to allow the producer to elect enterprise units for both or either. As a matter of policy, assuming minimum acreage requirements are met, allowing a producer to elect to insure irrigated acreage of a commodity by enterprise unit and to elect to insure dryland acreage planted to a commodity by optional or basic units or vice-versa still achieves the risk-reducing intent of enterprise units because one practice has been insured by enterprise unit rather than optional or basic units. Denying a producer the election to insure one practice by an enterprise unit and the other practice by optional or basic units may frustrate the goal of providing more options for producers by forcing the producer to insure both practices by optional or basic units. Importantly, the premium support connected with enterprise units would be unchanged by a producer's election of enterprise units for one practice and optional or basic units for the other because the premium support for enterprise units is fixed in statute and optional or basic units have already been appropriately rated.

If the purpose of section 11007 is fully effectuated, the commenter believed that the risk-reducing intent of enterprise units will be furthered, not diminished. Producers will have a more complete set of options for how best to manage risk, consistent with the goal of the Farm Bill. The commenter respectfully urged that the purpose of section 11007 of the Farm Bill be implemented accordingly.

Another commenter, regarding the proposed implementation of the “Enterprise Unit by Practice” provision, stated they believed that the proposed rule does not provide the degree of flexibility the commenter expected in this provision. The commenter strongly supported the provision based on their understanding that producers would be able to select the enterprise unit structure for a single practice (i.e.—non-irrigated), as long as acreage insured under that practice meets the minimum requirements to be a stand-alone enterprise unit, without compromising their ability to select a different or more suitable unit structure for a different practice (i.e.—irrigated). This flexibility provides the insured the ability to match the most appropriate insurance unit structure to the predominant risk associated with a given practice. The commenter believed the current interpretation of the provision by FCIC does not fully recognize the intent of Congress to provide meaningful flexibility to program participants. Given that the overarching goal of this provision is flexibility, the commenter believed any concern or intent from Congress to implement the provision in a more restrictive manner as FCIC has proposed would have been specifically indicated in the legislative language. The commenter urged FCIC to reconsider their current interpretation in light of this commentary and revise this provision accordingly.

Response: The text of Section 11007 states that “the Corporation shall make available separate enterprise units for irrigated and nonirrigated acreage of crops in counties.” Under the plain meaning of the text, this means two separate enterprise units. Therefore, FCIC has made changes to allow separate enterprise units (not policies) by practice, i.e. one enterprise unit for irrigated acreage and one enterprise unit for non-irrigated acreage. Since the provision provides for two enterprise units and does not change or otherwise modify the definition of an enterprise unit, FCIC interpreted this to mean that the existing regulation for an enterprise unit remained overarching and that all acreage of the crop in the county had to be insured as an enterprise unit regardless of construct as a single enterprise unit or two separate enterprise units, one for all the irrigated acreage in the county and one for all the non-irrigated acreage in the county. To allow producers to choose smaller unit structures on some acreage of the crop in the county, such as optional and basic units, for one of the practices is counter to this intent. In addition, allowing an enterprise unit for one practice and another unit structure for the other practice complicates program administration and premium subsidy determination. Enterprise unit subsidies are based on the average enterprise unit discount received by growers. The enterprise unit discounts themselves are affected by the size of the unit—the larger the acreage in an enterprise unit, the greater the discount (and vice-versa). As growers are given additional flexibility to reduce the size (less acres) of their enterprise unit, then the enterprise unit discount becomes smaller. This brings into question whether the premium subsidy rates offered for enterprise units would need to be revised downward accordingly. To the extent that the average size of enterprise units moves closer towards the average size of optional units, the premium subsidy rates for enterprise units must also move closer towards the premium subsidy rates for optional units. No change has been made.

Comment: A commenter stated the interim rule stipulates timelines for implementing separate enterprise units and coverage levels for irrigated and dryland acreage. These provisions will greatly benefit growers in areas that utilize irrigated agriculture. Producers who use both practices in their operations are currently unable to fully realize the benefits of using enterprise units due to the wide variation in production between their irrigated and non-irrigated crops. As producers in Texas have faced multiple years of extreme drought, their dryland yields have plummeted, bringing enterprise unit yields down significantly even though the irrigated acreage was not as severely affected. The result is reduced coverage and crop insurance policies that do not reflect average production. The ability to have separate, distinct levels of coverage on irrigated and non-irrigated acres will allow farmers to create a better risk management plan for their operation. The commenter urged FCIC to implement this provision as soon as possible. By delaying the implementation of these provisions until spring of 2015, FCIC has put winter wheat producers at a distinct disadvantage to growers of other crops.

Response: The changes mandated by the 2014 Farm Bill impact almost all county crop programs within the Federal crop insurance program. Unfortunately, given the magnitude of the work required, FCIC was unable to implement the provision for crops with a contract change date prior to November 30, 2014. The actuarial documents specified the ability to make this election beginning with 2015 crop year spring crops with a contract change date of November 30, 2014, and later.

Comment: A commenter stated they identified a major flaw in section 34(a)(4)(viii)(C)(1) of the CCIP Basic Provisions as currently proposed. This section needs to be clarified to indicate that if the insured does not qualify for enterprise units by practice that he or she then has to automatically default to enterprise unit, provided that he or she qualifies for such unit structure on a crop basis. If it is subsequently determined that the insured does not qualify for enterprise unit either, the unit structure would then revert to basic units or optional units, whichever the insured reports on the acreage report and qualifies for. There should not be an option for the insured to not elect to have enterprise unit simply because he or she does not qualify for enterprise units by practice up to the acreage reporting date. The rationale for this is that the insured has to make the decision to elect enterprise units or enterprise units by practice by the sales closing date. Therefore, if the insureds do not qualify for enterprise units by practice the commenter felt it should not allow insureds the opportunity to not have enterprise units up to the acreage reporting date. There are valid reasons for requiring the enterprise units or enterprise units by practice election by the sales closing date and if this provision is not revised it would allow insureds the opportunity to elect enterprise units by practice by the sales closing date, even if they know that they will not qualify for such election, and then have the option to decide by the acreage reporting date if they want to go with enterprise units or change to basic or optional units, whichever they qualify for. The current language as structured allows insureds the opportunity to circumvent the sales closing date deadline for this election which is counter to the requirement that this election be made by the sales closing date. It creates an unintended loophole that producers could use to circumvent the sales closing date deadline for this election. If this provision is not changed it subjects the Approved Insurance Providers to possible adverse selection by producers since they would now be allowed to decide if they want to have enterprise units up to the acreage reporting date. In summary, the commenter stated the proper way to administer this provisions is to automatically apply enterprise units if the insured does not qualify for enterprise units by practice and then revert to basic or optional units if the insured does not qualify for enterprise units either (similar to how the commenter would handle this if it was discovered after the acreage reporting date except that optional units would also be an option in addition to basic units).

Response: FCIC disagrees with the commenter. There is nothing in the policy that requires the election of unit structure by the sales closing date. Such decisions have always been made by the acreage report once the producer knows what crops/types/practices have been used. It is impossible to make such determinations by the sales closing date. However, to protect program integrity, coverage levels must be selected by the sales closing date because there is always a potential for loss before the acreage reporting date and it would adversely affect program integrity to allow producers to change their coverage level after a loss has occurred. Even though the producer may request separate coverage levels if authorized by type or practice, it cannot be binding on the producer because the producer may elect not to plant to one of the selected types or practices. This will not be known until the crop is planted, which may be months after the sales closing date. Allowing the insured to choose, before the acreage reporting date, one enterprise unit, or basic or optional units depending on which the insured has reported on the acreage report, allows flexibility for those insureds who would not have elected one enterprise unit but for the new enterprise unit by practice election. Removing this flexibility may deter insureds from electing separate enterprise units by practice. FCIC does not allow this flexibility after the acreage reporting date. If after the acreage reporting date, an insured who elected separate coverage levels by practice does not qualify is automatically applied basic or optional units, depending on which they have reported on their acreage report. No change has been made.

Section 11009

Comment: A commenter stated their reading of the regulation indicates that USDA is limiting the use of actual production history (APH) based on production data availability. The commenter strongly recommended that APH Yield Adjustment Option be implemented for all producers without delay. This is an important provision especially for very progressive farms that have excellent production results.

Another commenter stated erosion of APH due to consecutive years of disaster is an issue the wheat industry has been fighting for many years. With wheat being grown in some of the most diverse regions of the country, wheat farmers can be devastated with drought, floods or freezes in any given year. This provision would be very beneficial to wheat growers across the country, primarily in areas where they are dealing with multi-year disasters. FCIC announced that this provision will not be available for the 2015 crop year which has left a number of wheat farmers frustrated. The commenter would appreciate FCIC doing everything in its power to make this provision available to our growers for 2015. The commenter is specifically concerned over continued economic injury to those who can least afford it after years of financial stress due to ongoing drought. The commenter believed this provision will go a long way toward their goal of ensuring a producer is paying for coverage that matches his or her production expectation.

Another commenter stated this provision will provide immediate relief to farmers who have suffered from multiple years of extreme weather disasters. The provision is not likely to trigger frequently, but will aid farmers in disaster areas to secure crop insurance coverage that meets average production estimates. A delay in implementation for the APH provision will result in one more year of eroding APH levels for growers across the Southern Plains region who are currently experiencing a record breaking, multiple year drought. The APH provision should be implemented immediately to adequately protect farmers and maintain the strength of the crop insurance program. As several key farm policy leaders have mentioned, if the provision cannot be implemented in 2015 for all areas and all crops, the commenter urged FCIC to target those areas most likely to benefit from the provision.

Another commenter stated they appreciated FCIC's work in making other provisions included in the 2014 Farm Bill applicable for the 2015 insurance year including: The ability to insure at different coverage levels by practice; enterprise unit coverage by practice; and the beginning farmer provisions. One provision that FCIC has indicated will not be available in 2015 is the APH adjustment. This provision is especially important for portions of the Cotton Belt who have recently incurred several years of historic drought conditions. Again, with insurance being the foundation of risk management for cotton producers, the commenter urged FCIC to continue to review every avenue possible for implementation of this important provision.

Another commenter stated concerning the implementation of section 11009 of the 2014 Farm Bill allowing insureds to exclude certain yields, the commenter understood there has been considerable discussion regarding the feasibility of an implementation in time for the 2015 reinsurance year. The commenter also supported the provision and its timely implementation and the commenter offered their expertise and their agent members in assisting to achieve this objective that is so important to producers struck by natural disasters, particularly the drought-stricken producers of recent years.

A commenter stated “Section 11009—The “APH Adjustment” provision is one that is of particular importance to the commenter's membership and is among their top priorities for implementation. Based on previous statements from FCIC, the commenter continues to be concerned that this provision will not be implemented in time for the 2015 insurance year. The commenter appreciated FCIC's willingness to continue to evaluate possible avenues for partial implementation of the provision for those regions of the country that are most impacted by the current drought and for which this provision was intended to provide relief. The commenter believed that FCIC is making progress in this regard as it has become clear in recent weeks that FCIC has performed a significant amount of data collection and analysis in high impact regions. Based on these observations the commenter believes that FCIC can realistically implement this provision at a significant level for 2015. The commenter encouraged FCIC to continue to work on this issue and to make every effort to make this provision available to cotton and grain producers in the regions that are most in need, specifically Texas and Oklahoma.

Response: FCIC had a number of 2014 Farm Bill provisions that mandate a 2015 crop year implementation. In accordance with these mandates by Congress, FCIC had to devote considerable resources to this effort. Further, while many of the crop insurance provisions in the 2014 Farm Bill were found in previous versions, section 11009 was not included until the final enactment of the 2014 Farm Bill. Due to many 2014 Farm Bill programs being completed ahead of schedule, and the timing of these completions, FCIC was able to implement this provision for select spring crops for the 2015 crop year but given the sheer amount of work required to implement this provision for all crops, in all counties, by irrigated and non-irrigated practice, FCIC simply did not have the time or the resources to implement the provision for all crops and counties.

Comment: A commenter stated section 11009 of the 2014 Farm Bill allows producers to exclude historic yields when county yields were at least 50 percent below the ten-year simple average. Agricultural producers already receive generous premium subsidies in addition to favorable provisions allowing any producer to receive crop insurance subsidies regardless of the risk profile of the farmland. Basing these taxpayer-subsidized guarantees on an “actual” production history that cherry-picks the best years of production is fiscally reckless. APH should reflect the history of production actually experienced, rather than some aspirational potential harvest that would have occurred if not for the growing conditions actually experienced. The commenter suggested this provision not be implemented. If it is, the commenter suggested a surcharge be charged for every yield plug inserted in a producer's APH, to account for the likelihood of yields falling short of these artificially high guarantees.

Response: Since the provisions regarding exclusion of yields were mandated by the 2014 Farm Bill, FCIC is required by law to implement the changes. FCIC must also, by law, set premium rates sufficient to cover anticipated losses plus a reasonable reserve. FCIC has revised the premium rate calculations to account for the increase in a grower's coverage, and potential losses, due to the exclusion of certain yields from a producer's actual production history.

Comment: A commenter stated the new CCIP Basic Provisions section 5 states “. . . the per planted acre yield was at least 50 percent below the simple average of the per acre planted yield for the crop in the county for the previous 10 consecutive crop years.” The commenter does not believe FCIC intended to use different phrasing for per planted acre yield. The commenter recommended FCIC revise this section to only use the phrase “per planted acre yield” to accurately reflect that the yields to be considered are on a per-acre basis, but are limited to planted acreage.

Response: FCIC agrees with the commenter and has revised the provisions accordingly.

Section 11014

Comment: A commenter stated section 11014 of the 2014 Farm Bill reduces crop insurance premium subsidies on native sod acres in certain Midwestern states. This provision only applies to plots of land that are larger than five acres. Due to the unintended consequences and large public costs of tearing up native sod for cropland production, this threshold should be reduced to zero acres, or at a minimum, ensure that producers tear up no more than five acres across all of their farms, regardless of location, joint ownership, etc. The commenter believed taxpayers should not subsidize the conversion of sensitive cropland to crop production. Proper enforcement and monitoring of this provision should also be prioritized to ensure that taxpayer subsidies are not subsidizing risky planting decisions.

Response: The 2014 Farm Bill specifically states “The Secretary shall exempt areas of 5 acres or less”. Therefore, the 2014 Farm Bill does not provide the authority to change this threshold. FCIC has made changes to exempt a total of five acres or less per county, per producer, across all applicable insured crop policies cumulating each year until the 5-acre threshold is reached. Once a producer converts more than five acres of native sod, the reduction in benefits will apply to all native sod acreage going forward. The premium subsidy reduction of 50 percentage points is required by the 2014 Farm Bill on converted native sod. This guarantees that taxpayers will not bear the risk of the conversion of native sod acreage. No change has been made.

Comment: Several commenters stated under the interim rule, a producer could convert native sod to an annual crop not covered by their chosen crop insurance policy and choose not to insure it during the first four crop years. During the fifth crop year the producer could add the converted acres to their policy and receive full Federal crop insurance benefits. For example, a crop insurance policy in the six sodsaver states would be for corn, soybeans, and wheat. A producer could plant annual crops of sunflowers, sorghum, millet, or oats during the first four years native sod is cropped and not include them in their crop insurance policy. The fifth year they could plant corn, soybeans or wheat and receive full crop insurance benefits. A producer could alternatively plant a perennial crop, like alfalfa, during the first four years of cropping native sod, receive full premium subsidies for forage insurance, and then again in year five plant an insurable annual crop and never be subject to sodsaver disincentives.

The commenters recommended to avoid these potential loopholes, minimize taxpayer liabilities, and maintain Congressional intent, any native sod acreage converted after February 7, 2014, should be subject to sodsaver premium reductions for the first four years of Federally insured crop production. For example, a producer who converted 160 acres of native sod in March 2014 plants alfalfa on that acreage in 2014-2017, and plants Federally insured wheat in 2018 should be subject to four years of sodsaver disincentives beginning in year 2018. This would ensure that the disincentive to convert native sod to cropland is fulfilled as intended by Congress.

Response: The 2014 Farm Bill states the reduction of benefits are during the first four crop years of planting on native sod acreage. These reduction of benefits only apply to annual crops planted during the first four crop years of planting on such acreage. FCIC does not have the authority to change these requirements and make them more restrictive. Therefore, no change has been made.

Comment: Several commenters stated the sodsaver provisions define native sod as any land that has no substantiated cropping history prior to February 7, 2014. The statute reduces Federal crop insurance premium benefits by 50 percentage points following conversion of native sod, limits transitional yields to 65 percent, and prohibits yield substitution during the first four years an annual crop is Federally-insured. Substantiation of cropping history should include a combination of verifiable FSA records and/or spatially-explicit data tied to those tracts. The commenters stated simply providing seed or input cost receipts with no verifiable tract-level spatial information or supporting FSA documentation should not suffice as adequate substantiation of cropping history.

A few commenters stated a fact sheet published in June titled “Native Sod Guidelines for Federal Crop Insurance” does not provide any limitation on the types of evidence that may be used to prove that land has been tilled. Instead, the guidance provides seven examples of acceptable documentation. Moreover, the interim rule stated that the absence of tillage will be “determined in accordance with information collected and maintained by an agency of the USDA or other verifiable records that you provide and are acceptable to us[. . .]” The commenters were concerned that this flexibility will result in the use of unreliable evidence of tillage. Therefore, the commenters recommended that if a producer cannot provide FSA, NRCS, or Common Land Unit documentation that demonstrates a cropping history on the land, there must be a body of spatially explicit evidence (e.g., GIS planting/harvest maps vs. simply seed or other input receipts with no verifiable spatial information) showing the cropping history clearly. The commenters strongly opposed the use of receipts and/or invoices as evidence of tillage, and the commenters urged that the rule explicitly exclude this as a form of documentation. The commenters believed third-party verification will help ensure accurate “substantiation” of prior cropping history. A commenter further recommended that the final rule explicitly exclude the use of receipts and/or invoices as documentation of tillage.

Response: FCIC agrees that the evidence for a cropping history must be tied to the specific acreage. Therefore, FCIC has removed from its issued procedures the reference to “receipts and invoices” as a form of documentation that may be used to substantiate the ground has been previously tilled for the production of a crop. In addition, FCIC has revised and issued procedures requiring the use of USDA documentation when available, including FSA and NRCS documentation.

Comment: Several commenters stated under the interim rule, crop insurance agents would determine the classification of native sod. Three significant factors make this process unworkable: Inadequate training on landscape classification, lack of access to FSA information, and conflict of interest. Crop insurance agents are trained in crop insurance regulations, coverage, and processing. Their responsibilities require considerable knowledge of a number of processes. Adding another component starkly foreign to their existing heavy workload and for one which few crop insurance agents are trained is not an effective method for processing native sod determinations. This would likely result in a significant rate of errors, leading to the need for new determinations by a trained staff of experts.

The commenters also stated that functionally, crop insurance agents have access to their own records regarding the cropping history of insured fields. However, that data often does not include the full cropping history of a field. Many fields may have data and history not accessible in insurance files. Often only FSA files have information on cropping history. This would require all crop insurance agents to contact FSA offices to obtain all information. It would simply be easier for FSA to make the determination and to remove the extra step of having the crop insurance agent make the inquiry into FSA.

For many crop insurance agents, selling crop insurance is their livelihood. Placing them in charge of making native sod determinations, what is and is not insurable, stands in a stark conflict of interest. In the free market of crop insurance, if a farmer is not happy with the decision of an agent, they can simply go to another agent. This threat of lost business for upholding the sodsaver provisions could punish crop insurance agents who do the right thing. It is unfair to place that burden on crop insurance agents. Here again, it is better to leave native sod determinations to an independent third party and in particular, to the FSA since they already possess much of the necessary data.

A few commenters stated the FSA and RMA have the ability, expertise and resources to work together to provide independent third-party verifications in a timely and accurate manner.

Response: Native sod guidelines apply to all counties in Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota. An insured's benefits are reduced if they till native sod acreage to grow an annual crop during the first 4 crop years they are covered by Federal crop insurance for that acreage. Native sod acreage is acreage that has never been tilled or that the insured cannot prove to have been previously tilled for crop production. To prove that acreage was previously tilled, the insured must provide documentation to the approved insurance provider. Acceptable documentation may include, but is not limited to:

(1) A Farm Service Agency (FSA)-578 document showing the crop that was previously planted on the requested acreage;

(2) A prior crop year's FSA-578 document showing that the requested acreage is classified as cropland;

(3) A prior crop year's Common Land Unit (CLU) Schema (RMA provides this to approved insurance providers), presented in a map format that contains the farm number, tract number, field number, CLU classification (the cropland classification code is `2'), and calculated acres by field;

(4) Receipts and/or invoices from custom planters or harvesters identifying the fields that were planted or harvested;

(5) A Natural Resources Conservation Service (NRCS) Form CPA-026e identifying the acreage with a “No” in the Sodbust column and a “Yes” in the HEL column;

(6) An NRCS Form CPA-026e identifying the acreage with a “Yes” in the Sodbust column and a determination date on or before February 7, 2014; or

(7) Precision agriculture planting records and/or raw data for previous crop years, provided such records meet the precision farming acreage reporting requirements.

Therefore, agents do not determine the classification of land as native sod but rather the acreage itself and records provided by the producer to the approved insurance providers will be the basis for such determinations. The agent's role in native sod classification is to gather the documents provided by the insured to submit to the approved insurance providers or FCIC. Since agents do not make the determination, approved insurance providers or FCIC acts as a third-party verifier. No change has been made.

Comment: A commenter was not in favor of the provisions regarding native sod. The commenter recommended the determination of whether a parcel of land is prairie, or that it once was cultivated, should be made by the USDA as opposed to crop insurance agents.

Response: Since the provisions regarding native sod contained in this rule were mandated by the 2014 Farm Bill, FCIC is required by law to implement the changes. As stated above, determinations are made based on records provided by the producer to approved insurance providers. Agents do not make the determination. No change has been made.

Comment: Several commenters stated FSA and RMA should monitor and provide publically available new breakings reports each year. This requirement was highlighted in the 2014 Farm Bill, which directs USDA to report changes in cropland acreage at the county level (including changes from non-cropland to cropland) since 2000 and on an annual basis post-enactment of the 2014 Farm Bill. The reporting requirement within Sec. 11014 Crop Production on Native Sod (Subsection C “Cropland Report”) also directs USDA to report changes in cropland acreage. While not explicitly stated, the intent of this subsection was to monitor and report changes in native sod acreage. Simply reporting annual cropland acreage does not achieve this goal and would be duplicative of other ongoing USDA cropland reporting efforts. According to USDA Bulletin—MGR-11-006, FSA should already be tracking and reporting new breakings each year.

The commenters recommended FSA and RMA work together to monitor and provide annual new breakings reports at the county-level to measure the effectiveness of these policies, maintain public transparency, and help inform future policy making decisions. This can be done in a timely and accurate manner without jeopardizing landowner confidentiality. Specifically, the commenters asked USDA to develop and maintain a county-level “data field” of new breakings with no prior cropping history as they update their IT technology infrastructure. A commenter recommended that in order to track the impact of policies on grassland loss and the resulting impacts on wildlife, FSA must produce an annual report that tracks the conversion of native grasslands into row crop production. Another commenter stated information about new land breakings should be made available to the public on an annual basis.

Response: The 2014 Farm Bill provides that a cropland report shall be required to be provided to the specific congressional committees indicating the changes in cropland acreage by county and state from year to year. Congress provided no other interpretation or intent other than what is provided in the 2014 Farm Bill. Therefore the report will be constructed according to the 2014 Farm Bill language. FSA is the lead agency in preparing the cropland acreage report because they have a more complete data set of the changes in cropland acreage. FCIC works with FSA, providing any data applicable and appropriate, to provide this report to specific congressional committees.

Comment: Several commenters stated the sodsaver provisions include a de minimis exemption for lands five acres or less. That means producers can convert up to five acres of their land without being subject to sodsaver provisions. The interim rule is unclear whether this five-acre exemption is annual or cumulative over time. The intent of this de minimis provision was not to encourage conversion of five acres of native sod for a particular tract in year one, five more acres in year two, five more acres in year three, etc. Instead, it was intended to minimize conversion of native sod, like in the case of field round-outs, and avoid slowly converting native tracts over time.

The commenters recommended a cumulative five-acre limit apply to all land that the producer is a property owner, operator, or tenant, similar to current FSA policy for conservation compliance provisions.

Response: FCIC agrees that the interim rule was ambiguous. FCIC also agrees that the actual text and intent of the provision in the 2014 Farm Bill is to discourage conversion of native sod and to make this determination on an annual county and crop basis would allow the continued slow conversion over time. Therefore, FCIC has determined native sod acreage will be determined on a cumulative basis over time by county. FCIC procedures will be revised to require producers to report native sod acreage by insured crop of five acres or less beginning with the 2017 crop year. Once a producer breaks out more than five acres cumulatively across all insured crops dating back to the 2015 crop year, the provisions for reduced benefits due to converting native sod will be applied to the current crop year's insured native sod acreage and to any native sod acreage broken out in all subsequent crop years.

Comment: A commenter supported the provision that indicates the de minimis acreage for the native sod provision to apply is five acres. This was in the earlier statutory provisions where the new sodsaver provisions were inserted, so the five acre minimum continues to apply.

Response: FCIC agrees with the commenter and has retained the five-acre de minimis provision in the final rule but has also made revisions so that the five-acre rule applies on a cumulative basis over time by county.

Comment: A commenter stated they are glad that the rule appears to have incorporated the legislative provisions for sodsaver very effectively. The rule includes a new definition of “native sod” that references: (1) Absence of tillage; and (2) vegetative plant cover of native grasses, forbs, or shrubs as well as the trigger date of February 7, 2014, concerning potential violation. It also includes the specific listing of states covered by this aspect of the rule and removes the prior provision of the “Prairie Pothole National Priority Area” and the option formerly available for governors in those states. In the rule, if the native sod acreage is located in any of the listed states of Iowa, Minnesota, North Dakota, South Dakota, Nebraska, and Montana and tilled and planted, after February 7, 2014, to an annual crop during the first four crop years the rule reduces the insurance liability to be 65 percent of the protection factor and reduces the premium subsidy by 50 percentage points. The rule indicates that if the premium subsidy applicable to these acres is less than 50 percent before the reduction, then no premium subsidy at all would be available. However, the commenter did not find anything in the rule that bars yield substitution as specified in the native sod statutory provisions. While the commenter supported what is provided for native sod in the interim rule, they urged FCIC to include in the final rule the bar on yield substitution for violations and consider an amendment to the interim rule to include this important statutory provision.

Response: FCIC agrees with the commenter that the 2014 Farm Bill required yield substitution be disallowed on native sod acreage. However, by restricting the native sod acreage yield guarantee to 65 percent of the insured's applicable transitional yield, yield substitution cannot be utilized on native sod acreage because yield substitution is only applicable when the actual yields in the insured's production history database are less than 60 percent of the applicable transitional yield. Therefore, yield substitution would not be applicable to native sod acreage. To avoid any confusion, FCIC did not include this restriction to yield substitution in the interim rule and it is not necessary in the final rule. No change has been made.

Comment: A commenter stated the language in item e. of the background and in section 9(f) of the CCIP Basic Provisions indicates that section 9(e) is not applicable to acres of native sod acreage that is five acres or less in the county. The commenter stated they received additional clarification from FCIC based on the procedures issued for native sod as a part of Information Memorandum: PM-14-027 that the five acres applies on a crop and county basis. For example, if an insured tilled and planted four acres of native sod to corn and tilled and planted a different tract of four acres of native sod in the same county and year to soybeans that this would be allowable and that such acreage would not be subject to the reduction of benefits for the first four years. The language in this section of the provisions should be revised to be consistent with the procedural interpretations that are being made by the FCIC that the five-acre threshold for native sod is based on the crop and county.

Response: As stated above, FCIC has determined that to allow determinations of the five-acre threshold by crop and county was inconsistent with the 2014 Farm Bill. Instead, native sod acreage will be cumulative over time by county to prevent the scenario stated above where producers continue to slowly convert new land by simply planting the acreage to a different crop on the acreage. Once a producer breaks out more than five acres cumulatively across all insured crops dating back to the 2015 crop year, the provisions for reduced benefits due to converting native sod will be applied to the current crop year's insured native sod acreage and to any native sod acreage broken out in all subsequent crop years. Since the native sod acreage is cumulative for all insured crops by county, a specification by crop is no longer needed.

Comment: A commenter stated since the rule was not issued until July 1, 2014, producers who made investments to prepare ground for planting in 2014 had no way of knowing their decisions would result in a reduction of premium subsidies and production guarantees. Applying these penalties after-the-fact is unreasonable. The commenter proposed the rule be modified to prevent this unintended consequence by striking “and is planted to an annual crop” from section 9(e) of the CCIP.

The suggested change will also ensure that it conforms to the agency's definition of native sod (which makes no reference to a restriction on acreage being planted for crop year 2014).

Response: FCIC agrees and has revised the provisions of the CCIP Basic Provisions and the ARPI Basic Provisions accordingly.

Section 11015

Comment: A commenter stated section 11015 of the 2014 Farm Bill allows producers to receive taxpayer subsidies for separate coverage of irrigated versus non-irrigated cropland in a county. Agricultural producers have access to a suite of unsubsidized risk management options; some of the primary risk management techniques are diversification of crops, use of hybrids, and irrigation practices. Taxpayers should not subsidize risk management options that are readily available and already widely used in the private sector. At a minimum, when implementing this provision, the commenter recommended FCIC reduce the likelihood that producers shift acreage between irrigated and non-irrigated acres after this rule is finalized, a likely unintended consequence if adequate measures are not taken in advance.

Response: When enacting this provision, Congress observed that the risks relative to producing crops on dry land acreage versus irrigated acreage are considerably different, and that many insureds seek different coverage levels that are tailored to those varying risks. An insured must make an election for separate coverage levels for irrigated and non-irrigated acreage by the sales closing date and must meet all the policy requirements to insure their acreage under an irrigated practice. If the insured does not meet the policy requirements for insuring a crop under an irrigated practice by the acreage reporting date, the coverage level percentage they elected for the non-irrigated practice will be used to insure all acres qualifying for a non-irrigated practice. Therefore, FCIC does not believe there is a risk that insureds will shift acreage between irrigated and non-irrigated acreage. Insureds can only insure acreage as irrigated for which they have an adequate amount of water to irrigate as specified by good farming practices for the area. Further, they have to actually apply the irrigation water to the acreage in the recommended amounts and intervals or any subsequent loss will be considered due to poor farming practices and no indemnity may be due. No change has been made.

Comment: A commenter supported a producer's ability to purchase separate insurance for irrigated versus dry-land production. This Farm Bill provision was supported by the U.S. cotton industry and will be extremely beneficial to cotton producers. The commenter commended FCIC for making this change available for the 2015 crop year.

Response: All acreage of the crop in the county must be insured under a single policy, but producers will now have the option of selecting different coverage levels for the irrigated and non-irrigated practices.

Section 11016

Comment: A commenter strongly recommended that USDA expand incentives for beginning and young farmers and ranchers to Military Veterans and urged an increased premium subsidy for this segment of farmers.

Response: FCIC has implemented the beginning farmer and rancher provisions in a way that is fair to all military personnel and consistent with the Joint Explanatory Statement of the Committee of Conference, which states the Managers intend this section to be implemented in a manner that does not discriminate against producers who grew up on a farm or ranch, left for post-secondary education or military service, and returned to the farm or ranch. When calculating the five crop years in this section, the Managers intend that any year when a producer was under the age of 18, in post-secondary studies, or serving in the U.S. military should not be counted. The implementation of this provision has been done to give the maximum benefit possible to military veterans as allowed by law. No change has been made.

Comment: A commenter stated as the average age of farmers increase, it is imperative for U.S. agriculture to encourage more new and beginning farmers. The commenter believed the 10 percentage point premium subsidy increase for beginning farmers is an important provision that can allow a new producer to possibly purchase higher levels of coverage or provide a savings in insurance premiums that can be used for further investments. For many of these individuals, the prospect of starting an operation from the bottom up is nearly impossible due to the capital costs and credit availability. A more common practice is for new and beginning farmers to form partnerships within established operations with the intention of taking over the operation as the more established producer retires. FCIC's exclusion of these individuals by limiting the increased premium subsidy to only operations in which all of the substantial beneficial interested holders qualify as a beginning famer severely limits the reach of this provision. The commenter understood that the percentage of substantial beneficial interest holders is noted within the insurance documents. The commenter recommended that FCIC prorate the 10 percentage point increase in relation to the new and beginning farmer's percentage of substantial beneficial interest. This would allow more beginning farmers to utilize this provision and not put disadvantages on the type of partnerships that represent the only option for some beginning farmers to enter farming.

Response: Implementing the provision as suggested by the commenter would extend beginning farmer and rancher benefits to individuals who have previous farming experience and who are not the intended target of the 2014 Farm Bill. The 2014 Farm Bill defines a beginning farmer or rancher as one who has not actively operated and managed a farm or ranch with a bona fide interest in a crop or livestock as an owner-operator, landlord, tenant, or sharecropper for more than five crop years. Since the 2014 Farm Bill specifically limits benefits to producers with five crop years or less of insurable interest in any crop or livestock, no change has been made.

Comment: A commenter stated the language in item g. of the background describes the additional crop insurance incentives for beginning farmers and ranchers. This includes allowing the producer who qualifies as a beginning farmer or rancher to use the yield history from any previous involvement in a farm or ranch operation. The commenter questioned if a producer qualifies to use four years of history from another operator, can he/she pick and choose which year(s) to use or must all four years be used if he/she chooses to use such records. In addition, this item indicates that years of insurable interest can be excluded if earned while under the age of 18. The commenter questioned if it mattered when the person in question turns 18. For example, if the beginning farmer or rancher applicant turns 18 on December 31, after the crop year has already ended, the commenter questioned if he/she is able to exclude that crop year for beginning farmer or rancher purposes. The commenter questioned if the fact that he or she turned 18 during the same calendar year would disallow that year from being excluded for beginning farmer or rancher purposes.

Response: FCIC issued procedures allow a beginning farmer or rancher to use the APH of the previous producer when the beginning farmer or rancher was previously involved in the farming or ranching operation. The insured may choose how many years in which to transfer but the history being transferred must start with the most recent crop year and there must not be a break in continuity in the crop years being transferred. Therefore, there are limitations on the insured's ability to pick and choose which years to transfer. FCIC issued procedures specify that an individual may exclude a crop year as insurable interest if the insurable interest in the crop occurred while the individual was under the age of 18, which includes any crop year in which a beginning farmer or rancher turns 18.

Comment: A commenter stated FCIC needs to clarify that a non-individual insured person may qualify as a beginning farmer or rancher when all the individual substantial beneficial interest holders qualify as beginning farmers or ranchers. The commenter recommended FCIC revise the last sentence in the definition of “beginning farmer or rancher” as follows: “. . . may be eligible for beginning farmer or rancher benefits if there is at least one individual substantial beneficial interest holder and all individual substantial beneficial interest holders qualify as a beginning farmer or rancher.”

Response: FCIC agrees with commenter and has revised the definition of “beginning farmer or rancher” accordingly.

Comment: A commenter stated section 3(l)(1) of the CCIP Basic Provisions indicates that the person who qualifies as a beginning farmer or rancher can use the APH of the previous producer of the crop or livestock on the acreage he or she was previously involved with. This section of the policy should be clarified to indicate the person who qualifies as a beginning farmer or rancher can only use the year(s) he or she was a part of the decision-making or physical involvement which may not be all years of past history from the previous producer. The way this section is currently written it could be construed that all years from this other producer can be used which may not always be the case if the beginning farmer or rancher was only involved with some of those years of APH.

Response: Unlike existing transfer of APH data requirements contained in FCIC-issued procedures, the number of years of production history that may be transferred is not limited by the number of years the beginning farmer or rancher was previously involved in the other person's farming or ranching operation. However, a beginning farmer or rancher can only use another person's production history for a crop that the beginning farmer or rancher was previously involved in. Since the 2014 Farm Bill used the phrase “actual production history of the previous producer,” FCIC interprets that to include all of the years of actual production history of the previous producer on the acreage, not limited to just those years the beginning farmer or rancher was involved in the operation. If the beginning farmer or rancher was involved with the livestock, they can use the other person's livestock records. If the beginning farmer or rancher was involved with a crop, they can use the other person's crop production records. Only the production history of the specific acreage being transferred may be used by the beginning farmer or rancher. No change has been made.

Comment: A commenter recommended section 36 of the CCIP Basic Provisions should be revised to indicate that if it is later determined that the producer does not qualify as a beginning farmer or rancher, or once the producer has produced a crop for more than five years and no longer qualifies as a beginning farmer or rancher, that the excluded actual yield(s) will then change from 80 percent of the applicable transitional yield to 60 percent of the applicable transitional yield. The commenter stated this language needs to clarify that the 80 percent of the applicable transitional yield is not retained once the producer no longer qualifies as a beginning farmer or rancher.

Response: Provisions and benefits regarding beginning farmer or rancher are only applicable when a producer qualifies as a beginning farmer or rancher. Although the policy is continuous, the insured must meet the terms and conditions of the policy each crop year and must qualify for beginning farmer or rancher benefits each crop year. That means that in those years the producer qualifies as a beginning farmer and rancher, the producer will receive 80 percent of the transitional yield. However, after five years, the producer's own yields are used to establish the APH and transitional yields are no longer used. No change has been made.

Comment: A commenter recommended FCIC add a comma in section 36(c) of the CCIP Basic Provisions as follows: “. . . qualify as a beginning farmer or rancher, in which case. . .”

Response: FCIC agrees with commenter and has revised the provisions accordingly.

Section 11019

Comment: A few commenters stated the term “reinstatement” used in section 2(k)(2)(iii)(B)(3)(i) of the ARPI Basic Provisions and section 2(f)(2)(ii)(B)(3)(i) of the CCIP Basic Provisions should be defined (either added in each of the applicable Basic Provisions as a definition or included in the applicable section of each of the applicable Basic Provisions). The commenters stated this is important to define as reinstatement should not allow or require new applications to be submitted after the sales closing date, but limit reinstatement to the coverage that was terminated for which there would already be an application form on file. Allowing or requiring a new application to reinstate coverage is not necessary and could imply that changes to the coverage that was terminated is acceptable which would create a disproportionate benefit to those for whom coverage is reinstated. The commenters recommended “reinstatement” be defined as “Reinstatement of coverage will be limited to the coverage you had in place on the sales closing date for the crops that were terminated due to ineligibility for debt. No new application is required and no requests to change coverage level, change plans of insurance or add or remove options or endorsements will be accepted unless such changes were made and submitted on an application form on or prior to the sales closing date for the crop.”

Response: FCIC agrees that the applicable provisions should clarify that reinstatement is under the same terms and conditions of the policy in effect as of the date termination became effective. Currently procedures published at http://www.rma.usda.gov/bulletins/pm/2015/15-010a.pdf make this clear. However, a definition of “reinstatement” has been added to subpart U because it is applicable to ineligibility determinations, appeals, and reinstatement requests and cross references have been added to section 2(k)(2)(iii)(B)(3)(i) of the ARPI Basic Provisions and section 2(f)(2)(iii)(B)(3)(i) of the CCIP Basic Provisions.

Comment: A commenter questioned how is an approved insurance provider going to determine whether a policyholders failure to pay premium was inadvertent in section 2(k)(2)(iii)(C)(1)(i) of the ARPI Basic Provisions and section 2(f)(2)(iii)(C)(1)(i) of the CCIP Basic Provisions.

Response: On February 24, 2015, FCIC issued information memorandum PM-15-010 Late Payment of Debt procedures found at http://www.rma.usda.gov/bulletins/pm/2015/15-010a.pdf. The criteria to qualify for an approved insurance provider authorized reinstatement can be found in section 2, paragraph 2 of these procedures. Those procedures have been modified to clarify the specific conditions that approved insurance providers are required to use in making the determination. The approved insurance providers must use the requirements in section 2(f)(2)(iii)(C)(1) of the CCIP and section 2(k)(2)(iii)(C)(1) of the ARPI Basic Provisions to make this determination. Additionally, on June 30, 2015, FCIC issued the General Standards Handbook, which can be found at http://www.rma.usda.gov/handbooks/18000/ to further clarify the criteria an approved insurance provider is required to use in making a determination. No change has been made.

Comment: A commenter recommended FCIC move the current section 2(f)(2)(iii)(B)(3)(ii) of the CCIP Basic Provisions to be new a new section 2(f)(2)(iii)(B)(3) of the CCIP Basic Provisions, and combine the current sections 2(f)(2)(iii)(B)(3)(i) and 2(f)(2)(iii)(B)(3) of the CCIP Basic Provisions as a new section 2(f)(2)(iii)(B)(4) of the CCIP Basic Provisions. This organizational change sets the requirement that “there is no evidence of fraud or misrepresentation” apart from other text and appropriately makes it a key criteria for the Administrator granting reinstatement.

Response: FCIC disagrees with the commenter that the change provides improved organizational benefits to the extent that a change is warranted. The proposed changes may have adverse or unintended consequences. The proposed revision introduces new paragraph designations that are not necessary and may create the potential for additional cross-references that can lead to greater confusion and potential for inaccurate reading. No change has been made.

Comment: A commenter recommended FCIC revise section 2(f)(2)(iii)(C)(1)(iii) of the CCIP Basic Provisions as follows: “You timely made the full payment of the amount owed but the delivery of that payment was delayed, and was postmarked no more than 7 calendar days. . .” This change will clarify that this clause only provides an allowance for reinstatement following termination for a late postmarked payment; it does not allow the payment itself to be made late (e.g., a late-dated check).

Response: FCIC agrees with the commenter and has revised the provisions accordingly.

Comment: A commenter stated section 2(f)(2)(iii)(C)(3) of the CCIP Basic Provisions requires the insured to submit a written request for reinstatement by the approved insurance provider in the situations indicated in sections 2(f)(2)(iii)(C)(1)(i) through (iii). The commenter believed the insured should only be required to submit a formal written request for sections 2(f)(2)(iii)(C)(1)(i) and (ii); the insured should not have to submit a written request for section 2(f)(2)(iii)(C)(1)(iii). For section 2(f)(2)(iii)(C)(1)(iii), the insured's full payment of the premium owed should serve as the payment and an implicit request for reinstatement. For any such late payment, the insured will not know at the time the check is mailed that the payment would be delayed in postal processing which resulted in policy termination. For reinstatements under section 2(f)(2)(iii)(C)(1)(iii), the approved insurance provider will verify the insured made a timely and full payment. This approach would eliminate any need for the insured to complete a form before an approved insurance provider can accept a payment that was postmarked late.

Response: FCIC issued procedures, which can be found at http://www.rma.usda.gov/handbooks/18000/, provide the approved insurance providers the guidance and direction that satisfy the written request requirement of 2(f)(2)(iii)(C)(1)(iii). No change has been made.

Comment: A commenter suggested that the language in current section 2(f)(2)(iii)(B)(3)(i) of the CCIP Basic Provisions also be included in section 2(f)(2)(iii)(C) of the CCIP Basic Provisions. It should be clear that reinstatement, whether granted by the Administrator or an approved insurance provider, is effective at the beginning of the crop year for which this insured was determined to be ineligible.

Response: FCIC agrees and has added the same language from section 2(f)(2)(iii)(B)(3)(i) of the CCIP Basic Provisions in a new section 2(f)(2)(iii)(C)(4) of the CCIP Basic Provisions. FCIC has made the same change in a new section 2(k)(2)(iii)(C)(4) of the ARPI Basic Provisions.

Comment: A commenter stated to make the policy clear concerning the specific administrative remedies the insured is waiving, as well as to ensure the insured understands they are waiving all other administrative remedies for any reinstatement request under these provisions, the commenter recommended FCIC replace section 2(f)(2)(iv) of the CCIP Basic Provisions as follows: “You may not commence litigation or arbitration against us, obtain an administrative review in accordance with 7 CFR part 400, subpart J (administrative review), or file an appeal in accordance with 7 CFR part 11 (appeal), with respect to any determination made under section 2(f)(2)(iii)(B) or section 2(f)(2)(iii)(C).”

Response: FCIC disagrees with the commenter. Section 20 of the CCIP Basic Provisions states that if the insured and the approved insurance provider fail to agree, the insured has a right to commence litigation, arbitration, administrative review, or file an appeal against the approved insurance provider. A determination made under section 2(f)(2)(iii)(B) or section 2(f)(2)(iii)(C) of the CCIP Basic Provisions is consistent with those for which the insured has a right to pursue appeal or other recourse. FCIC has revised the provisions to clarify that determinations made by the Administrator are only appealable to National Appeals Division, and determinations made by the approved insurance provider are appealable through the arbitration process in section 20 of the CCIP Basic Provisions.

Comment: A commenter stated it is unclear from section 2(f)(2)(iv) of the CCIP Basic Provisions if an insured still has the right to appeal a determination made by RMA under section 2(f)(2)(iii)(B) to USDA's National Appeals Division. RMA's draft procedures on this section stated that appeals to the National Appeals Division were not allowed. However, the commenter believed it is questionable whether FCIC has the authority to completely prohibit insured's from appealing these determinations to the National Appeals Division. Additionally, FCIC needs to clarify that requests for reinstatements made by approved insurance providers under section 2(f)(2)(iii)(C) are not subject to arbitration. Ultimately, only RMA has the power to reinstate a policy that has been terminated, even if the request is being made by the approved insurance provider under section 2(f)(iii)(C); therefore, these determinations should not be subject to arbitration.

If National Appeals Division appeals are precluded, the commenter recommended revising section 2(f)(2)(iv) to read as follows: “You may not commence litigation or arbitration against us, obtain an administrative review in accordance with 7 CFR part 400, subpart J (administrative review), or file an appeal in accordance with 7 CFR part 11 (appeal), with respect to any determination made under section 2(f)(2)(iii)(B) or section 2(f)(2)(iii)(C).”

If National Appeals Division appeals are allowed, the commenter recommended revising section 2(f)(2)(iv) to read as follows: “Determinations made under section 2(f)(2)(iii)(B) or section 2(f)(2)(iii)(C) may only be appealed in accordance with 7 CFR part 11 (appeal). You may not commence litigation or arbitration against us, or obtain an administrative review in accordance with 7 CFR part 400, subpart J (administrative review), with respect to any determination made under section 2(f)(2)(iii)(B) or section 2(f)(2)(iii)(C).”

Response: FCIC agrees that section 2(f)(2)(iv) is ambiguous and it was only intended to preclude requests for reconsideration under 7 CFR part 400, subpart J. It was never intended to preclude an appeal to the National Appeals Division. Further, producers have the right to appeal determinations by approved insurance providers under section 20 of the CCIP Basic Provisions. The provisions have been revised accordingly.

Comment: A commenter stated the interim rule narrative item 4.g. (Federal Register page 37161) indicates that removal of the phrase “, or any portion thereof,” from current section 24(a) of the CCIP Basic Provisions is intended “. . . to remove ambiguity of the billing process and interest situations on amounts owed, and to ensure consistency in how insurance providers administer this section.” The commenter does not believe this change clarifies how interest is to accrue. For example, if the insured does not pay premium for a crop with a 7/31 billing date until 9/15, under the 2014 provisions the insured could be assessed two months interest for the period of August and September. Absent the clause in 24(a), it is now unclear whether the insured would owe interest for any portion of the month of September. Any change to current billing practices could impact approved insurance providers ability to recoup debt collection costs for the insured's late payment when full premium payment was timely made to FCIC on behalf of the insured. The commenter questioned if this phrase should be removed.

A commenter stated for the 2015 reinsurance year, FCIC continues to issue Special Provision statement number 01282, which states “In lieu of the second sentence of Section 24(a) of the Basic Provisions, for the purpose of premium amounts owed to us or administrative fees owed to FCIC, interest will start to accrue on the first day of the month following the issuance of the notice by us, provided that a minimum of 30 days have passed from the premium billing date specified in the Special Provisions.” The interim rule does not change the second sentence of 24(a). The commenter did not see a reason why this Special Provision statement could not be incorporated into the interim rule and the Special Provision statement be discontinued. However, the commenter noted that for the February 1 billing date the added provision of a minimum of 30 days does not work as there are only 28 or 29 days in the month of February. FCIC should therefore consider changing this to 28 days.

However, instead of the two changes suggested above by the commenter, ambiguity as to the precise amount of interest owed on unpaid premium billings could be eliminated by replacing the second sentence of 24(a) with the following language, which is modeled on 24(b): “For the purpose of premium amounts owed to us or administrative fees owed to FCIC, interest will start to accrue on the date that notice is issued to you for the collection of the unpaid amount. Amounts found due under this paragraph will not be charged interest if payment is made within 30 days of issuance of the notice by us.” This change not only standardizes basic provision policy language, it is also consistent with revisions to section 6(b) of the CAT Endorsement and ensures premium billing is administered uniformly because interest accrues on a daily basis for all amounts owed.

Response: Interest is accrued on a monthly basis, not daily. For example, the billing date is July 1 and the due date for payment is July 31. Interest will be included on the next bill dated August 1 if the payment is not made on or before July 31, 30 days after the notice has been issued to the policyholder. If the producer pays their bill on September 15, they are only billed interest for July and August. The interest for the month of September has not yet accrued and therefore would not be owed or included in the amount due. Because interest accrues on a monthly basis the phrase “, or any portion thereof,” is not needed. No change has been made. FCIC agrees with the commenter's suggestion to incorporate Special Provisions Statement 01282 into the policy language and has revised the language accordingly.

Comment: A commenter stated the interim rule removes the phrase “, or any portion thereof,”. However, the Farm Bill Amendment posted to RMA's Web site did not remove the word “or”. The revised section 24(a) of the CCIP Basic Provisions in RMA's Farm Bill Amendment should read: “Interest will accrue at the rate of 1.25 percent simple interest per calendar month or on any unpaid amount owed to us or on any unpaid administrative fees owed to FCIC . . .”

Response: The Farm Bill Amendment published on RMA's Web site contained an error and did not remove the word “or.” However, the interim rule provided the correct language and the word “or” was removed in the regulation. FCIC will make this correction when the amendment for this final rule is issued.

Comment: A commenter stated the interim rule indicates the phrase “, or any part thereof,” was removed from 24(b) for FCIC policies. The commenter was unaware of any Federal crop insurance policy regulation specific to “FCIC policies” and there is no such phrase in CCIP 24(b). The commenter stated FCIC should remove this item from the interim rule.

Response: For certain portions of the policy, FCIC maintains separate sections “for Reinsured Policies” and “FCIC Policies” in the Code of Federal Regulations. While no FCIC Policies are currently written, the authority to write such policies still exists and if there comes a time when such policies are needed, FCIC needs the provisions to enable it to provide such policies. Information regarding FCIC policies is only contained in the Code of Federal Regulations and is not included in the typeset policies published on the RMA Web site. Therefore, no change has been made.

Comment: A commenter stated the time limit set-forth in § 400.682(g) should be revised. An insured will always receive a notice of the amount due well before the policy is terminated and this 60 day period could potentially expire before the policy is terminated. Thus, the 60 day period should not be tied to a notice of debt. Also, until the insured receives notice that the policy has been terminated, there would really be no need for the insured to move forward with requesting relief from RMA. Therefore, we think a fairer and clearer approach to this issue would be to shorten the time period to 30 days; however, the 30 days would not begin to accrue until the insured receives notice that the policy has been terminated. The revised language would read as follows:

(3) No later than 30 days from the date of the notice from the FCIC informing the person of ineligibility due to nonpayment of a debt, the ineligible person may request consideration for reinstatement from the Administrator of the Risk Management Agency in accordance with section 2 of the CCIP Basic Provisions (7 CFR 457.8).

Response: FCIC agrees that as written, the language in § 400.682(g) can be confusing and requires further clarification. The phrase “the due date specified in the notice to the person of the amount due” could be interpreted to apply to different types of scenarios and/or notices, i.e. billing statements. FCIC intended for this phrase to only apply in situations where the insured has received notice of an amount due after the termination date (for example, an overpaid indemnity or when premium revisions occur requiring additional premium be owed and billed), meaning the ineligible person may request consideration for reinstatement no later than 60 days after the due date specified in the notice of overpaid indemnity, additional premium owed due to revisions, or any other amounts due after the termination date. FCIC has revised § 400.682(g) to state the 60-day time period starts on the due date specified in the notice to the person of the amount due in the case of an overpaid indemnity or any other amount that becomes due after the termination date. FCIC has also made the same change in the ARPI Basic Provisions and CCIP Basic Provisions.

Comment: A commenter stated the time limit set-forth in section 2(f)(2)(iii)(B)(3) of the CCIP Basic Provisions should be revised. An insured will always receive a notice of the amount due well before the policy is terminated and this 60 day period could potentially expire before the policy is terminated. Thus, the 60 day period should not be tied to a notice of debt. Also, until the insured receives notice that the policy has been terminated, there would really be no need for the insured to move forward with requesting reinstatement from RMA. Therefore, the commenter thought a fairer and clearer approach to this issue would be to shorten the time period to 30 days; however the 30 days would not begin to accrue until the insured receives notice that the policy has been terminated. The revised language would read as follows:

You submit a written request for reinstatement of your policy to us no later than 30 days from the date of the notice from the FCIC informing you of your ineligibility due to nonpayment of a debt.

The commenter stated the same comment above about the time limit for these requests that applies to section 2(f)(2)(iii)(C) of the CCIP Basic Provisions. Additionally, it makes no sense to apply the written request requirement to late postmarks that fall within the 7 day transit period. These should just be automatically reinstated by the approved insurance providers. An Appendix III code should be developed so that policies which fit these criteria are tracked, but are never actually terminated and made ineligible in the first instance. As revised, this section would read as follows:

(C) We determine that, in accordance with 7 CFR part 400, subpart U and FCIC issued procedures, one of the following two conditions are met:

(1) You submit a written request for reinstatement of your policy to us in accordance with 7 CFR part 400, subpart U and applicable procedures no later than 30 days after the termination date or the missed payment date of a previously executed written payment agreement, or the due date specified in the notice to you of the amount due, if applicable, in which you demonstrate that:

(i) You made timely payment for the amount of premium owed but you inadvertently omitted some small amount, such as the most recent month's interest or a small administrative fee or the amount of the payment was clearly transposed from the amount that was otherwise due (For example, you owed $832 but you paid $823);

(ii) You remit full payment of the delinquent debt owed to us with your request for reinstatement; and

(iii) There is no evidence of fraud or misrepresentation; or

(2) You sent the full payment to us by mail and the payment was postmarked after the termination date or other applicable due date, but received by us within 7 calendar days after the termination date or other applicable due date.

Response: As stated above, FCIC agrees that as written, the language regarding the 60 day period can be confusing and requires further clarification. FCIC has revised section 2(f)(2)(iii) of the CCIP Basic Provisions and section 2(k)(2)(iii) of the ARPI Basic Provisions to state the 60 days starts on the due date specified in the notice to the person of the amount due in the case of an overpaid indemnity or any other amount that becomes due after the termination date. Lastly, FCIC has revised the reference to “$832 but you paid $823” in section 2(f)(2)(iii)(C)(1)(ii) of the CCIP Basic Provisions to “$892 but you paid $829” for clarity and consistency purposes in accordance with Appendix III to the Standard Reinsurance Agreement and instructions for handling debt and ineligibility. Appendix III of the Standard Reinsurance Agreement allows approved insurance providers the latitude to write-off balances equal to or less than $50. Therefore, the example has been revised to reflect a difference of greater than $50.

In addition to the changes described above, FCIC has revised the definition of “approved yield” to clarify the approved yield may have yield exclusions elected under section 5 of the CCIP Basic Provisions. The definition listed exceptions or adjustments that may be made to an approved yield. Section 5, which addresses exclusion of yields should be included in this list.

FCIC has also revised the provisions in section 34(a)(5)(i)(A)(3) of the CCIP Basic Provisions. The requirement to allow separate units by irrigated and non-irrigated practice were added to enterprise units in the interim rule. FCIC inadvertently omitted allowing separate units by irrigated and non-irrigated practices for whole-farm units. FCIC published a Special Provisions statement to allow such and has incorporated this change in the final rule and will remove the Special Provisions statement after this final rule is published.

Effective Date

The Administrative Procedure Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the Federal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. One of the exceptions is when the agency finds good cause for not delaying the effective date. Delaying the effective of this rule would result in the inability of the Federal Government to implement these changes prior to the contract change date for fall planted crops, effectively delaying their implementation for an entire year. Therefore, using the administrative procedure provisions in 5 U.S.C. 553, RMA finds that there is good cause for making this rule effective less than 30 days after publication in the Federal Register. This rule allows RMA to make the changes to the General Administrative Regulations; Catastrophic Risk Protection Endorsement; Area Risk Protection Insurance Regulations; and the Common Crop Insurance Regulations, Basic Provisions in time for 2017 fall planted crops. Therefore, this final rule is effective when published in the Federal Register.

Executive Order 12866

This rule has been determined to be economically significant for the purposes of Executive Order 12866 and, therefore, it has been reviewed by the Office of Management and Budget (OMB).

Benefit-Cost Analysis

A Benefit-Cost Analysis (BCA) has been completed and a summary is shown below; the full analysis may be viewed on http://www.regulations.gov in the docket listed above. In summary, the analysis finds that changes in the rule will have an expected cost to FCIC of $115.9 million annually over a 10-year period in administration of the Federal crop insurance program. Non-quantifiable benefits of this rule include increased program integrity, additional risk management tools for producers, and incentives for beginning farmers and ranchers to participate in the Federal crop insurance program.

On February 7, 2014, the 2014 Farm Bill was enacted. As a result, FCIC revised those provisions of the General Administrative Regulations—Ineligibility for Programs under the Federal Crop Insurance Act (subpart U), Catastrophic Risk Protection Endorsement (CAT Endorsement), Area Risk Protection Insurance (ARPI) Basic Provisions, and the Common Crop Insurance Provisions (CCIP) Basic Provisions to timely implement program changes identified in Titles II and XI of the 2014 Farm Bill.

On January 2014, the Congressional Budget Office (CBO) issued its estimates for the effects on direct spending and revenues of the 2014 Farm Bill. These estimates were used as a basis for the quantifiable costs and benefits stated in this BCA.

The purpose of this rule is to amend subpart U, the CAT Endorsement, the ARPI Basic Provisions, and the CCIP Basic Provisions to implement the following changes:

Section 2611 requires those enrolled in Federal crop insurance, for certain agriculture commodities, to comply with conservation compliance requirements or forego premium subsidy. For acts or situations of non-compliance, ineligibility for premium subsidy will be applied beginning with the 2016 reinsurance year. Annually, FCIC anticipates a savings of $4.6 million as a result of this change.

Section 11007 makes available insurance coverage by separate enterprise units based on irrigated and non-irrigated acreage of a crop within a county. Annually, FCIC anticipates a cost of $53.3 million as a result of this change.

Section 11009 allows insureds to exclude any recorded or appraised yield for any crop year in which the per planted acre yield in the county is at least 50 percent below the simple average per planted acre yield for the crop in the county for the previous 10 consecutive crop years, and allows insureds in any county contiguous to a county in which an insured is eligible to exclude a recorded or appraised yield to also elect a similar adjustment. Annually, FCIC anticipates a cost of $35.7 million as a result of this change.

Section 11014 applies a reduction of premium subsidy, a reduced insurance guarantee, and eliminates substitute yields in the insurance guarantee during the first four crop years that land is converted from native sod to the production of an annual crop in the States of Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota. Annually, FCIC anticipates a savings of $11.4 million as a result of this change.

Section 11015 allows producers to elect a different level of coverage for an agricultural commodity by irrigated and non-irrigated acreage. Annually, FCIC anticipates a cost of $16.8 million as a result of this change.

Section 11016 establishes crop insurance benefits for beginning farmers and ranchers by increasing the premium subsidy available by ten percentage points, allowing the use of yield history from any previous farm or ranch operation in which they had decision making or physical involvement, and replacing a low yield in their actual production history (APH) with a yield equal to 80 percent of the applicable transitional yield. Annually, FCIC anticipates a cost of $26.1 million as a result of this change.

Section 11019 allows for the correction of errors in information obtained from the producer within a reasonable amount of time and consistent with information provided by the producer to other agencies of the Department of Agriculture subject to certain limitations for maintaining program integrity. This section also provides for the payment of debt after the termination date in accordance with procedures and limitations established by the FCIC, if a producer inadvertently fails to pay a debt and has been determined to be ineligible to participate in the Federal crop insurance program. FCIC does not believe there are any additional cost outlays resulting from this change. Therefore, FCIC believes some insureds will benefit from this change and the benefits are non-quantifiable.

Paperwork Reduction Act of 1995

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control numbers 0563-0085, 0563-0083, and 0563-0053.

E-Government Act Compliance

FCIC is committed to complying with the E-Government Act of 2002, 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.

Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.

The Federal Crop Insurance Corporation has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, the Federal Crop Insurance Corporation will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

Regulatory Flexibility Act

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act (Act) authorizes FCIC to waive collection of administrative fees from beginning farmers or ranchers and limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of Federal crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

Federal Assistance Program

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

Executive Order 12372

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

Executive Order 12988

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.

Environmental Evaluation

This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

List of Subjects in 7 CFR Parts 400, 402, 407 and 457

Administrative practice and procedure, Crop insurance, Reporting and recordkeeping requirements.

Final Rule

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation adopts as final the interim rule amending 7 CFR parts 400, 402, 407, and 457, published at 79 FR 37155 on July 1, 2014, as final with the following changes:

PART 400—GENERAL ADMINISTRATIVE REGULATIONS 1. The authority citation is added for 7 CFR part 400 to read as follows: Authority:

7 U.S.C. 1506(1), 1506(o).

2. Amend § 400.677 by adding the definition of “reinstatement” in alphabetical order to read as follows:
§ 400.677 Definitions.

Reinstatement means that the policy will retain the same plan of insurance, coverage levels, price percentages, endorsements and options the person had prior to termination, provided the person continues to meet all eligibility requirements, comply with the terms of the policy, and there is no evidence of misrepresentation or fraud.

3. Amend § 400.679 as follows: a. In paragraph (e) by adding a semicolon at the end of the paragraph; and b. Revising paragraph (g).

The revision reads as follows:

§ 400.679 Criteria for ineligibility.

(g) Has requested the Administrator, Risk Management Agency, for consideration to reinstate their eligibility in accordance with the applicable policy provisions and such request has been denied.

4. Amend § 400.682 by revising paragraph (g) to read as follows:
§ 400.682 Determination and notification.

(g) No later than 60 days after the termination date, a missed payment date of a previously executed written payment agreement, or in the case of an overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to the person of an amount due, as applicable, such ineligible person may request consideration for reinstatement from the Administrator, Risk Management Agency, in accordance with section 2 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).

PART 402—CATASTROPHIC RISK PROTECTION ENDORSEMENT 5. The authority citation for 7 CFR part 402 continues to read as follows: Authority:

7 U.S.C. 1506(l), 1506(o).

6. Amend § 402.4 as follows: a. In section 3(c) by removing the phrase “paragraph (b) above” and adding in its place the phrase “section 3(b)”; b. In section 6(a) by removing the phrase “paragraphs (f) and (h) of this section” and adding in its place the phrase “sections 6(f) and (h)”; c. In section 6(b) by removing the phrase “paragraph (f) of this section” and adding in its place the phrase “section 6(f)”; d. In section 6(c) by removing the phrase “paragraph (b) of this section” and adding in its place the phrase “section 6(b)”; e. In section 6(d) by removing the phrase “paragraph (b) of this section” and adding in its place the phrase “section 6(b)”; f. In section 6(e) by removing the phrase “paragraph (f) of this section” and adding in its place the phrase “section 6(f)”; g. In section 6(f)(2) by removing the phrase “paragraph (f)(1) of this section” and adding in its place the phrase “section 6(f)(1)”; h. Revise section 6(f)(2)(i); i. In section 6(f)(2)(ii)(A) by removing the phrase “paragraph (f)(1) of this section” and adding in its place the phrase “section 6(f)(1)”; j. In section 6(f)(2)(ii)(B) by removing the phrase “paragraph (f)(1) of this section” and adding in its place the phrase “section 6(f)(1)”; and k. In section 6(h) by removing the phrase “paragraph (f) of this section” and adding in its place the phrase “section 6(f)”.

The revision reads as follows:

§ 402.4 Catastrophic Risk Protection Endorsement Provisions.

6. Annual Premium and Administrative Fees

(f) * * *

(2) * * *

(i) Notwithstanding section 6(f)(2), if you demonstrate you began farming for the first time after June 1 but prior to the beginning of the reinsurance year (July 1), you may be eligible for premium subsidy the subsequent reinsurance year without having form AD-1026 on file with FSA on or before June 1. For example, if you demonstrate you started farming for the first time on June 15, 2015, you may be eligible for premium subsidy for the 2016 reinsurance year without form AD-1026 on file with FSA.

PART 407—AREA RISK PROTECTION INSURANCE REGULATIONS 7. The authority citation for 7 CFR part 407 continues to read as follows: Authority:

7 U.S.C. 1506(l), 1506(o).

8. Amend § 407.9 as follows: a. In section 1 by revising the definition of “beginning farmer or rancher”; b. Revise sections 2(k)(2)(iii) and (iv); c. Revise section 5(d); d. In section 5(e) by removing the phrase “areas of” and adding in its place the word “cumulative”; e. Revise section 7(i)(2)(i); f. In section 22(b) [FCIC policies] by adding the phrase “the issuance of the notice by us, provided that a minimum of 30 days have passed from” after the phrase “interest will start to accrue on the first day of the month following”; g. In section 22(a)(1) [Reinsured policies] by adding the phrase “the issuance of the notice by us, provided that a minimum of 30 days have passed from” after the phrase “interest will start to accrue on the first day of the month following”; and h. In section 31(a)(1) by removing the word “the” after the phrase “any person with a substantial beneficial interest in”.

The revisions read as follows:

§ 407.9 Area risk protection insurance policy.

1. Definitions

Beginning farmer or rancher. An individual who has not actively operated and managed a farm or ranch in any state, with an insurable interest in a crop or livestock as an owner-operator, landlord, tenant, or sharecropper for more than five crop years, as determined in accordance with FCIC procedures. Any crop year's insurable interest may, at your election, be excluded if earned while under the age of 18, while in full-time military service of the United States, or while in post-secondary education, in accordance with FCIC procedures. A person other than an individual may be eligible for beginning farmer or rancher benefits if there is at least one individual substantial beneficial interest holder and all individual substantial beneficial interest holders qualify as a beginning farmer or rancher.

2. Life of Policy, Cancellation, and Termination

(k) * * *

(2) * * *

(iii) Once the policy is terminated, it cannot be reinstated for the current crop year unless:

(A) The termination was in error;

(B) The Administrator of the Risk Management Agency, at his or her sole discretion, determines that the following conditions are met:

(1) In accordance with 7 CFR part 400, subpart U, and FCIC issued procedures, you provide documentation that your failure to pay your debt is due to an unforeseen or unavoidable event or an extraordinary weather event that created an impossible situation for you to make timely payment;

(2) You remit full payment of the delinquent debt owed to us or FCIC with your request submitted in accordance with section 2(k)(2)(iii)(B)(3); and

(3) You submit a written request for reinstatement of your policy to us no later than 60 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable.

(i) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and

(ii) There is no evidence of fraud or misrepresentation; or

(C) We determine that, in accordance with 7 CFR part 400, subpart U, and FCIC issued procedures, the following are met:

(1) You can demonstrate:

(i) You made timely payment for the amount of premium owed but you inadvertently omitted some small amount, such as the most recent month's interest or a small administrative fee;

(ii) The amount of the payment was clearly transposed from the amount that was otherwise due (For example, you owed $892 but you paid $829); or

(iii) You timely made the full payment of the amount owed but the delivery of that payment was delayed, and was postmarked no more than seven calendar days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to you of an amount due, as applicable;

(2) You remit full payment of the delinquent debt owed to us; and

(3) You submit a written request for reinstatement of your policy to us in accordance with 7 CFR part 400, subpart U, and applicable procedures no later than 30 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable; and

(4) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and

(5) There is no evidence of fraud or misrepresentation.

(iv) A determination made under:

(A) Section 2(k)(2)(iii)(B) may only be appealed to the National Appeals Division in accordance with 7 CFR part 11; and

(B) Section 2(k)(2)(iii)(C) may only be appealed in accordance with section 23.

5. Insurable Acreage

(d) Except as provided in section 5(e), in the states of Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota, during the first four crop years of planting on native sod acreage that has been tilled after February 7, 2014, such acreage may be insured if the requirements of section 5(a) have been met but will:

(1) Notwithstanding the provisions in section 6, receive a liability that is based on 65 percent of the protection factor; and

(2) For additional coverage policies, receive a premium subsidy that is 50 percentage points less than would otherwise be provided on acreage not qualifying as native sod. If the premium subsidy applicable to these acres is less than 50 percent before the reduction, you will receive no premium subsidy.

7. Annual Premium and Administrative Fees

(i) * * *

(2) * * *

(i) Notwithstanding section 7(i)(2), if you demonstrate you began farming for the first time after June 1 but prior to the beginning of the reinsurance year (July 1), you may be eligible for premium subsidy the subsequent reinsurance year without having form AD-1026 on file with FSA on or before June 1. For example, if you demonstrate you started farming for the first time on June 15, 2015, you may be eligible for premium subsidy for the 2016 reinsurance year without form AD-1026 on file with FSA.

PART 457—COMMON CROP INSURANCE REGULATIONS 9. The authority citation for 7 CFR part 457 continues to read as follows: Authority:

7 U.S.C. 1506(1) and 1506(o).

10. Amend § 457.8, in the Common Crop Insurance Policy, as follows: a. In section 1 by revising the definitions of “approved yield”, “beginning farmer or rancher”, and “enterprise unit”; b. Revise sections 2(f)(2)(iii) and (iv); c. In section 5 by removing the phrase “per acre planted” and adding in its place the phrase “per planted acre”; d. Revise section 7(h)(2)(i); e. In section 9(e) by removing the phrase “and is planted to an annual crop”; f. In section 9(f) by removing the phrase “areas of” and adding in its place the word “cumulative”; g. Under “For FCIC policies”, in section 24(b), by adding the phrase “the issuance of the notice by us, provided that a minimum of 30 days have passed from” after the phrase “interest will start to accrue on the first day of the month following”; h. Under “For reinsured policies”, in section 24(a), by adding the phrase “the issuance of the notice by us, provided that a minimum of 30 days have passed from” after the phrase “interest will start to accrue on the first day of the month following”; i. In section 25(a)(1) by removing the word “the” after the phrase “any person with a substantial beneficial interest in”; j. Revise section 34(a)(5)(i)(A)(3); and k. In section 36(c) by adding a comma after the phrase “unless you qualify as a beginning farmer or rancher”.

The revisions read as follows:

§ 457.8 The application and policy. Common Crop Insurance Policy

1. Definitions

Approved yield. The actual production history (APH) yield, calculated and approved by the verifier, used to determine the production guarantee by summing the yearly actual, assigned, adjusted or unadjusted transitional yields and dividing the sum by the number of yields contained in the database, which will always contain at least four yields. The database may contain up to 10 consecutive crop years of actual or assigned yields. The approved yield may have yield exclusions elected under section 5, yield adjustments elected under section 36, revisions according to section 3, or other limitations according to FCIC approved procedures applied when calculating the approved yield.

Beginning farmer or rancher. An individual who has not actively operated and managed a farm or ranch in any state, with an insurable interest in a crop or livestock as an owner-operator, landlord, tenant, or sharecropper for more than five crop years, as determined in accordance with FCIC procedures. Any crop year's insurable interest may, at your election, be excluded if earned while under the age of 18, while in full-time military service of the United States, or while in post-secondary education, in accordance with FCIC procedures. A person other than an individual may be eligible for beginning farmer or rancher benefits if there is at least one individual substantial beneficial interest holder and all individual substantial beneficial interest holders qualify as a beginning farmer or rancher.

Enterprise unit. All insurable acreage of the same insured crop or all insurable irrigated or non-irrigated acreage of the same insured crop in the county in which you have a share on the date coverage begins for the crop year, provided the requirements of section 34 are met.

2. Life of Policy, Cancellation, and Termination

(f) * * *

(2) * * *

(iii) Once the policy is terminated, it cannot be reinstated for the current crop year unless:

(A) The termination was in error;

(B) The Administrator of the Risk Management Agency, at his or her sole discretion, determines that the following are met:

(1) In accordance with 7 CFR part 400, subpart U, and FCIC issued procedures, you provide documentation that your failure to pay your debt is due to an unforeseen or unavoidable event or an extraordinary weather event that created an impossible situation for you to make timely payment;

(2) You remit full payment of the delinquent debt owed to us or FCIC with your request submitted in accordance with section 2(f)(2)(iii)(B)(3); and

(3) You submit a written request for reinstatement of your policy to us no later than 60 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable.

(i) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and

(ii) There is no evidence of fraud or misrepresentation; or

(C) We determine that, in accordance with 7 CFR part 400, subpart U, and FCIC issued procedures, the following are met:

(1) You can demonstrate:

(i) You made timely payment for the amount of premium owed but you inadvertently omitted some small amount, such as the most recent month's interest or a small administrative fee;

(ii) The amount of the payment was clearly transposed from the amount that was otherwise due (For example, you owed $892 but you paid $829); or

(iii) You timely made the full payment of the amount owed but the delivery of that payment was delayed, and was postmarked no more than seven calendar days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to you of an amount due, as applicable.

(2) You remit full payment of the delinquent debt owed to us; and

(3) You submit a written request for reinstatement of your policy to us in accordance with 7 CFR part 400, subpart U, and applicable procedures no later than 30 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable; and

(4) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and

(5) There is no evidence of fraud or misrepresentation.

(iv) A determination made under:

(A) Section 2(f)(2)(iii)(B) may only be appealed to the National Appeals Division in accordance with 7 CFR part 11; and

(B) Section 2(f)(2)(iii)(C) may only be appealed in accordance with section 20.

7. Annual Premium and Administrative Fees

(h) * * *

(2) * * *

(i) Notwithstanding section 7(h)(2), if you demonstrate you began farming for the first time after June 1 but prior to the beginning of the reinsurance year (July 1), you may be eligible for premium subsidy the subsequent reinsurance year without having form AD-1026 on file with FSA on or before June 1. For example, if you demonstrate you started farming for the first time on June 15, 2015, you may be eligible for premium subsidy for the 2016 reinsurance year without form AD-1026 on file with FSA.

34. Units

(a) * * *

(5) * * *

(i) * * *

(A) * * *

(3) At the same coverage level (e.g., if you elect to insure your corn and canola at the 65 percent coverage level and your soybeans at the 75 percent coverage level, the corn, soybeans and canola would be assigned the unit structure in accordance with section 34(a)(5)(v)) unless you can elect separate coverage levels for all irrigated and all non-irrigated crops in accordance with section 3(b)(2)(iii) (e.g. if you elect to insure your irrigated corn at the 65 percent coverage level you must insure your irrigated canola at the 65 percent coverage level. If you elect to insure your non-irrigated corn at the 70 percent coverage level you must insure your non-irrigated canola at the 70 percent coverage level. If you elect to insure your irrigated corn at the 65 percent coverage level and your irrigated canola at the 70 percent coverage level your unit structure will be assigned in accordance with section 34(a)(5)(v));

Signed in Washington, DC, on June 23, 2016. Brandon C. Willis, Manager, Federal Crop Insurance Corporation.
[FR Doc. 2016-15327 Filed 6-29-16; 8:45 am] BILLING CODE 3410-08-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA 2015 7491; Directorate Identifier 2015-NE-39-AD; Amendment 39-18569; AD 2016-13-05] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines Correction

In rule document 2016-14474, beginning on page 41208 in the issue of Friday, June 24, 2016, make the following correction:

§ 39.13 [Corrected]

On page 41210, in the table titled “Table 1 to Paragraph (e)—HPC Stage 8-10 Spool S/Ns”, the first row of the table should appear as follows:

1844M90G01 GWN005MF GWNBK753 GWNBS077 GWNBS497 GWNBS724 GWN005MG GWNBK754 GWNBS078 GWNBS499 GWNBS794 GWN0087M GWNBK841 GWNBS079 GWNBS500 GWNBS810 GWN0087N GWNBK842 GWNBS080 GWNBS501 GWNBS811 GWN00DGK GWNBK843 GWNBS081 GWNBS502 GWNBS812 GWN00DGL GWNBK844 GWNBS157 GWNBS609 GWNBS813 GWNBJ992 GWNBK952 GWNBS158 GWNBS610 GWNBS814 GWNBK667 GWNBK953 GWNBS159 GWNBS611 GWNBS910 GWNBK674 GWNBK954 GWNBS160 GWNBS612 GWNBS911 GWNBK675 GWNBK955 GWNBS266 GWNBS613 GWNBS912 GWNBK743 GWNBK956 GWNBS267 GWNBS614 GWNBS914 GWNBK744 GWNBK957 GWNBS268 GWNBS721 GWNBS915 GWNBK751 GWNBK958 GWNBS269 GWNBS722 GWNBS982 GWNBK752 GWNBK959 GWNBS270 GWNBS723 GWNBS983
[FR Doc. C1-2016-14474 Filed 6-29-16; 8:45 am] BILLING CODE 1505-01-D
FEDERAL TRADE COMMISSION 16 CFR Part 1 Adjustment of Civil Monetary Penalty Amounts AGENCY:

Federal Trade Commission.

ACTION:

Interim final rule.

SUMMARY:

Pursuant to the Federal Civil Penalties Inflation Adjustment Act, as amended, the Federal Trade Commission (“FTC” or “Commission”) is increasing the maximum civil penalty amounts within its jurisdiction, as required by the Federal Civil Penalty Inflation Adjustment Act Improvements Act of 2015.

DATES:

The interim final rule is effective August 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Kenny A. Wright, Attorney, Office of the General Counsel, FTC, 600 Pennsylvania Avenue NW., Washington, DC 20580, (202) 326-2907, [email protected]

SUPPLEMENTARY INFORMATION:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“Adjustment Improvements Act” or “Act”) 1 requires federal agencies to implement a “catch-up adjustment” in 2016 to address inflation since the civil penalties within their jurisdiction were last set or adjusted by statute. The law mandates that agencies perform this adjustment through an interim final rulemaking and it sets forth a specific methodology to calculate the adjustment. Following this initial catch-up adjustment, the Adjustment Improvements Act directs agencies to adjust their civil penalties for inflation every January thereafter.

1 Public Law 114-74, sec. 701, 129 Stat. 599 (2015). The Act amends the Federal Civil Penalties Inflation Adjustment Act (“FCPIAA”), Public Law 101-410, 104 Stat. 890 (codified at 28 U.S.C. 2461 note).

Commission Rule 1.98 sets forth the maximum civil penalty amounts for violations of laws enforced by the Commission that authorize civil penalties.2 These amounts reflect earlier adjustments under the Federal Civil Penalties Inflation Adjustment Act which mandated a different methodology than the Adjustment Improvements Act.

2 16 CFR 1.98.

When the Commission seeks civil penalties, it is mindful of the statutory criteria courts must apply when determining the amount of the civil penalty: “the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.” 3 Courts determining penalty amounts for violations of a final order under the FTC Act have similarly applied a multi-factor test that looks at the good or bad faith of the respondent; the injury to the public; the respondent's ability to pay; the desire to eliminate the benefits derived from the violations; and the necessity of vindicating the Commission's authority.4 The Commission also has a civil penalty leniency program for small businesses that establishes criteria the Commission will consider when determining the propriety of a penalty waiver or reduction for small businesses that are not in compliance with the law.5

3 15 U.S.C. 45(m)(1)(C). This standard applies to penalties for violations of Commission rules addressing unfair or deceptive practices issued under section 18 of the FTC Act, and to violations of other statutes that provide for civil penalties by reference to section 18.

4United States v. Reader's Digest Ass'n, 662 F.2d 955, 967 (3d Cir. 1981).

5 62 FR 16809 (Apr. 8, 1997), https://www.thefederalregister.org/fdsys/pkg/FR-1997-04-08/pdf/97-8941.pdf.

As required by the Act, the following adjusted amounts will take effect on August 1, 2016:

• Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) (premerger filing notification violations under the Hart-Scott-Rodino (HSR) Improvements Act)—Increase from $16,000 to $40,000;

• Section 11(l) of the Clayton Act, 15 U.S.C. 21(l) (violations of cease and desist orders issued under Clayton Act section 11(b))—Increase from $8,500 to $21,250;

• Section 5(l) of the FTC Act, 15 U.S.C. 45(l) (violations of final Commission orders issued under section 5(b) of the FTC Act)—Increase from $16,000 to $40,000;

• Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) (unfair or deceptive acts or practices)—Increase from $16,000 to $40,000;

• Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) (unfair or deceptive acts or practices)—Increase from $16,000 to $40,000;

• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file required reports)—Increase from $210 to $525;

• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure by associations engaged solely in export trade to file required statements)—Increase from $210 to $525;

• Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 68d(b) (failure by wool manufacturers to maintain required records)—Increase from $210 to $525;

• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e)(failure to maintain required records regarding fur products)—Increase from $210 to $525;

• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain required records regarding fur products)—Increase from $210 to $525;

• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (knowing violations of EPCA § 332, including labeling violations)—Increase from $210 to $433;

• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—Increase from $8,500 to $21,250;

• Section 525(b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(b) (willful violations of recycled oil labeling requirements)—Increase from $16,000 to $40,000;

• Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting Act)—Increase from $3,500 to $3,756;

• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, 21 U.S.C. 355 note (failure to comply with filing requirements)—Increase from $12,100 to $14,142; and

• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to federal agencies)—Increase from $1,100,000 to $1,138,330.

Calculation of Inflation Adjustments

The Adjustment Improvements Act directs federal agencies to adjust the civil monetary penalties under their jurisdiction for inflation through an initial “catch-up” cost-of-living adjustment. This catch-up adjustment is defined as the percentage by which the U.S. Department of Labor's Consumer Price Index for all-urban consumers (“CPI-U”) for the month of October 2015 exceeds the CPI-U for the month of October for the year in which the amount of the penalty was last set or adjusted pursuant to law, excluding prior adjustments under FCPIAA.6 The Adjustment Improvements Act also directs that these penalty level adjustments should be rounded to the nearest dollar. The Act provides, however, that the amount of the catch-up increase for 2016 shall not exceed 150 percent of the amount of the civil penalty in effect on November 2, 2015.

6 28 U.S.C. 2461 note (4)(b); Office of Management and Budget, M-16-06, Memorandum for the Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016), available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf. The OMB memorandum provides multipliers to adjust the penalty level based on the year the penalty was established or last adjusted pursuant to law.

Agencies do not have discretion over whether to make the initial catch-up adjustment for maximum civil penalty amounts absent a determination that the adjustment will have a negative economic impact or the social costs of the increase outweigh the benefits.7 The Commission has determined that there is no basis to conclude that these inflationary adjustments of maximum civil penalty amounts will have such effects. Accordingly, the Commission is making these adjustments as mandated.

7Id. note (4)(c).

8 Public Law 94-435, 90 Stat. 1383 (1976).

9 Public Law Public Law 86-107, 73 Stat. 243 (1959).

10 Public Law Public Law 93-153, 87 Stat. 591 (1973).

11 Public Law Public Law 93-637, 88 Stat. 2193 (1975).

12Id.

13 Public Law 63-203, 38 Stat. 717 (1914).

14 Public Law 65-126, 40 Stat. 517 (1918).

15 Public Law 76-850, 54 Stat. 1128 (1940).

16 Public Law 82-109, 65 Stat. 176 (1951).

17Id.

18 Public Law 94-163, 89 Stat. 871 (1975).

19Id.

20Id.

21 Public Law 104-208, 110 Stat. 3009 (1996).

22 Public Law 108-173, 117 Stat. 2066 (2003).

23 Public Law 110-140, 121 Stat. 1724 (2007).

Calculation of Adjustments to Maximum Civil Monetary Penalties Citation Description Baseline
  • penalty
  • Adjustment
  • multiplier
  • (year)
  • Amount after adjustment multiplier is applied to
  • baseline
  • penalty
  • Current
  • penalty
  • Subject to cap? Adjusted
  • maximum
  • 16 CFR 1.98(a) 15 U.S.C. 18a(g)(1) Premerger filing notification violations $10,000 8 4.10774 (1976) $41,077 $16,000 Yes $40,000 16 CFR 1.98(b) 15 U.S.C. 21(l) Violations of Clayton Act cease and desist orders 5,000 9 8.08973 (1959) 40,449 8,500 Yes 21,250 16 CFR 1.98(c) 15 U.S.C. 45(l) Violations of FTC Act cease and desist orders 10,000 10 5.21575 (1973) 52,158 16,000 Yes 40,000 16 CFR 1.98(d) 15 U.S.C. 45(m)(1)(A) Unfair or deceptive acts or practices 10,000 11 4.33220 (1975) 43,322 16,000 Yes 40,000 16 CFR 1.98(e) 15 U.S.C. 45(m)(1)(B) Unfair or deceptive acts or practices 10,000 12 4.33220 (1975) 43,322 16,000 Yes 40,000 16 CFR 1.98(f) 15 U.S.C. 50 Failure to file required reports 100 13 23.54832 (1914) 2,355 210 Yes 525 1.98(g) 15 U.S.C. 65 Failure to file required statements 100 14 14.86488 (1918) 1,487 210 Yes 525 1.98(h) 15 U.S.C. 68d(b) Failure to maintain required records 100 15 16.98843 (1940) 1,699 210 Yes 525 1.98(i) 15 U.S.C. 69a(e) Failure to maintain required records 100 16 9.07779 (1951) 908 210 Yes 525 1.98(j) 15 U.S.C. 69f(d)(2) Failure to maintain required records 100 17 9.07779 (1951) 908 210 Yes 525 1.98(k) 42 U.S.C. 6303(a) Knowing violations 100 18 4.33220 (1975) 433 210 No 433 1.98(l) 42 U.S.C. 6395(a) Recycled oil labeling violations 5,000 19 4.33220 (1975) 21,661 8,500 Yes 21,250 1.98(l) 42 U.S.C. 6395(b) Willful violations 10,000 20 4.33220 (1975) 43,322 16,000 Yes 40,000 1.98(m) 15 U.S.C. 1681s(a)(2) Knowing violations 2,500 21 1.50245 (1996) 3,756 3,500 No 3,756 1.98(n) 21 U.S.C. 355 note Non-compliance with filing requirements 11,000 22 1.28561 (2003) 14,142 12,100 No 14,142 1.98(o) 42 U.S.C. 17304 Market manipulation or provision of false information to federal agencies 1,000,000 23 1.13833 (2007) 1,138,330 1,100,000 No 1,138,330
    Effective Dates of New Penalties

    The Adjustment Improvements Act applies to civil penalties assessed after the effective date of the applicable adjustment, including civil penalties whose associated violation predated the effective date.24 The Act does not retrospectively change previously assessed or enforced civil penalties.

    24 Public Law 114-74, 701(b)(3) (amending section 6 of the FCPIAA).

    Procedural Requirements

    The Commission finds good cause for adopting this interim final rule without advance public notice or an opportunity for prior public comment. Advance opportunity for notice and comment are not required “when the agency for good cause finds (and incorporates the findings and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). The Adjustment Improvements Act directs agencies to promulgate the required inflation adjustments through an interim final rulemaking by no later than July 1, 2016. Pursuant to this Congressional mandate, and because the Commission must adjust its civil penalties according to the statutory formula identified in the Adjustment Improvements Act, the Commission finds that good cause exists to forego prior public notice and comment under the APA. Id. These adjustments are mandated by statute and do not involve the exercise of Commission discretion or any policy judgments. Accordingly, the Commission finds that prior public notice and comment is unnecessary. For this reason, the requirements of the Regulatory Flexibility Act (“RFA”) also do not apply.25 Finally, this rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended. 44 U.S.C. 3501 et seq.

    25 A regulatory flexibility analysis under the RFA is required only when an agency must publish a notice of proposed rulemaking for comment. See 5 U.S.C. 603.

    List of Subjects for 16 CFR Part 1

    Administrative practice and procedure, Penalties, Trade practices.

    Text of Amendments

    For the reasons set forth in the preamble, the Federal Trade Commission amends Title 16, chapter I, subchapter A, of the Code of Federal Regulations, as follows:

    PART 1—GENERAL PROCEDURES 1. Revise subpart L to read as follows: Subpart L—Civil Penalty Adjustments Under the Federal Civil Penalties Inflation Adjustment Act of 1990, as Amended Authority:

    28 U.S.C. 2461 note.

    § 1.98 Adjustment of civil monetary penalty amounts.

    This section makes inflation adjustments in the dollar amounts of civil monetary penalties provided by law within the Commission's jurisdiction. The following maximum civil penalty amounts apply only to penalties assessed after August 1, 2016, including those penalties whose associated violation predated August 1, 2016.

    (a) Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1)—$40,000;

    (b) Section 11(l) of the Clayton Act, 15 U.S.C. 21(l)—$21,250;

    (c) Section 5(l) of the FTC Act, 15 U.S.C. 45(l)—$40,000;

    (d) Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A)—$40,000;

    (e) Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B)—$40,000;

    (f) Section 10 of the FTC Act, 15 U.S.C. 50—$525;

    (g) Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65—$525;

    (h) Section 6(b) of the Wool Products Labeling Act, 15 U.SC. 68d(b)—$525;

    (i) Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e)—$525;

    (j) Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2)—$525;

    (k) Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a)—$433;

    (l) Sections 525(a) and (b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) and (b), respectively—$21,250 and $40,000, respectively;

    (m) Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2)—$3,756;

    (n) Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, 21 U.S.C. 355 note—$14,142;

    (o) Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304—$1,138,330; and

    (p) Civil monetary penalties authorized by reference to the Federal Trade Commission Act under any other provision of law within the jurisdiction of the Commission—refer to the amounts set forth in paragraphs (c), (d), (e) and (f) of this section, as applicable.

    By direction of the Commission.

    April Tabor, Acting Secretary.
    [FR Doc. 2016-15302 Filed 6-29-16; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [167A2100DD/AAKC001030/A0A501010.999900 253G] 25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243, 249 RIN 1076-AF32 Civil Penalties Inflation Adjustments AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Interim final rule.

    SUMMARY:

    This rule adjusts the level of civil monetary penalties contained in Indian Affairs regulations with an initial “catch-up” adjustment under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget (OMB) guidance.

    DATES:

    This rule is effective on August 1, 2016. Comments will be accepted until August 29, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal eRulemaking Portal: www.regulations.gov. Search for Docket No. BIA-2016-0004 and follow the instructions for submitting comments.

    Mail, Hand Delivery, or Courier: Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action—Indian Affairs, U.S. Dept. of the Interior, 1849 C Street NW., Mail Stop 3642, Washington, DC 20240.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs; telephone (202) 273-4680, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background II. Description of Changes III. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation with Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of this Regulation M. Administrative Procedure Act I. Background

    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 requires Federal agencies to adjust the level of civil monetary penalties with an initial catch-up adjustment through rulemaking and then make subsequent annual adjustments for inflation. This rule adjusts the level of civil monetary penalties within those parts of Title 25 of the Code of Federal Regulations that fall under Chapter I, the Bureau of Indian Affairs. This rule does not affect criminal penalties, such as those at 25 CFR 273.15. This rule does not affect Chapter V, Bureau of Indian Affairs, and Indian Health Service or Chapter VI, Office of the Assistant Secretary, Indian Affairs, because those chapters contain no civil monetary penalties. This rule does not affect Chapter III, National Indian Gaming Commission, or Chapter IV, Office of Navajo and Hopi Indian Relocation, because those respective offices will determine whether it is necessary to issue separate rulemakings.

    The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes. This rule adjusts the following civil monetary penalties, as calculated in accordance with the procedures described in Section II, Calculation of Adjustment:

    CFR Citation Description of penalty Current
  • penalty
  • Catchup
  • adjustment
  • multiplier
  • Adjusted
  • penalty
  • 25 CFR 140.3 Penalty for trading in Indian country without a license $500 2.50000 $1,250 25 CFR 141.50 Penalty for trading on Navajo, Hopi or Zuni reservations without a license 500 2.50000 1,250 25 CFR 211.55 Penalty for violation of leases of Tribal land for mineral development, violation of part 211, or failure to comply with a notice of noncompliance or cessation order 1,000 1.50245 1,502 25 CFR 213.37 Penalty for failure of lessee to comply with lease of restricted lands of members of the Five Civilized Tribes in Oklahoma for mining, operating regulations at part 213, or orders 500 2.50000 1,250 25 CFR 225.37 Penalty for violation of minerals agreement, regulations at part 225, other applicable laws or regulations, or failure to comply with a notice of noncompliance or cessation order 1,000 1.59089 1,591 25 CFR 226.42 Penalty for violation of lease of Osage reservation lands for oil and gas mining or regulations at part 226, or noncompliance with the Superintendent's order 500 1.78156 891 25 CFR 226.43(a) Penalty per day for failure to obtain permission to start operations 50 1.78156 89 25 CFR 226.43(b) Penalty per day for failure to file records 50 1.78156 89 25 CFR 226.43(c) Penalty for each well and tank battery for failure to mark wells and tank batteries 50 1.78156 89 25 CFR 226.43(d) Penalty each day after operations are commenced for failure to construct and maintain pits 50 1.78156 89 25 CFR 226.43(e) Penalty for failure to comply with requirements regarding valve or other approved controlling device 100 1.78156 178 25 CFR 226.43(f) Penalty for failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well 200 1.78156 356 25 CFR 226.43(g) Penalty per day for failure to properly care for and dispose of deleterious fluids 500 1.78156 891 25 CFR 226.43(h) Penalty per day for failure to file plugging and other required reports 50 1.78156 89 25 CFR 227.24 Penalty for failure of lessee of certain lands in Wind River Indian Reservation, Wyoming, for oil and gas mining to comply with lease provisions, operating regulations, regulations at part 227, or orders 500 2.50000 1,250 25 CFR 243.8 Penalty for non-Native transferees of live Alaskan reindeer who violates part 243, takes reindeer without a permit, or fails to abide by permit terms. 5,000 1.17858 5,893 25 CFR 249.6(b) Penalty for fishing in violation of regulations at part 249 (Off-Reservation Treaty Fishing). 500 2.50000 1,250
    II. Calculation of Adjustment

    The OMB issued guidance on calculating the catch-up adjustment. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Under this guidance the Department of the Interior (Department) has identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

    III. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Federal Civil Penalties Adjustment Act of 2015 requires agencies to adjust civil penalties with an initial catch-up adjustment through an interim final rule. An interim final rule does not include first publishing a proposed rule. Thus, the RFA does not apply to this final rule.

    C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

    (a) Does not have an annual effect on the economy of $100 million or more;

    (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;

    (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

    E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.

    F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

    G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. Specifically, this rule:

    (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

    (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

    H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that is has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.

    I. Paperwork Reduction Act

    This rule does not contain information collection requirements, and a submission to the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

    K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

    L. Clarity of This Regulation

    We are required by E.O. 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use common, everyday words and clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you think lists or tables would be useful, etc.

    M. Administrative Procedure Act

    The Act requires agencies to publish interim final rules by July 1, 2016, with an effective date for the adjusted penalties no later than August 1, 2016. To comply with the Act, we are issuing these regulations as an interim final rule and are requesting comments post-promulgation. Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. The Bureau of Indian Affairs (BIA) finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, BIA is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish an interim final rule and to update the civil penalty amounts by applying the specified formula. BIA has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for pre-promulgation public comment on this rule. Thus, pre-promulgation notice and public comment is impracticable and unnecessary.

    List of Subjects 25 CFR Part 140

    Business and industry, Indians, Penalties.

    25 CFR Part 141

    Business and industry, Credit, Indians—business and finance, Penalties.

    25 CFR Part 211

    Geothermal energy, Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR Part 213

    Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR Part 225

    Geothermal energy, Indians—lands, Mineral resources, Mines, Oil and gas exploration, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    25 CFR Part 226

    Indians—lands.

    25 CFR Part 227

    Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR Part 243

    Indians, Livestock.

    25 CFR Part 249

    Fishing, Indians.

    For the reasons given in the preamble, the Department of the Interior amends Chapter I of title 25 Code of Federal Regulations as follows.

    PART 140—LICENSED INDIAN TRADERS 1. The authority citation for part 140 is revised to read as follows: Authority:

    Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 140.3 [Amended]
    2. In § 140.3, remove “$500” and add in its place “$1,250”. PART 141—BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS 3. The authority citation for part 141 is revised to read as follows: Authority:

    5 U.S.C. 301; 25 U.S.C. 2 and 9; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 141.50 [Amended]
    4. In § 141.50, remove “five hundred dollars ($500)” and add in its place “$1,250”. PART 211—LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT 5. The authority citation for part 211 is revised to read as follows: Authority:

    Sec. 4, Act of May 11, 1938 (52 Stat. 347); Act of August 1, 1956 (70 Stat. 744); 25 U.S.C. 396a-g; 25 U.S.C. 2 and 9; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 211.55 [Amended]
    6. In § 211.55(a), remove “$1,000” and add in its place “$1,502”. PART 213—LEASING OF RESTRICTED LANDS FOR MEMBERS OF FIVE CIVILIZED TRIBES, OKLAHOMA, FOR MINING 7. The authority citation for part 213 is revised to read as follows: Authority:

    Sec. 2, 35 Stat. 312; sec. 18, 41 Stat. 426; sec. 1, 45 Stat. 495; sec. 1, 47 Stat. 777; 25 U.S.C. 356; and Sec. 701, Pub. L. 114-74, 129 Stat. 599. Interpret or apply secs. 3, 11, 35 Stat. 313, 316; sec. 8, 47 Stat. 779, unless otherwise noted.

    § 213.37 [Amended]
    8. In § 213.37, remove “$500” and add in its place “$1,250”. PART 225—OIL AND GAS, GEOTHERMAL AND SOLID MINERALS AGREEMENTS 9. The authority citation for part 225 is revised to read as follows: Authority:

    25 U.S.C. 2, 9, and 2101-2108; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 225.37 [Amended]
    10. In § 225.37(a), remove “$1,000” and add in its place “$1,591”. PART 226—LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING 9. The authority citation for part 226 is revised to read as follows: Authority:

    Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec. 3, 52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 226.42 [Amended]
    10. In § 226.42, remove “$500” and add in its place “$891”.
    § 226.43 [Amended]
    11. In § 226.43:
    a. Remove “$50” each time it appears and add in each place “$89” wherever it appears in this section. b. In paragraph (e), remove “$100” and add in its place “$178”. c. In paragraph (f), remove “$200” and add in its place “$356”. d. In paragraph (g), remove “$500” and add in its place “$891”. PART 227—LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN RESERVATION, WYOMING, FOR OIL AND GAS MINING 12. The authority citation for part 227 is revised to read as follows: Authority:

    Sec. 1, 39 Stat. 519; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 227.24 [Amended]
    13. In § 227.24, remove “$500” and add in its place “$1,250”. PART 243—REINDEER IN ALASKA 14. The authority citation for part 243 is revised to read as follows: Authority:

    Sec. 12, 50 Stat. 902; 25 U.S.C. 500K; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 243.8 [Amended]
    15. In § 243.8(a), remove “$5000.00” and add in its place “$5,893”. PART 249—OFF-RESERVATION TREATY FISHING 16. The authority citation for part 249 is revised to read as follows: Authority:

    25 U.S.C. 2, and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 249.6 [Amended]
    17. In § 249.6(b), remove “$500” and add in its place “$1,250”. Dated: June 24, 2016. Lawrence S. Roberts, Acting Assistant Secretary—Indian Affairs.
    [FR Doc. 2016-15534 Filed 6-29-16; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9773] RIN 1545-BM70 Country-by-Country Reporting AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations.

    SUMMARY:

    This document contains final regulations that require annual country-by-country reporting by certain United States persons that are the ultimate parent entity of a multinational enterprise group. The final regulations affect United States persons that are the ultimate parent entity of a multinational enterprise group that has annual revenue for the preceding annual accounting period of $850,000,000 or more.

    DATES:

    Effective Date: These regulations are effective June 30, 2016.

    Applicability Date: For dates of applicability, see § 1.6038-4(k).

    FOR FURTHER INFORMATION CONTACT:

    Melinda E. Harvey, (202) 317-6934 (not a toll-free number).

    SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

    The IRS intends that the information collection requirements in these regulations will be satisfied by submitting a new reporting form, Form 8975, Country-by-Country Report, with an income tax return. For purposes of the Paperwork Reduction Act, the reporting burden associated with the collection of information in these regulations will be reflected in the OMB Form 83-1, Paperwork Reduction Act Submission, associated with Form 8975.

    Background

    This document contains amendments to 26 CFR part 1. On December 23, 2015, a notice of proposed rulemaking (REG-109822-15) relating to the furnishing of country-by-country (CbC) reports by certain United States persons (U.S. persons) was published in the Federal Register (80 FR 79795). A public hearing was requested and was held on May 13, 2016. Comments responding to the notice of proposed rulemaking were received. After consideration of the comments, the proposed regulations are adopted as amended by this Treasury decision. The public comments and revisions are discussed below.

    Summary of Comments and Explanation of Revisions 1. United States Participation in CbC Reporting

    Multiple comments expressed support for the implementation of CbC reporting in the United States. However, one comment recommended that the Treasury Department and the IRS decline to implement CbC reporting because, according to the comment, U.S. multinational enterprise (MNE) groups' direct costs of compliance will exceed the United States Treasury's revenue gains, and there will be high, unanticipated costs from inadvertent disclosures of sensitive information. This recommendation is not adopted. U.S. MNE groups will be subject to CbC filing obligations in other countries in which they do business if the United States does not implement CbC reporting. Thus, a decision by the Treasury Department and the IRS not to implement CbC reporting will result in no compliance cost savings to U.S. MNE groups. In fact, failure to adopt CbC reporting requirements in the United States may increase compliance costs because U.S. MNE groups may be subject to CbC filing obligations in multiple foreign tax jurisdictions. U.S. MNE groups might also be subject to varying CbC filing rules and requirements in different foreign tax jurisdictions, such as requirements to prepare the CbC report using the local currency or language.

    In addition, CbC reports filed with the IRS and exchanged pursuant to a competent authority arrangement benefit from the confidentiality requirements, data safeguards, and appropriate use restrictions in the competent authority arrangement. If a foreign tax jurisdiction fails to meet the confidentiality requirements, data safeguards, and appropriate use restrictions set forth in the competent authority arrangement, the United States will pause exchanges of all reports with that tax jurisdiction. Moreover, if such tax jurisdiction has adopted CbC reporting rules that are consistent with the 2015 Final Report for Action 13 (Transfer Pricing Documentation and Country-by-Country Reporting) of the Organisation for Economic Co-operation and Development (OECD) and Group of Twenty (G20) Base Erosion and Profit Shifting (BEPS) Project (Final BEPS Report), the tax jurisdiction will not be able to require any constituent entity of the U.S. MNE group in the tax jurisdiction to file a CbC report. The ability of the United States to pause exchange creates an additional incentive for foreign tax jurisdictions to uphold the confidentiality requirements, data safeguards, and appropriate use restrictions in the competent authority arrangement.

    2. Form 8975, Country-by-Country Report

    At the time of publication of the proposed regulations, the country-by-country reporting form described in the proposed regulations had not been officially numbered and was referred to in the proposed regulations as Form XXXX, Country-by-Country Report. The country-by-country reporting form remains under development but has been officially numbered. The final regulations amend the proposed regulations to reflect the official number of the form, Form 8975, Country-by-Country Report, (Form 8975 or CbCR).

    3. Constituent Entities and Persons Required To File Form 8975

    In the preamble to the proposed regulations, the Treasury Department and the IRS requested comments regarding whether additional guidance was needed for determining which U.S. persons must file Form 8975 or which entities are considered constituent entities of the filer. Specifically, the Treasury Department and the IRS requested comments on whether additional guidance on the definition of a U.S. MNE group was necessary to address situations where U.S. generally accepted accounting principles (GAAP) or U.S. securities regulations permit or require consolidated financial accounting for reasons other than majority ownership, as well as situations, if any, where U.S. GAAP or U.S. securities regulations permit separate financial accounting with respect to majority-owned enterprises.

    A. Variable Interest Entities

    Multiple comments addressed the inclusion of variable interest entities (VIEs) as constituent entities that are part of the U.S. MNE group. In general, a VIE may be consolidated with another entity for financial accounting purposes, even though that other entity may not control the VIE within the meaning of section 6038(e). Some comments recommended against expanding the definition of a U.S. MNE group to include VIEs and further recommended that, if those entities are nonetheless included, an exception should apply in cases in which the U.S. MNE group is unable to obtain the necessary information from a VIE. Other comments expressed concern that entities like VIEs would be part of the MNE group for purposes of foreign law relating to CbC reporting and, for consistency with such law, recommended that U.S. MNE groups be permitted to include such entities. Still other comments recommended that the definition of constituent entity should not be limited to majority-owned entities and should be expanded to include entities in which the ultimate parent entity owns, directly or indirectly, a 20-percent or greater equity interest.

    The final regulations do not modify the definition of constituent entity in the proposed regulations. Because the final regulations are promulgated under the authority of section 6038, the definition of control in section 6038(e) limits the foreign business entities for which U.S. persons can be required to furnish information. Thus, the information described in § 1.6038-4(d)(1) and (2) is not required for foreign corporations or foreign partnerships for which the ultimate parent entity is not required to furnish information under section 6038(a) (determined without regard to §§ 1.6038-2(j) and 1.6038-3(c)) or any permanent establishment of such foreign corporation or foreign partnership.

    B. Permanent Establishments

    Under proposed § 1.6038-4(b)(2), a business entity includes a business establishment in a jurisdiction that is treated as a permanent establishment under an income tax convention to which that jurisdiction is a party, or that would be treated as a permanent establishment under the OECD Model Tax Convention on Income and on Capital 2014 (OECD Model Tax Convention), and that prepares financial statements separate from those of its owner for financial reporting, regulatory, tax reporting, or internal management control purposes. One comment recommended that the reference to the OECD Model Tax Convention be revised to account for changes to the definition of permanent establishment that will be incorporated into the OECD Model Tax Convention as a result of work under Action 7 (Preventing the Artificial Avoidance of Permanent Establishment Status) of the BEPS Project.

    Upon further consideration, and taking into account the comment received, the Treasury Department and the IRS have determined it would be more appropriate for the final regulations to modify the proposed regulations' reference to a permanent establishment in the definition of business entity for greater clarity and consistency with the intended meaning of the Final BEPS Report. Accordingly, the final regulations provide that the term permanent establishment includes (i) a branch or business establishment of a constituent entity in a tax jurisdiction that is treated as a permanent establishment under an income tax convention to which that tax jurisdiction is a party, (ii) a branch or business establishment of a constituent entity that is liable to tax in the tax jurisdiction in which it is located pursuant to the domestic law of such tax jurisdiction, or (iii) a branch or business establishment of a constituent entity that is treated in the same manner for tax purposes as an entity separate from its owner by the owner's tax jurisdiction of residence. This approach is more consistent with the Final BEPS Report and generally would avoid the need for a U.S. MNE group that has already determined under applicable law whether it has a permanent establishment or a taxable business presence in a particular jurisdiction to make another determination under the OECD Model Tax Convention solely for purposes of completing the CbCR.

    C. Grantor Trusts and Decedents' Estates

    Proposed § 1.6038-4(b)(2) defines a business entity as a person, as defined in section 7701(a)(1), that is not an individual. Under this definition, a grantor trust with an individual owner or owners would be a business entity that could be subject to CbC reporting, notwithstanding that the individual owner or owners are generally treated as the owner of the grantor trust's property for federal income tax purposes and would not be subject to CbC reporting if they owned the property directly. Similarly, under the proposed regulations, a decedent's estate would be a business entity that could be subject to CbC reporting, notwithstanding that during the decedent's lifetime, he or she was an individual exempt from CbC reporting. Additionally, under the proposed regulations, an individual's bankruptcy estate would be a business entity that could be subject to CbC reporting, notwithstanding that before entering bankruptcy, the individual debtor would not be subject to CbC reporting. In light of the nature of grantor trusts, decedents' estates, and individuals' bankruptcy estates and their close connection to individual grantors, decedents, and individual debtors, the Treasury Department and the IRS have determined that it is not appropriate to include grantor trusts with only individual owners, decedents' estates, and individuals' bankruptcy estates in the definition of business entity. Accordingly, the final regulations exclude decedents' estates, individuals' bankruptcy estates, and grantor trusts within the meaning of section 671, all the owners of which are individuals, from the definition of business entity.

    D. Deemed Domestic Corporations

    The proposed regulations define a U.S. business entity as a business entity that is organized, or has its tax jurisdiction of residence, in the United States. One comment requested that the final regulations clarify whether companies that elect to be treated as domestic corporations under section 953(d) will be treated as U.S. business entities resident in the United States. In response to this comment, the final regulations expressly provide that foreign insurance companies that elect to be treated as domestic corporations under section 953(d) are U.S. business entities that have their tax jurisdiction of residence in the United States.

    4. National Security Exception

    The preamble to the proposed regulations requested comments on the need for a national security exception for reporting CbC information and on procedures for a taxpayer to demonstrate that such an exception is warranted. Multiple comments stated that the information provided on a CbCR does not present a national security concern. Other comments recommended that the final regulations include a national security exception but did not recommend an appropriate scope of the exception or procedures to demonstrate that an exception is warranted in a particular case. One comment recommended that no information should appear on a CbCR with respect to activities performed by a constituent entity of a U.S. MNE group under a U.S. government contract with certain agencies. Other comments recommended a bright-line test whereby U.S. MNE groups that conduct a majority of their business with the U.S. Department of Defense or U.S. government intelligence or security agencies could claim an automatic exception from reporting any information other than identifying information, such as company names, jurisdictions of incorporation, tax identification numbers, and addresses. These comments also recommended that U.S. MNE groups that conduct a significant amount (for example, more than 25 percent) of their business with the U.S. Department of Defense or U.S. government intelligence or security agencies should be allowed, with the approval of the IRS, to claim a similar exemption from reporting.

    The Treasury Department and the IRS have consulted with the Department of Defense regarding the information collected on the CbCR. The Department of Defense concluded that such information reporting generally does not pose a national security concern. Accordingly, the final regulations do not provide a general exception for information that may relate to national security. Nonetheless, the Department of Defense continues to consider the national security implications of the CbCR in particular fact patterns, and future guidance may be issued to provide procedures for taxpayers to consult with the Department of Defense regarding the appropriate presentation of CbC information in such fact patterns.

    5. Partnerships and Stateless Entities

    A business entity that is treated as a partnership in the tax jurisdiction in which it is organized and that does not own or create a permanent establishment in that or another tax jurisdiction generally will have no tax jurisdiction of residence under the definition in proposed § 1.6038-4(b)(6) other than for purposes of determining the ultimate parent entity of a U.S. MNE group. Under the proposed regulations, tax jurisdiction information with respect to constituent entities that do not have a tax jurisdiction of residence, or “stateless entities,” would be aggregated and reported in a separate row of the CbCR. The preamble to the proposed regulations indicates that partners of a partnership that is a stateless entity would report their respective shares of the partnership's items in their respective tax jurisdiction(s) of residence.

    A comment requested clarification as to whether the partnership or its partners, or both, should report the partnership's CbC information. In response, the final regulations provide that the tax jurisdiction of residence information with respect to stateless entities is provided on an aggregate basis for all stateless entities in a U.S. MNE group and that each stateless entity-owner's share of the revenue and profit of its stateless entity is also included in the information for the tax jurisdiction of residence of the stateless entity-owner. This rule applies irrespective of whether the stateless entity-owner is liable to tax on its share of the stateless entity's income in the owner's tax jurisdiction of residence. In other words, the stateless entity-owner reports its share of the stateless entity's revenues and profits in the owner's tax jurisdiction of residence even if that jurisdiction treats the stateless entity as a separate entity for tax purposes. In the case in which a partnership creates a permanent establishment for itself or its partners, the CbC information with respect to the permanent establishment is not reported as stateless, but instead is reported as part of the information on the CbCR for the permanent establishment's tax jurisdiction of residence.

    A comment requested clarification regarding whether distributions from partnerships and other fiscally transparent entities should be excluded from owners'/partners' reported revenue. In response, the final regulations clarify that distributions from a partnership to a partner are not included in the partner's revenue. Additionally, the final regulations provide that remittances from a permanent establishment to its constituent entity-owner are not included in the constituent entity-owner's revenue.

    6. Clarification of Terms

    The preamble to the proposed regulations requested comments on the manner in which the proposed regulations require the reporting of information on taxes paid or accrued by U.S. MNE groups and their constituent entities on taxable income earned in the relevant accounting period. One comment requested that “total accrued tax expense” in proposed § 1.6038-4(d)(2)(v) be revised to read “accrued current tax expense” in order to reflect only operations in the current year and not deferred taxes or provisions for uncertain tax liabilities. The proposed regulations clearly state that the relevant taxes to be reported relate only to the annual accounting period for which the CbCR is provided and exclude deferred taxes and provisions for uncertain tax liabilities. Therefore, the comment is not adopted.

    The preamble to the proposed regulations also requested comments on whether the descriptions of any of the other items in § 1.6038-4(d)(2)(i) through (ix) regarding tax jurisdiction of residence information should be further refined or whether additional guidance is needed with respect to how to determine any of these items. One comment requested that the definition for tangible assets be revised to clarify that intangibles and financial assets are excluded consistent with the Final BEPS Report. In response, the final regulations expressly provide that tangible assets do not include intangibles or financial assets.

    A comment noted that the term revenue excludes dividends from other constituent entities and recommended that this exclusion be extended to all forms of imputed earnings or deemed dividends. The Treasury Department and the IRS agree that imputed earnings and deemed dividends that are taken into account solely for tax purposes should be treated the same as dividends for purposes of the CbCR. Accordingly, the final regulations incorporate this recommendation.

    Multiple comments recommended that the wording “total income tax paid on a cash basis to all jurisdictions” in proposed § 1.6038-4(d)(2)(iv) should be modified to read “total income tax paid on a cash basis to each tax jurisdiction” to avoid misinterpretation of the “all tax jurisdictions” language to require taxes paid by entities that are tax residents of different tax jurisdictions to be aggregated rather than reported on a country-by-country basis as intended. The Treasury Department and the IRS interpret the language of the proposed regulation to require the total income tax paid on a cash basis to any tax jurisdiction by constituent entities that have a tax residence in a particular tax jurisdiction to be reported on an aggregated basis for that particular tax jurisdiction of residence but not the aggregation of taxes paid by constituent entities that have different tax residences. For instance, if a constituent entity pays income tax in its tax jurisdiction of residence on its earnings from operations in that country and is subject to withholding taxes on royalties received from licensees in another country, taxes paid with respect to the income and the taxes withheld with respect to the royalties should be reflected on an aggregated basis on the CbCR in the row for the constituent entity's tax jurisdiction of residence. The Treasury Department and the IRS are concerned that the alternative language proposed in the comments could be misinterpreted to require amounts paid to different tax jurisdictions by constituent entities resident in a single tax jurisdiction to be reported on a disaggregated basis. Accordingly, this comment is not adopted.

    Multiple comments also recommended the inclusion of two additional items, deferred taxes and provisions for uncertain tax positions, in the information required to be reported on a tax jurisdiction-by-tax jurisdiction basis. This recommendation has not been adopted in the final regulations because it would impose an additional reporting burden beyond the information described in the Final BEPS Report.

    Multiple comments recommended that the final regulations clarify that the information listed in proposed § 1.6038-4(d)(2)(i) through (ix) is reported in the aggregate for all constituent entities resident in each separate tax jurisdiction. Although the language in the proposed regulations does indicate that the information is to be provided with respect to each tax jurisdiction in which one or more constituent entities of the U.S. MNE group are resident and in the form and manner that Form 8975 prescribes, the final regulations provide additional language to clarify that the information is to be presented for each tax jurisdiction as an aggregate of the information for all constituent entities resident in that tax jurisdiction. Multiple comments requested that the final regulations clarify whether the information must be provided for only the constituent entities in each tax jurisdiction or whether the information must also be provided for U.S. MNE group members that are not constituent entities, for instance VIEs. The Treasury Department and the IRS have determined that additional language is unnecessary because § 1.6038-4(d)(1) of the proposed regulations expressly requires reporting of information only with respect to constituent entities of the U.S. MNE group.

    The final regulations provide that, for a constituent entity that is an organization exempt from taxation under section 501(a) because it is an organization described in section 501(c), 501(d), or 401(a), a state college or university described in section 511(a)(2)(B), a plan described in section 403(b) or 457(b), an individual retirement plan or annuity as defined in section 7701(a)(37), a qualified tuition program described in section 529, a qualified ABLE program described in section 529A, or a Coverdell education savings account described in section 530, the term revenue includes only revenue that is included in unrelated business taxable income as defined in section 512.

    7. Other Form or Information Modifications

    Multiple comments recommended that additional information be included on the CbCR, such as identification of constituent entities as “pass-through” and a legal entity identifier for each constituent entity using a standard international system for identifying individual business entities. The final regulations do not adopt these recommendations because they would impose an additional reporting burden beyond the information described in the Final BEPS Report.

    8. Voluntary Filing Before the Applicability Date

    Other countries have adopted CbC reporting requirements for annual accounting periods beginning on or after January 1, 2016, that would require reporting of CbC information by constituent entities of MNE groups with an ultimate parent entity resident in a tax jurisdiction that does not have a CbC reporting requirement for the same annual accounting period. The proposed regulations generally require U.S. MNE groups to file a CbCR for taxable years beginning on or after the date the final regulations are published. Consequently, U.S. MNE groups that use a calendar year as their taxable year generally will not be required to file a CbCR for their taxable year beginning January 1, 2016, and constituent entities of such U.S. MNE groups may be subject to CbC reporting requirements in foreign jurisdictions. Comments expressed concern about this possibility and recommended various approaches for dealing with this issue. Most comments requested that the IRS accept and exchange CbCRs voluntarily filed for taxable years beginning on or after January 1, 2016.

    Consistent with the proposed regulations, the final regulations are not applicable for taxable years of ultimate parent entities beginning before June 30, 2016, the date of publication of the final regulations in the Federal Register. Specifically, the final regulations apply to reporting periods of ultimate parent entities of U.S. MNE groups that begin on or after the first day of a taxable year of the ultimate parent entity that begins on or after June 30, 2016. The Treasury Department and the IRS intend to allow ultimate parent entities of U.S. MNE groups and U.S. business entities designated by a U.S. territory ultimate parent entity to file CbCRs for reporting periods that begin on or after January 1, 2016, but before the applicability date of the final regulations, under a procedure to be provided in separate, forthcoming guidance. The Treasury Department is working to ensure that foreign jurisdictions implementing CbC reporting requirements will not require constituent entities of U.S. MNE groups to file a CbC report with the foreign jurisdiction if the U.S. MNE group files a CbCR with the IRS pursuant to this procedure and the CbCR is exchanged with such foreign jurisdiction pursuant to a competent authority arrangement.

    9. Time and Manner of Filing

    The proposed regulations provide that the CbCR for a taxable year must be filed with the ultimate parent entity's income tax return for the taxable year on or before the due date, including extensions, for filing that person's income tax return. Multiple comments requested that taxpayers be permitted to file a CbCR up to one year from the end of the ultimate parent entity's taxable year or annual accounting period to facilitate the taxpayer's ability to use statutory accounts or tax records of constituent entities to complete the CbCR. After considering the flexibility allowed for sources of information for completing the CbCR, the IRS information technology resources necessary to facilitate a filing separate from the income tax return, and the IRS's concern that CbCRs be linked to an income tax return, the Treasury Department and the IRS have not adopted this recommendation. However, the final regulations do provide that Form 8975 may prescribe an alternative time and manner for filing.

    10. Employees

    The proposed regulations provide that the CbCR must reflect the number of employees for each tax jurisdiction of residence of the U.S. MNE group. The proposed regulations also provide that independent contractors participating in the ordinary course of business of a constituent entity may be included in the number of full-time equivalent employees. Multiple comments asked for further clarification with respect to the determination of the number of full-time equivalent employees and the treatment of independent contractors, including some recommending that independent contractors not be included as employees. The final regulations do not provide additional guidance with respect to the meaning of full-time equivalent employee or with respect to independent contractor situations and continue to allow for independent contractors that participate in the ordinary operating activities of a constituent entity to be included in the number of full-time equivalent employees. U.S. MNE groups may determine the number of employees of constituent entities on a full-time equivalent basis using any reasonable approach that is consistently applied. The Treasury Department and the IRS believe permitting this flexibility in determining the number of full-time equivalent employees of each constituent entity appropriately balances the burden of completing the CbCR with the anticipated benefits to tax administration and is consistent with the Final BEPS Report.

    The proposed regulations specify that employees should be reflected on the CbCR in the tax jurisdictions in which the employees performed work for the U.S. MNE group. Comments indicated that this methodology is inconsistent with the Final BEPS Report, which provides that employees of a constituent entity should be reflected in the tax jurisdiction of residence of such constituent entity, and that determining the work location of employees would be burdensome for U.S. MNE groups and would present issues regarding certain employment situations with traveling employees. The comments recommended that the final regulations follow the approach of the Final BEPS Report. In response to these comments, the final regulations do not include the phrase “in the relevant tax jurisdiction” from proposed § 1.6038-4(d)(2)(viii). Accordingly, under the final regulations, employees of a constituent entity are reflected in the tax jurisdiction of residence of such constituent entity.

    A comment requested clarification about the tax jurisdiction in which employees of partnerships should be reflected on the CbCR. As discussed in section 5 of this preamble, a partnership may be considered a stateless entity. If the partnership creates a permanent establishment for itself or its partners, then the permanent establishment itself may be a constituent entity of the U.S. MNE group. Employees of the permanent establishment-constituent entity should be reflected in the tax jurisdiction of residence of the permanent establishment. Any other employees of the partnership should be reported on the stateless jurisdiction row under the tax jurisdiction of residence information portion of the CbCR.

    11. Source of Data and Reconciliation

    The proposed regulations provide that the amounts furnished in the CbCR should be furnished for the annual accounting period with respect to which the ultimate parent entity prepares its applicable financial statements ending with or within the ultimate parent entity's taxable year, or, if the ultimate parent entity does not prepare applicable financial statements, then the information may be based on the applicable financial statements of constituent entities for their accounting period that ends with or within the ultimate parent entity's taxable year. Multiple comments expressed concern that the description of the period covered by the CbCR in the proposed regulations may limit the flexibility of U.S. MNE groups to choose to use consolidated financial statements or separate accounting, regulatory, or tax records prepared for the constituent entities. To mitigate this concern, the final regulations remove the restrictions imposed by the proposed regulations with respect to providing information for the applicable accounting period of the ultimate parent entity or for the applicable accounting period of each constituent entity. The final regulations provide that the reporting period covered by Form 8975 is the period of the ultimate parent entity's annual applicable financial statement that ends with or within the ultimate parent entity's taxable year, or, if the ultimate parent entity does not prepare an annual applicable financial statement, then the ultimate parent entity's taxable year. The final regulations do not limit the constituent entity information to applicable financial statements of the constituent entity but, rather, provide that the source of the tax jurisdiction of residence information on the CbCR must be based on applicable financial statements, books and records, regulatory financial statements, or records used for tax reporting or internal management control purposes for an annual period of each constituent entity ending with or within the reporting period.

    The proposed regulations provide that the amounts provided in the CbCR should be based on applicable financial statements, books and records maintained with respect to the constituent entity, or records used for tax reporting purposes. The term “books and records” was intended to be broad enough to include all sources of information that the Final BEPS Report allows. In order to clarify this intent, the final regulations provide that the source of data may also include regulatory financial statements and records used for internal management control purposes.

    The proposed regulations state that it is not necessary to have or maintain records that reconcile the amounts provided on the CbCR to the consolidated financial statements of the U.S. MNE group or to the tax returns filed in any particular tax jurisdiction or to make adjustments for differences in accounting principles applied from tax jurisdiction to tax jurisdiction. Multiple comments recommended that reconciliation to tax accounts be required and that ultimate parent entities maintain records of the reconciliation, while other comments supported the approach in the proposed regulations, which does not require reconciliation. The Treasury Department and the IRS considered these comments, and, consistent with the proposed regulations, the final regulations do not require the ultimate parent entity to create and maintain records to reconcile the information reported in the CbCR to consolidated financial statements or to tax returns. This approach provides flexibility for U.S. MNE groups to use the available data for each constituent entity without imposing the potential burden of a need to reconcile information on the CbCR with accounts that may not even be finalized when the CbCR is compiled, and it is consistent with the Final BEPS Report. The affirmative statement in the final regulations that an ultimate parent entity is not required to create and maintain information to support a reconciliation does not, however, affect the requirement to maintain records to support the information provided in the CbCR.

    12. Expanding Scope and Surrogate Parent Entity Filing

    The proposed regulations generally require a U.S. business entity that is an ultimate parent entity of a U.S. MNE group to file a CbCR with respect to business entities that are or would be consolidated with the ultimate parent entity. A CbCR is not required for an MNE group that does not have a U.S. business entity as its ultimate parent entity. Multiple comments requested that reporting be required for any U.S. entity that exercises the “mind and management function” of an MNE group, the foreign parent entity of which is tax resident in a jurisdiction that does not require a report similar to the CbCR, despite the fact that the foreign entities of such MNE group are not controlled foreign corporations. This recommendation, which is not adopted, is beyond the scope of the Final BEPS Report and could not be implemented under the authority provided in section 6038 to collect information on foreign business entities owned by U.S. persons.

    One comment recommended that the final regulations allow a foreign-parented MNE group with a U.S. business entity to designate that U.S. business entity as a surrogate parent entity and allow that entity to file a CbCR with the IRS for purposes of satisfying the MNE group's country-by-country reporting obligations in other tax jurisdictions. In light of the IRS resources that would be required to adopt this recommendation, the final regulations do not permit surrogate parent entity filing in the United States by foreign corporations as a general matter. However, the final regulations provide that a U.S. territory ultimate parent entity may designate a U.S. business entity that it controls (as defined in section 6038(e)) to file on the U.S. territory ultimate parent entity's behalf the CbCR that the U.S. territory ultimate parent entity would be required to file if it were a U.S. business entity. A U.S. territory ultimate parent entity is a business entity organized in a U.S. territory or possession of the United States that controls (as defined in section 6038(e)) a U.S. business entity and that is not owned directly or indirectly by another business entity that consolidates the accounts of the U.S. territory ultimate parent entity with its accounts under GAAP in the other business entity's tax jurisdiction of residence, or would be so required if equity interests in the other business entity were traded on a public securities exchange in its tax jurisdiction of residence.

    13. Tax Jurisdiction of Residence and Fiscal Autonomy

    The proposed regulations provide rules for determining the tax jurisdiction of residence of a constituent entity. Under those rules, a business entity is considered a resident in a tax jurisdiction if, under the laws of that tax jurisdiction, the business entity is liable to tax therein based on place of management, place of organization, or another similar criterion. The proposed regulations further provide that “a business entity will not be considered a resident in a tax jurisdiction if such business entity is liable to tax in such tax jurisdiction solely with respect to income from sources in such tax jurisdiction, or capital situated in such tax jurisdiction.” Multiple comments requested that the final regulations clarify that this language in the proposed regulations is not intended to exclude the possibility of a country with a purely territorial tax regime being a tax jurisdiction of residence. The Treasury Department and the IRS did not intend for the proposed regulations to be interpreted to treat all entities in tax jurisdictions with territorial tax regimes as stateless entities. The language in question was intended to indicate that a business entity will not have a tax jurisdiction of residence in a jurisdiction solely by reason of being liable to tax in the jurisdiction on fixed, determinable, annual or periodical income from sources or capital situated in the jurisdiction. For greater clarity, the final regulations provide that “[a] business entity will not be considered a resident in a tax jurisdiction if the business entity is only liable to tax in such tax jurisdiction by reason of a tax imposed by reference to gross amounts of income without any reduction for expenses, provided such tax applies only with respect to income from sources in such tax jurisdiction or capital situated in such tax jurisdiction.”

    The proposed regulations provide that a tax jurisdiction is a country or a jurisdiction that is not a country but that has fiscal autonomy. Multiple comments requested that the final regulations address the meaning of fiscal autonomy. In light of the need for consistency of CbC reporting requirements across tax jurisdictions, the Treasury Department and the IRS do not believe it would be helpful to provide a general definition of fiscal autonomy in the final regulations absent international consensus on the meaning of the term. However, the final regulations clarify that a U.S. territory or possession of the United States, defined as American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin Islands, is considered to have fiscal autonomy for purposes of CbC reporting.

    Under the proposed regulations, if a business entity is resident in more than one tax jurisdiction and there is no applicable income tax treaty, the business entity's tax jurisdiction of residence is the tax jurisdiction of the business entity's place of effective management determined in accordance with Article 4 of the OECD Model Tax Convention. One comment noted that the “effective place of management” test under the OECD Model Tax Convention can be uncertain and “subject to second guessing.” The comment recommended that an alternative, bright-line tie-breaker rule be considered to address such situations. The determination of tax jurisdiction of residence in the proposed regulations is based on the Final BEPS Report, and the final regulations do not create a new tie-breaker rule but add that, in addition to the OECD Model Tax Convention, Form 8975 may provide guidance.

    Although certain entities may not have a tax jurisdiction of residence, the Treasury Department and the IRS have determined that an entity regarded as a corporation should not be considered stateless merely because it is organized or managed in a jurisdiction that does not impose an income tax on corporations. Accordingly, the final regulations provide that in the case of a tax jurisdiction that does not impose an income tax on corporations, a corporation that is organized or managed in that tax jurisdiction will be treated as resident in that tax jurisdiction, unless such corporation is treated as resident in another tax jurisdiction under another provision of the final regulations.

    14. Reporting Threshold

    The revenue threshold at or above which a U.S. MNE group is required to file the CbCR (reporting threshold) is expressed in United States dollars (USD) in proposed § 1.6038-4(h). Foreign jurisdictions that are enacting CbC reporting requirements based on the Final BEPS Report may express the reporting threshold in a foreign currency. Multiple commenters expressed concern that U.S. MNE groups may be required to file a CbC report in a foreign country, even if the USD reporting threshold in § 1.6038-4(h) is not exceeded, because the U.S. MNE group's revenues exceed the local law reporting threshold as expressed in the foreign currency. The comments recommended various approaches to address the possibility of a reporting threshold in the final regulations that is inconsistent with local law reporting thresholds. The reporting threshold of $850,000,000 in the proposed regulation was determined by reference to the USD equivalent of €750,000,000 on January 1, 2015, as provided in the Final BEPS Report. The Treasury Department and the IRS anticipate that other countries will acknowledge that it would be inconsistent with the Final BEPS Report for a country to require local filing by a constituent entity of a U.S. MNE group that has revenue of less than $850,000,000.

    Multiple comments requested that the reporting threshold be reduced to the USD equivalent of €40,000,000 in order to subject a greater number of U.S. MNE groups to CbC reporting requirements. Because the reporting threshold in the proposed regulations is based on the Final BEPS Report, it is consistent with the agreed international standard with respect to CbC reporting. The Treasury Department and IRS weighed the potential benefit of obtaining CbC information on a larger number of U.S. MNE groups against the additional administrative burden that would be imposed on the IRS and the burden that would be imposed on U.S. MNE groups that would not otherwise be required to file the CbCR. Based on these considerations, the final regulations maintain the reporting threshold in the proposed regulations.

    15. Confidentiality and Use of the CbCR

    Multiple comments expressed concerns regarding the confidentiality of the CbCR. Some comments recommended public disclosure of CbCRs. These comments requested that the CbCR be treated as a Treasury report, referencing as an example the Treasury Department's Financial Crimes Enforcement Network Report of Foreign Bank and Financial Assets, rather than tax return information, so that the CbCR would not be subject to the confidentiality protections under section 6103. Other comments supported the decision to treat CbCR as return information.

    The Treasury Department and the IRS have determined that the information provided on the CbCR is return information subject to the confidentiality protections of section 6103. This approach is consistent with the purpose of CbC reporting as well as the confidentiality standards reflected in the Final BEPS Report. CbC reporting was designed and established as part of an international effort to standardize transfer pricing documentation. This standardized documentation is intended to provide an efficient and effective means for tax administrations to conduct high-level transfer pricing risk assessment. Accordingly, the Treasury Department and the IRS are collecting the CbCR under the authority of sections 6001, 6011, 6012, 6031, and 6038 to assist in the better enforcement of income tax laws. The CbCR is a return, and the information furnished to the Treasury Department and the IRS on the CbCR is return information subject to the confidentiality protections provided under section 6103. In addition, the Final BEPS Report provides that tax administrations should take all reasonable steps to ensure that there is no public disclosure of confidential information in CbC reports and that they be used for tax risk assessment purposes.

    The preamble of the proposed regulations indicates that the information reported on the CbCR will be used for high-level transfer pricing risk identification and assessment, and that transfer pricing adjustments will not be made solely on the basis of a CbCR, but that the CbCR may be the basis for further inquiries into transfer pricing practices or other tax matters which may lead to adjustments. Some comments supported the limitations on use of the CbCR information, while other comments expressed concern that a prohibition on disclosure of the CbCR for non-tax law purposes is too restrictive. Consistent with the proposed regulations, the final regulations do not contain specific limitations on the use of CbCR information. However, consistent with the Final BEPS Report, the Treasury Department and the IRS intend to limit the use of the CbCR information and intend to incorporate this limitation into the competent authority arrangements pursuant to which CbCRs are exchanged.

    One comment recommended that CbCR information not be provided to state or local jurisdictions and that a statement to that effect be provided in the final regulations. Under section 6103(d), return information may be provided to state agencies, but only for the purposes of, and only to the extent necessary in, the administration of such state's tax laws. The Treasury Department and the IRS believe the circumstances under which this standard would be met for the CbCR are rare, but the final regulations do not preclude the disclosure of CbCRs to state agencies, subject to the restrictions of section 6103 that apply to other returns and return information.

    16. Exchange of Information With Foreign Jurisdictions

    The United States intends to enter into competent authority arrangements for the automatic exchange of CbCRs with jurisdictions with which the United States has an income tax treaty or tax information exchange agreement. Multiple comments expressed concern that review of the confidentiality safeguards and framework of the other jurisdictions would prevent the Treasury Department and IRS from concluding such arrangements on a timely basis. Comments also requested that the Treasury Department and IRS publish a list of jurisdictions with which the United States exchanges CbCRs. The Treasury Department is committed to entering into bilateral competent authority arrangements with respect to CbCRs in a timely manner, taking into consideration the need for appropriate review of systems and confidentiality safeguards in the other jurisdictions. The Treasury Department and the IRS anticipate that information about the existence of competent authority arrangements for CbCRs will be made publicly available, but the manner in which such information would be made publicly available has not yet been determined.

    A comment recommended that the final regulations provide a mechanism for reporting suspected violations of the limitations on the use of information by foreign jurisdictions. While the final regulations do not provide procedures for reporting suspected violations, the Treasury Department and the IRS are aware of the concern and intend to establish a procedure to report suspected violations of confidentiality and other misuses of CbCR information.

    A comment requested that information transmitted under the competent authority arrangements include the “Additional Information” table in the model CbC report template provided in the Final BEPS Report. It is expected that such information will be collected on Form 8975 and transmitted; however, there may be limits to the amount of information that can be transmitted in any field. Such constraints, if any, will be noted in the Instructions to Form 8975.

    17. Penalties

    One comment requested that penalties with respect to the CbCR be waived for reports filed for the 2016 tax year and that the Treasury Department should advocate that other countries also waive penalties for the 2016 tax year. The final regulations apply to reporting periods of ultimate parent entities that begin on or after the first day of a taxable year of the ultimate parent entity that begins on or after publication of the final regulations in the Federal Register. U.S. MNE groups whose ultimate parent entity's taxable year begins before the applicability date will not have a CbCR filing requirement for their tax year beginning in 2016. The final regulations do not provide a specific waiver of penalties for U.S. MNE groups whose ultimate parent entity's taxable year begins on or after the applicability date. The penalty rules under section 6038 generally apply, including reasonable cause relief for failure to file.

    Special Analyses

    Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

    It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6). Accordingly, a regulatory flexibility analysis is not required. This certification is based on the fact that these regulations will only affect U.S. corporations, partnerships, and business trusts that have foreign operations with respect to a taxable year when the combined annual revenue of the business entities owned by the U.S. person meets or exceeds $850,000,000 for the previous reporting period. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Drafting Information

    The principal author of these regulations is Melinda E. Harvey of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding the following entry in numerical order to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.6038-4 also issued under 26 U.S.C. 6001, 6011, 6012, 6031, and 6038.

    Par. 2. Section 1.6038-4 is added to read as follows:
    § 1.6038-4 Information returns required of certain United States persons with respect to such person's U.S. multinational enterprise group.

    (a) Requirement of return. Except as provided in paragraph (h) of this section, every ultimate parent entity of a U.S. multinational enterprise (MNE) group must make an annual return on Form 8975, Country-by-Country Report, setting forth the information described in paragraph (d) of this section, and any other information required by Form 8975, with respect to the reporting period described in paragraph (c) of this section.

    (b) Definitions—(1) Ultimate parent entity of a U.S. MNE group. An ultimate parent entity of a U.S. MNE group is a U.S. business entity that:

    (i) Owns directly or indirectly a sufficient interest in one or more other business entities, at least one of which is organized or tax resident in a tax jurisdiction other than the United States, such that the U.S. business entity is required to consolidate the accounts of the other business entities with its own accounts under U.S. generally accepted accounting principles, or would be so required if equity interests in the U.S. business entity were publicly traded on a U.S. securities exchange; and

    (ii) Is not owned directly or indirectly by another business entity that consolidates the accounts of such U.S. business entity with its own accounts under generally accepted accounting principles in the other business entity's tax jurisdiction of residence, or would be so required if equity interests in the other business entity were traded on a public securities exchange in its tax jurisdiction of residence.

    (2) Business entity. For purposes of this section, a business entity generally is any entity recognized for federal tax purposes that is not properly classified as a trust under § 301.7701-4 of this chapter. However, any grantor trust within the meaning of section 671, all or a portion of which is owned by a person other an individual, is a business entity for purposes of this section. Additionally, the term business entity includes any entity with a single owner that may be disregarded as an entity separate from its owner under § 301.7701-3 of this chapter and a permanent establishment, as defined in paragraph (b)(3) of this section, that prepares financial statements separate from those of its owner for financial reporting, regulatory, tax reporting, or internal management control purposes. A business entity does not include a decedent's estate or a bankruptcy estate described in section 1398.

    (3) Permanent establishment. For purposes of this section, the term permanent establishment includes:

    (i) A branch or business establishment of a constituent entity in a tax jurisdiction that is treated as a permanent establishment under an income tax convention to which that tax jurisdiction is a party;

    (ii) A branch or business establishment of a constituent entity that is liable to tax in the tax jurisdiction in which it is located pursuant to the domestic law of such tax jurisdiction; or

    (iii) A branch or business establishment of a constituent entity that is treated in the same manner for tax purposes as an entity separate from its owner by the owner's tax jurisdiction of residence.

    (4) U.S. business entity. A U.S. business entity is a business entity that is organized or has its tax jurisdiction of residence in the United States. For purposes of this section, foreign insurance companies that elect to be treated as domestic corporations under section 953(d) are U.S. business entities that have their tax jurisdiction of residence in the United States.

    (5) U.S. MNE group. A U.S. MNE group comprises the ultimate parent entity of a U.S. MNE group as defined in paragraph (b)(1) of this section and all of the business entities required to consolidate their accounts with the ultimate parent entity's accounts under U.S. generally accepted accounting principles, or that would be so required if equity interests in the ultimate parent entity were publicly traded on a U.S. securities exchange, regardless of whether any such business entities could be excluded from consolidation solely on size or materiality grounds.

    (6) Constituent entity. With respect to a U.S. MNE group, a constituent entity is any separate business entity of such U.S. MNE group, except that the term constituent entity does not include a foreign corporation or foreign partnership for which the ultimate parent entity is not required to furnish information under section 6038(a) (determined without regard to §§ 1.6038-2(j) and 1.6038-3(c)) or any permanent establishment of such foreign corporation or foreign partnership.

    (7) Tax jurisdiction. For purposes of this section, a tax jurisdiction is a country or a jurisdiction that is not a country but that has fiscal autonomy. For purposes of this section, a U.S. territory or possession of the United States is considered to have fiscal autonomy.

    (8) Tax jurisdiction of residence. A business entity is considered a resident in a tax jurisdiction if, under the laws of that tax jurisdiction, the business entity is liable to tax therein based on place of management, place of organization, or another similar criterion. A business entity will not be considered a resident in a tax jurisdiction if the business entity is liable to tax in such tax jurisdiction only by reason of a tax imposed by reference to gross amounts of income without any reduction for expenses, provided such tax applies only with respect to income from sources in such tax jurisdiction or capital situated in such tax jurisdiction. If a business entity is resident in more than one tax jurisdiction, then the applicable income tax convention rules, if any, should be applied to determine the business entity's tax jurisdiction of residence. If a business entity is resident in more than one tax jurisdiction and no applicable income tax convention exists between those tax jurisdictions, or if the applicable income tax convention provides that the determination of residence is based on a determination by the competent authorities of the relevant tax jurisdictions and no such determination has been made, the business entity's tax jurisdiction of residence is the tax jurisdiction of the business entity's place of effective management determined in accordance with Article 4 of the Organisation for Economic Co-operation and Development Model Tax Convention on Income and on Capital 2014, or as provided by Form 8975. A corporation that is organized or managed in a tax jurisdiction that does not impose an income tax on corporations will be treated as resident in that tax jurisdiction, unless such corporation is treated as resident in another tax jurisdiction under another provision of this section. The tax jurisdiction of residence of a permanent establishment is the jurisdiction in which the permanent establishment is located. If a business entity does not have a tax jurisdiction of residence, then solely for purposes of paragraph (b)(1) of this section, the tax jurisdiction of residence is the business entity's country of organization.

    (9) Applicable financial statements. An applicable financial statement is a certified audited financial statement that is accompanied by a report of an independent certified public accountant or similarly qualified independent professional that is used for purposes of reporting to shareholders, partners, or similar persons; for purposes of reporting to creditors in connection with securing or maintaining financing; or for any other substantial non-tax purpose.

    (10) U.S. territory or possession of the United States. The term U.S. territory or possession of the United States means American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin Islands.

    (11) U.S. territory ultimate parent entity. A U.S. territory ultimate parent entity is a business entity organized in a U.S. territory or possession of the United States that controls (as defined in section 6038(e)) a U.S. business entity and that is not owned directly or indirectly by another business entity that consolidates the accounts of the U.S. territory ultimate parent entity with its accounts under generally accepted accounting principles in the other business entity's tax jurisdiction of residence, or would be so required if equity interests in the other business entity were traded on a public securities exchange in its tax jurisdiction of residence.

    (c) Reporting period. The reporting period covered by Form 8975 is the period of the ultimate parent entity's applicable financial statement prepared for the 12-month period (or a 52-53 week period described in section 441(f)) that ends with or within the ultimate parent entity's taxable year. If the ultimate parent entity does not prepare an annual applicable financial statement, then the reporting period covered by Form 8975 is the 12-month period (or a 52-53 week period described in section 441(f)) that ends on the last day of the ultimate parent entity's taxable year.

    (d) Contents of return—(1) Constituent entity information. The return on Form 8975 must contain so much of the following information with respect to each constituent entity of the U.S. MNE group, and in such form or manner, as Form 8975 prescribes:

    (i) The complete legal name of the constituent entity;

    (ii) The tax jurisdiction, if any, in which the constituent entity is resident for tax purposes;

    (iii) The tax jurisdiction in which the constituent entity is organized or incorporated (if different from the tax jurisdiction of residence);

    (iv) The tax identification number, if any, used for the constituent entity by the tax administration of the constituent entity's tax jurisdiction of residence; and

    (v) The main business activity or activities of the constituent entity.

    (2) Tax jurisdiction of residence information. The return on Form 8975 must contain so much of the following information with respect to each tax jurisdiction in which one or more constituent entities of a U.S. MNE group is resident, presented as an aggregate of the information for the constituent entities resident in each tax jurisdiction, and in such form or manner, as Form 8975 prescribes:

    (i) Revenues generated from transactions with other constituent entities;

    (ii) Revenues not generated from transactions with other constituent entities;

    (iii) Profit or loss before income tax;

    (iv) Total income tax paid on a cash basis to all tax jurisdictions, and any taxes withheld on payments received by the constituent entities;

    (v) Total accrued tax expense recorded on taxable profits or losses, reflecting only operations in the relevant annual period and excluding deferred taxes or provisions for uncertain tax liabilities;

    (vi) Stated capital, except that the stated capital of a permanent establishment must be reported in the tax jurisdiction of residence of the legal entity of which it is a permanent establishment unless there is a defined capital requirement in the permanent establishment tax jurisdiction for regulatory purposes;

    (vii) Total accumulated earnings, except that accumulated earnings of a permanent establishment must be reported by the legal entity of which it is a permanent establishment;

    (viii) Total number of employees on a full-time equivalent basis; and

    (ix) Net book value of tangible assets, which, for purposes of this section, does not include cash or cash equivalents, intangibles, or financial assets.

    (3) Special rules—(i) Constituent entity with no tax jurisdiction of residence. The information listed in paragraph (d)(2) of this section also must be provided, in the aggregate, for any constituent entity or entities that have no tax jurisdiction of residence. In addition, if a constituent entity is an owner of a constituent entity that does not have a jurisdiction of tax residence, then the owner's share of such entity's revenues and profits will be aggregated with the information for the owner's tax jurisdiction of residence.

    (ii) Definition of revenue. For purposes of this section, the term revenue includes all amounts of revenue, including revenue from sales of inventory and property, services, royalties, interest, and premiums. The term revenue does not include payments received from other constituent entities that are treated as dividends in the payor's tax jurisdiction of residence. Distributions and remittances from partnerships and other fiscally transparent entities and permanent establishments that are constituent entities are not considered revenue of the recipient-owner. The term revenue also does not include imputed earnings or deemed dividends received from other constituent entities that are taken into account solely for tax purposes and that otherwise would be included as revenue by a constituent entity. With respect to a constituent entity that is an organization exempt from taxation under section 501(a) because it is an organization described in section 501(c), 501(d), or 401(a), a state college or university described in section 511(a)(2)(B), a plan described in section 403(b) or 457(b), an individual retirement plan or annuity as defined in section 7701(a)(37), a qualified tuition program described in section 529, a qualified ABLE program described in section 529A, or a Coverdell education savings account described in section 530, the term revenue includes only revenue that is reflected in unrelated business taxable income as defined in section 512.

    (iii) Number of employees. For purposes of this section, the number of employees on a full-time equivalent basis may be reported as of the end of the accounting period, on the basis of average employment levels for the annual accounting period, or on any other reasonable basis consistently applied across tax jurisdictions and from year to year. Independent contractors participating in the ordinary operating activities of a constituent entity may be reported as employees of such constituent entity. Reasonable rounding or approximation of the number of employees is permissible, provided that such rounding or approximation does not materially distort the relative distribution of employees across the various tax jurisdictions. Consistent approaches should be applied from year to year and across entities.

    (iv) Income tax paid and accrued tax expense of permanent establishment. In the case of a constituent entity that is a permanent establishment, the amount of income tax paid and the amount of accrued tax expense referred to in paragraphs (d)(2)(iv) and (v) of this section should not include the income tax paid or tax expense accrued by the business entity of which the permanent establishment would be a part, but for the second sentence of paragraph (b)(2) of this section, in that business entity's tax jurisdiction of residence on the income derived by the permanent establishment.

    (v) Certain transportation income. If a constituent entity of a U.S. MNE group derives income from international transportation or transportation in inland waterways that is covered by income tax convention provisions that are specific to such income and under which the taxing rights on such income are allocated exclusively to one tax jurisdiction, then the U.S. MNE group should report the information required under paragraph (d)(2) of this section with respect to such income for the tax jurisdiction to which the relevant income tax convention provisions allocate these taxing rights.

    (e) Reporting of financial amounts—(1) Reporting in U.S. dollars required. All amounts furnished under paragraph (d)(2) of this section, other than paragraph (d)(2)(viii) of this section, must be expressed in U.S. dollars. If an exchange rate is used other than in accordance with U.S. generally accepted accounting principles for conversion to U.S. dollars, the exchange rate must be indicated.

    (2) Sources of financial amounts. All amounts furnished under paragraph (d)(2) of this section, other than paragraph (d)(2)(viii) of this section, should be based on applicable financial statements, books and records maintained with respect to the constituent entity, regulatory financial statements, or records used for tax reporting or internal management control purposes for an annual period of each constituent entity ending with or within the period described in paragraph (c) of this section.

    (f) Time and manner for filing. Returns on Form 8975 required under paragraph (a) of this section for a reporting period must be filed with the ultimate parent entity's income tax return for the taxable year, in or with which the reporting period ends, on or before the due date (including extensions) for filing that person's income tax return or as otherwise prescribed by Form 8975.

    (g) Maintenance of records. The U.S. person filing Form 8975 as an ultimate parent entity of a U.S. MNE group must maintain records to support the information provided on Form 8975. However, the U.S. person is not required to create and maintain records that reconcile the amounts provided on Form 8975 with the tax returns of any tax jurisdiction or applicable financial statements.

    (h) Exceptions to furnishing information. An ultimate parent entity of a U.S. MNE group is not required to report information under this section for the reporting period described in paragraph (c) of this section if the annual revenue of the U.S. MNE group for the immediately preceding reporting period was less than $850,000,000.

    (i) [Reserved]

    (j) U.S. territories and possessions of the United States. A U.S. territory ultimate parent entity may designate a U.S. business entity that it controls (as defined in section 6038(e)) to file Form 8975 on the U.S. territory ultimate parent entity's behalf with respect to such U.S. territory ultimate parent entity and the business entities that would be required to consolidate their accounts with such U.S. territory ultimate parent entity under U.S. generally accepted accounting principles, or would be so required if equity interests in the U.S. territory ultimate parent entity were publicly traded on a U.S. securities exchange.

    (k) Applicability dates. The rules of this section apply to reporting periods of ultimate parent entities of U.S. MNE groups that begin on or after the first day of a taxable year of the ultimate parent entity that begins on or after June 30, 2016.

    John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: June 20, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2016-15482 Filed 6-29-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF JUSTICE 28 CFR Parts 20, 22, 36, 68, 71, 76, and 85 [Docket No. OAG 148; AG Order No. 3690-2016] Civil Monetary Penalties Inflation Adjustment AGENCY:

    Department of Justice.

    ACTION:

    Interim final rule with request for comments.

    SUMMARY:

    In accordance with the provisions of the Bipartisan Budget Act of 2015, the Department of Justice is adjusting for inflation civil monetary penalties assessed or enforced by components of the Department.

    DATES:

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

    Public comments: Written comments must be postmarked and electronic comments must be submitted on or before August 29, 2016. Commenters should be aware that the electronic Federal Docket Management System (FDMS) will accept comments submitted prior to Midnight Eastern Time on the last day of the comment period.

    ADDRESSES:

    To ensure proper handling of comments, please reference “Docket No. OAG 148” on all electronic and written correspondence. The Department encourages all comments be submitted electronically through http://www.regulations.gov using the electronic comment form provided on that site. An electronic copy of this document is also available at http:// www.regulations.gov for easy reference. Paper comments that duplicate the electronic submission are not necessary as all comments submitted to http://www.regulations.gov will be posted for public review and are part of the official docket record. Should you, however, wish to submit written comments via regular or express mail, they should be sent to Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue NW., Washington, DC 20530.

    FOR FURTHER INFORMATION CONTACT:

    Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone (202) 514-8059 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Posting of Public Comments

    Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name and address) voluntarily submitted by the commenter. You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment.

    If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. Personal identifying information and confidential business information identified as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the paragraph above entitled FOR FURTHER INFORMATION CONTACT.

    Background A. Prior Statutory Provisions for Inflation Adjustments

    The Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 28 U.S.C. 2461 note (2014) (“Inflation Adjustment Act”), provided for the regular evaluation and adjustment for inflation of civil monetary penalties to, among other things, ensure that they continue to maintain their deterrent effect and that penalty amounts due the Federal Government are properly accounted for and collected. Section 31001(s)(1) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Public Law 104-134, also known as the Debt Collection Improvement Act of 1996 (“Improvement Act”), amended section 4 of the Inflation Adjustment Act to require the head of each agency to adjust periodically each civil monetary penalty provided by law within the jurisdiction of the Federal agency by regulation and to publish each such regulation in the Federal Register. Subsection (s)(1) also added a new section to the Inflation Adjustment Act providing that any increase in a civil monetary penalty made under the Act shall apply only to violations that occur after the date the increase takes effect. Subsection (s)(2) of the Improvement Act provided that the first adjustment of a civil monetary penalty made pursuant to the amendment in subsection (s)(1) may not exceed 10 percent of such penalty.

    The amounts of the adjustments were determined according to a formula set forth in the Inflation Adjustment Act, which used applicable “rounders” (or increments) for calculations based on the amount of the current penalty along with the statutorily defined cost-of-living adjustment. See 28 CFR 85.2 (2015); Public Law 101-410, sec. 5. For example, the applicable “rounder” for a current $15,000 civil penalty amount was $5,000, which meant that there would be no inflation adjustment if the raw inflation adjustment calculation showed an increase of less than $2,500, but the civil penalty amount would be increased by the full $5,000 increment if the raw inflation adjustment was above the rounding threshold. See id.

    B. Past Inflation Adjustment Rules

    In compliance with the prior statutory requirements, the Department of Justice published a rule on February 12, 1999 (64 FR 7066-03) adjusting the immigration-related civil monetary penalties assessed or enforced by the Executive Office for Immigration Review's (EOIR) Office of the Chief Administrative Hearing Officer (OCAHO). On August 30, 1999 (64 FR 47099), the Department published a rule adjusting the other civil monetary penalties assessed or enforced by it.

    On February 26, 2008 (73 FR 10130-01), the Department of Homeland Security (DHS) and the Department of Justice published a rule adjusting for inflation the immigration-related civil monetary penalties assessed or enforced by those two Departments under sections 274A, 274B, and 274C of the Immigration and Nationality Act (INA).1 On March 28, 2014 (79 FR 17434-01), the Department published a rule adjusting for inflation the civil monetary penalties assessed or enforced by the Civil Rights Division.

    1 The former Immigration and Naturalization Service (INS) was part of the Department of Justice when the 1999 inflation adjustments rules for civil monetary penalties were adopted. However, Congress abolished the former INS effective March 1, 2003, and transferred its functions to DHS pursuant to the Homeland Security Act, Public Law 107-296 (Nov. 25, 2002). EOIR was a separate component at that time, and it remains within the Department of Justice under the authority of the Attorney General.

    C. Revised Statutory Process for Implementing Annual Inflation Adjustments

    Section 701 of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), titled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“2015 Amendments”), 28 U.S.C. 2461 note, substantially revised the prior provisions of the Inflation Adjustment Act and substituted a different statutory formula for calculating inflation adjustments on an annual basis.

    The 2015 Amendments set forth a different method of calculation for the initial adjustment following the 2015 Amendments than for subsequent adjustments. For the initial adjustment, the “cost-of-living adjustment,” which sets the amount by which the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, would be increased, is defined as “the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of October, 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of such civil monetary penalty was established or adjusted under a provision of law other than this Act.” Public Law 114-74, sec. 701(b)(2)(B) (amending section 5(b) of the Inflation Adjustment Act). This adjustment is to be applied to “the amount of the civil monetary penalty as it was most recently established or adjusted under a provision of law other than this Act,” and “shall not exceed 150 percent of the amount of that civil monetary penalty on the date of enactment of” the 2015 Amendments. Id. For adjustments other than the initial adjustment, the “cost-of-living adjustment” is defined as “the percentage (if any) for each civil monetary penalty by which—(A) the Consumer Price Index for the month of October preceding the date of the adjustment, exceeds (B) the Consumer Price Index 1 year before the month of October referred to in subparagraph (A).” Id.

    In short, the 2015 Amendments tie the inflation adjustments for the initial adjustment to an index reflecting the cost of living increases between 2015 and the year in which each civil penalty was established or adjusted by a provision of law other than the Inflation Adjustment Act. For subsequent adjustments, however, the adjustment will be determined by the difference in the Consumer Price Index between the October preceding the new adjustment and the October the year before. In addition, instead of using the larger “rounders” under the old formula, the resulting new civil penalty amounts adjusted under the 2015 Amendments are rounded to the nearest $1.

    The 2015 Amendments removed the 10 percent cap on the first-time inflation adjustment for each penalty, and, as noted above, provided that the initial adjustment following the 2015 Amendments “shall not exceed 150 percent of the amount of that civil monetary penalty on the date of enactment of” the 2015 Amendments. See Public Law 114-74, sec. 701(c) (repealing section 31001(s)(2) of the Improvement Act); id. sec. 701(b)(2)(B) (amending section 5(b) of the Inflation Adjustment Act). Effectively, this means that the adjusted civil penalty under this rule—which sets forth the initial inflation adjustment following the 2015 Amendments—cannot be more than 2.5 times the amount of the current penalty, including prior inflation adjustments under the Inflation Adjustment Act. As shown in Table A of this preamble indicating the calculation of inflation adjustments, this statutory cap affects only six of the civil penalties being adjusted under this rule, because of prior inflation adjustments implemented since 1999. Although the statute authorizes the Department, with the concurrence of the Director of the Office of Management and Budget, to make a determination in certain circumstances to increase a civil penalty by less than the otherwise required amount, the Department is not invoking that authority in this rule. See Public Law 114-74, sec. 701(b)(1)(D) (adding section 4(c) to Inflation Adjustment Act).

    The 2015 Amendments also amended section 6 of the Inflation Adjustment Act to provide that “[a]ny increase under this Act in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.”

    Adjustments Made in This Rule for Civil Monetary Penalties

    In accordance with the 2015 Amendments, the adjustments made by this rule are based on the Bureau of Labor Statistics' Consumer Price Index for October 2015. The inflation factors used in Table A were provided to all federal agencies in the OMB Memorandum for the Heads of Executive Departments and Agencies M-16-06 (Feb. 24, 2016). https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf (last visited June 3, 2016).

    Table A provides the calculations upon which the current inflation adjustments are being made. As summarized above, the key factors for these calculations are (1) the year in which each civil penalty amount was established or adjusted under a provision of law other than the Inflation Adjustment Act; (2) the amount of each civil penalty as so established or adjusted; (3) the inflationary adjustment factor (as determined according to the chart prepared by OMB) for the year of the most recent establishment or adjustment of the amount of the penalty; and (4) the resulting amount of the new adjusted civil penalty. For example, for a civil penalty that was most recently established by law at the amount of $1,000 in the year 1996, applying the inflationary adjustment factor of 1.50245 for that year, the adjusted penalty as determined under this rule is $1,502, as rounded to the nearest $1. The only departures from this straightforward calculation are for those civil penalties whose amount was set decades ago and not previously adjusted; in those few cases, the civil penalty amount is capped at 2.5 times the civil penalty amount currently in effect, as noted by the footnotes in Table A.

    Table A U.S.C. Citation Name/Description CFR Citation Year
  • enacted
  • Last year
  • adjusted
  • (Non IAA)
  • Penalty
  • (Non IAA)
  • ($)
  • Multiplier DOJ Penalty as of
  • 11/2/15
  • ($) 1
  • New DOJ penalty 2
    ATF 18 U.S.C. 922(t)(5) Brady Law—Nat'l Instant Criminal Check System; Transfer of firearm without checking NICS 1993 1993 5,000 1.63238 5,000 8,162 18 U.S.C. 924(p) Child Safety Lock Act; Secure gun storage or safety device, violation 2005 2005 2,500 1.19397 2,500 2,985 Civil Division 12 U.S.C. 1833a(b)(1) Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) Violation 28 CFR 85.3(a)(6) 1989 1989 1,000,000 1.89361 1,100,000 1,893,610 12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing) (per day) 28 CFR 85.3(a)(7) 1989 1989 1,000,000 1.89361 1,100,000 1,893,610 12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing) 28 CFR 85.3(a)(7) 1989 1989 5,000,000 1.89361 5,500,000 9,468,050 22 U.S.C. 2399b(a)(3)(A) Foreign Assistance Act; Fraudulent Claim for Assistance (per act) 28 CFR 85.3(a)(8) 1968 1968 2,000 6.73762 2,200 5,500 ** 31 U.S.C. 3729(a) False Claims Act; 3 Violations 28 CFR 85.3(a)(9) 1986 1986 Min. 5,000
  • Max. 10,000
  • 2.15628 Min, 5,500
  • Max. 11,000
  • Min. 10,781
  • Max. 21,563
  • 31 U.S.C. 3802(a)(1) Program Fraud Civil Remedies Act; Violations Involving False Claim (per claim) 28 CFR 71.3(a) 1986 1986 5,000 2.15628 5,500 10,781 31 U.S.C. 3802(a)(2) Program Fraud Civil Remedies Act; Violation Involving False Statement (per statement) 28 CFR 71.3(f) 1986 1986 5,000 2.15628 5,500 10,781 40 U.S.C. 123(a)(1)(A) Federal Property and Administrative Services Act; Violation Involving Surplus Government Property (per act) 28 CFR 85.3(a)(12) 1949 1949 2,000 10.03536 2,200 5,500 ** 41 U.S.C. 8706(a)(1)(B) Anti-Kickback Act; Violation Involving Kickbacks 4 (per occurrence) 28 CFR 85.3(a)(13) 1986 1986 10,000 2.15628 11,000 21,563 18 U.S.C. 2723(b) Driver's Privacy Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records—Substantial Non-compliance (per day) 1994 1994 5,000 1.59089 5,000 7,954 18 U.S.C. 216(b) Ethics Reform Act of 1989; Penalties for Conflict of Interest Crimes 5 (per violation) 28 CFR 85.3(c) 1989 1989 50,000 1.89361 55,000 94,681 41 U.S.C. 2105(b)(1) Office of Federal Procurement Policy Act; 6 Violation by an individual (per violation) 1988 1988 50,000 1.97869 50,000 98,935 41 U.S.C. 2105(b)(2) Office of Federal Procurement Policy Act; 6 Violation by an organization (per violation) 1988 1988 500,000 1.97869 500,000 989,345 42 U.S.C. 5157(d) Disaster Relief Act of 1974; 7 Violation (per violation) 1974 1974 5,000 4.65436 5,000 12,500 ** Civil Rights Division (excluding immigration-related penalties) 18 U.S.C. 248(c)(2)(B)(i) Freedom of Access to Clinic Entrances Act of 1994 (“FACE Act”); Nonviolent physical obstruction, first violation 28 CFR 85.3(b)(1)(i) 1994 1994 10,000 1.59089 16,000 15,909 18 U.S.C. 248(c)(2)(B)(ii) FACE Act; Nonviolent physical obstruction, subsequent violation 28 CFR 85.3(b)(1)(ii) 1994 1994 15,000 1.59089 16,500 23,863 18 U.S.C. 248(c)(2)(B)(i) FACE Act; Violation other than a nonviolent physical obstruction, first violation 28 CFR 85.3(b)(2)(i) 1994 1994 15,000 1.59089 16,500 23,863 18 U.S.C. 248(c)(2)(B)(ii) FACE Act; Violation other than a nonviolent physical obstruction, subsequent violation 28 CFR 85.3(b)(2)(ii) 1994 1994 25,000 1.59089 37,500 39,772 42 U.S.C. 3614(d)(1)(C)(i) Fair Housing Act of 1968; first violation 28 CFR 85.3(b)(3)(i) 1988 1988 50,000 1.97869 75,000 98,935 42 U.S.C. 3614(d)(1)(C)(ii) Fair Housing Act of 1968; subsequent violation 28 CFR 85.3(b)(3)(ii) 1988 1988 100,000 1.97869 150,000 197,869 42 U.S.C. 12188(b)(2)(C)(i) Americans With Disabilities Act; Public accommodations for individuals with disabilities, first violation 28 CFR 36.504(a)(3)(i) 1990 1990 50,000 1.78156 75,000 89,078 42 U.S.C. 12188(b)(2)(C)(ii) Americans With Disabilities Act; Public accommodations for individuals with disabilities, subsequent violation 28 CFR 36.504(a)(3)(ii) 1990 1990 100,000 1.78156 150,000 178,156 50 U.S.C. App. 597(b)(3) Servicemembers Civil Relief Act of 2003; first violation 28 CFR 85.3(b)(4)(i) 2010 2010 55,000 1.08745 60,000 59,810 50 U.S.C. App. 597(b)(3) Servicemembers Civil Relief Act of 2003; subsequent violation 28 CFR 85.3(b)(4)(ii) 2010 2010 110,000 1.08745 120,000 119,620 Criminal Division 18 U.S.C. 983(h)(1) Civil Asset Forfeiture Reform Act of 2000; Penalty for Frivolous Assertion of Claim 2000 2000 Min. 250
  • Max. 5,000
  • 1.36689 Min. 250
  • Max. 5,000
  • Min. 342
  • Max. 6,834
  • 18 U.S.C. 1956(b) Money Laundering Control Act of 1986; Violation 8 1986 1986 10,000 2.15628 10,000 21,563 DEA 21 U.S.C. 844a(a) Anti-Drug Abuse Act of 1988; Possession of small amounts of controlled substances (per violation) 28 CFR 76.3(a) 1988 1988 10,000 1.97869 11,000 19,787 21 U.S.C. 961(1) Controlled Substance Import Export Act; Drug abuse, import or export 28 CFR 85.3(d) 1970 1970 25,000 6.03650 27,500 68,750 ** 21 U.S.C. 842(c)(1)(A) Controlled Substances Act (“CSA”); Violations of 842(a)—other than (5), (10) and (16)—Prohibited acts re: controlled substances (per violation) 1970 1970 25,000 6.03650 25,000 62,500 ** 21 U.S.C. 842(c)(1)(B) CSA; Violations of 842(a)(5) and (10)—Prohibited acts re: controlled substances 1998 1998 10,000 1.45023 10,000 14,502 21 U.S.C. 842(c)(1)(C) CSA; Violation of 825(e) by importer, exporter, manufacturer, or distributor—False labeling of anabolic steroids (per violation) 2014 2014 500,000 1.00171 500,000 500,855 21 U.S.C. 842(c)(1)(D) CSA; Violation of 825(e) at the retail level—False labeling of anabolic steroids (per violation) 2014 2014 1,000 1.00171 1,000 1,002 21 U.S.C. 842(c)(2)(C) CSA; Violation of 842(a)(11) by a business—Distribution of laboratory supply with reckless disregard.9 1996 1996 250,000 1.50245 250,000 375,613 21 U.S.C. 856(d) Illicit Drug Anti-Proliferation Act of 2003; Maintaining drug-involved premises.10 2003 2003 250,000 1.28561 250,000 321,403 Immigration-Related Penalties 8 U.S.C. 1324a(e)(4)(A)(i) Immigration Reform and Control Act of 1986 (“IRCA”); Unlawful employment of aliens, first order (per unauthorized alien) 28 CFR 68.52(c)(1)(i) 1986 1986 Min. 250
  • Max. 2,000
  • 2.15628 Min. 375
  • Max. 3,200
  • Min. 539
  • Max. 4,313
  • 8 U.S.C. 1324a(e)(4)(A)(ii) IRCA; Unlawful employment of aliens, second order (per such alien) 28 CFR 68.52(c)(1)(ii) 1986 1986 Min. 2,000
  • Max. 5,000
  • 2.15628 Min. 3,200
  • Max. 6,500
  • Min. 4,313
  • Max. 10,781
  • 8 U.S.C. 1324a(e)(4)(A)(iii) IRCA; Unlawful employment of aliens, subsequent order (per such alien) 28 CFR 68.52(c)(1)(iii) 1986 1986 Min. 3,000
  • Max. 10,000
  • 2.15628 Min. 4,300
  • Max. 16,000
  • Min. 6,469
  • Max. 21,563
  • 8 U.S.C. 1324a(e)(5) IRCA; Paperwork violation (per relevant individual) 28 CFR 68.52(c)(5) 1986 1986 Min. 100
  • Max. 1,000
  • 2.15628 Min. 110
  • Max. 1,100
  • Min. 216
  • Max. 2,156
  • 8 U.S.C. 1324a (note) IRCA; Violation relating to participating employer's failure to notify of final nonconfirmation of employee's employment eligibility (per relevant individual) 28 CFR 68.52(c)(6) 1996 1996 Min. 500
  • Max. 1,000
  • 1.50245 Min. 550
  • Max. 1,100
  • Min. 751
  • Max. 1,502
  • 8 U.S.C. 1324a(g)(2) IRCA; Violation/prohibition of indemnity bonds (per violation) 28 CFR 68.52(c)(7) 1986 1986 1,000 2.15628 1,100 2,156 8 U.S.C. 1324b(g)(2)(B)(iv)(I) IRCA; Unfair immigration-related employment practices, first order (per individual discriminated against) 28 CFR 68.52(d)(1)(viii) 1990 1990 Min. 250
  • Max. 2,000
  • 1.78156 Min, 375
  • Max. 3,200
  • Min. 445
  • Max. 3,563
  • 8 U.S.C. 1324b(g)(2)(B)(iv)(II) IRCA; Unfair immigration-related employment practices, second order (per individual discriminated against) 28 CFR 68.52(d)(1)(ix) 1990 1990 Min. 2,000
  • Max. 5,000
  • 1.78156 Min. 3,200
  • Max. 6,500
  • Min. 3,563
  • Max. 8,908
  • 8 U.S.C. 1324b(g)(2)(B)(iv)(III) IRCA; Unfair immigration-related employment practices, subsequent order (per individual discriminated against) 28 CFR 68.52(d)(1)(x) 1990 1990 Min. 3,000
  • Max. 10,000
  • 1.78156 Min. 4,300
  • Max. 16,000
  • Min. 5,345
  • Max. 17,816
  • 8 U.S.C. 1324b(g)(2)(B)(iv)(IV) IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against) 28 CFR 68.52(d)(1)(xii) 1990 1990 Min. 100
  • Max. 1,000
  • 1.78156 Min. 110
  • Max. 1,100
  • Min. 178
  • Max. 1,782
  • 8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) 28 CFR 68.52(e)(1)(i) 1990 1990 Min. 250
  • Max. 2,000
  • 1.78156 Min. 375
  • Max. 3,200
  • Min. 445
  • Max. 3,563
  • 8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) 28 CFR 68.52(e)(1)(iii) 1990 1990 Min. 2,000
  • Max. 5,000
  • 1.78156 Min. 3,200
  • Max. 6,500
  • Min. 3,563
  • Max. 8,908
  • 8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) 28 CFR 68.52(e)(1)(ii) 1996 1996 Min. 250
  • Max. 2,000
  • 1.50245 Min. 275
  • Max. 2,200
  • Min. 376
  • Max. 3,005
  • 8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) 28 CFR 68.52(e)(1)(iv) 1996 1996 Min. 2,000
  • Max. 5,000
  • 1.50245 Min. 2,200
  • Max. 5,500
  • Min. 3,005
  • Max. 7,512
  • FBI 49 U.S.C. 30505(a) National Motor Vehicle Title Identification System; Violation (per violation) 1994 1994 1,000 1.59089 1,000 1,591 Office of Justice Programs 42 U.S.C. 3789g(d) Confidentiality of information; State and Local Criminal History Record Information Systems—Right to Privacy Violation 28 CFR 20.25 1979 1979 10,000 3.16274 11,000 27,500 ** ** Adjusted penalty capped at 2.5 times the penalty amount in effect on November 2, 2015, the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701 (“2015 Amendments”). See id. § 701(b)(2) (amending section 5(b)(2)(C) of the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to provide that the amount of the first inflation adjustment after the date of enactment of the 2015 Amendments “shall not exceed 150 percent of the amount of that civil monetary penalty on the date of enactment of the [2015 Amendments].”). 1 The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation or statute as of November 2, 2015. 2 All figures set forth in this table are maximum penalties, unless otherwise indicated. 3 Section 3729(a)(1) of Title 31 states that any person who violates this section “is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. 3729(a)(1) (2012) (citation omitted). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to “not less than 2 times the amount of damages which the Government sustains because of the act of that person.” Id. § 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1). 4 Section 8706(a)(1) of Title 41 states that “[t]he Federal Government in a civil action may recover from a person—(1) that knowingly engages in conduct prohibited by section 8702 of this title a civil penalty equal to—(A) twice the amount of each kickback involved in the violation; and (B) not more than $10,000 for each occurrence of prohibited conduct . . . .” 41 U.S.C. 8706(a)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706. 5 Section 216(b) of Title 18 states the civil penalty should be no “more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater.” 18 U.S.C. 216(b) (2012). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under § 216(b). 6 Section 2105(b) of Title 41 states, “(b) Civil penalties.—The Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence—(1) an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and (2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct.” 41 U.S.C. 2105(b) (2012). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2). 7 The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2012)). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015). 8 Section 1956(b)(1) of Title 18 states that “[w]hoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of—(A) the value of the property, funds, or monetary instruments involved in the transaction; or (B) $10,000.” 18 U.S.C. 1956(b)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b). 9 Section 842(c)(2)(C) of Title 21 states that “[i]n addition to the penalties set forth elsewhere in this subchapter or subchapter II of this chapter, any business that violates paragraph (11) of subsection (a) of this section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under this section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater.” 21 U.S.C. 842(c)(2)(C) (2012). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C). 10 Section 856(d)(1) of Title 21 states that “(1) Any person who violates subsection (a) of this section shall be subject to a civil penalty of not more than the greater of—(A) $250,000; or (B) 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person.” 21 U.S.C. 856(d)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1).

    Currently, 28 CFR 85.3 provides for inflation adjustments of a number of civil penalties enforced by the Department, pursuant to the former inflation adjustment statutory provisions. This rule revises § 85.3 to provide that the inflation adjustments set forth in that section will continue to apply to violations occurring on or before November 2, 2015, the date of enactment of the 2015 Amendments, as well as to assessments made before August 1, 2016, whose associated violations occurred after November 2, 2015. Other existing Department regulations provide for inflation adjustments of other civil penalties under prior law, such as the civil penalties under certain provisions of the immigration laws in 28 CFR 68.52. Those other existing regulations are also being revised to provide that the existing regulatory inflation adjustments will continue to apply to violations occurring on or before November 2, 2015, as well as to assessments made before August 1, 2016, whose associated violations occurred after November 2, 2015.

    A new regulatory provision, § 85.5, includes a comprehensive table setting forth the penalty amounts for civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015. The table in § 85.5 is the same as Table A in this preamble, except that it only includes the first three descriptive columns for each civil penalty provision, and the last two columns setting forth the penalty amounts in effect on November 2, 2015 (the date of enactment of the 2015 Amendments) and the new adjusted civil penalty amounts taking effect for civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015. (The other columns in Table A, which show how the adjusted civil penalty amounts are calculated, are provided for informational purposes in this preamble, but are not being codified in the Code of Federal Regulations.) Those instances where the civil penalty amount for the initial adjustment is capped at 2.5 times the civil penalty amount currently in effect, as provided in the 2015 Amendments, are noted by footnote in the table in § 85.5.2

    2 In rare instances, the adjusted civil penalty amount under this rule is less than the penalty amount currently in effect, because, in these cases, the use of rounders under the former law increased a particular penalty by an increment exceeding the actual rate of inflation. For example, in 2014, the Department published a rule increasing the $55,000 civil penalty for a first violation of the Servicemembers Civil Relief Act, 50 U.S.C. 4041(b)(3), by an increment of $5,000 to $60,000. 79 FR 17434-01 (Mar. 28, 2014). Under this rule, taking account of the actual rate of inflation since enactment, the civil penalty amount is adjusted slightly lower to $59,810.

    This rule adjusts for inflation civil monetary penalties within the jurisdiction of the Justice Department for purposes of the Inflation Adjustment Act, as amended. Other agencies are responsible for the inflation adjustments of certain other civil monetary penalties that the Department's litigating components bring suit to collect. The reader should consult the regulations of those other agencies for inflation adjustments to those penalties.

    Effective Date of Adjusted Civil Penalty Amounts

    In this rule, the adjusted civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Amendments. Therefore, violations occurring on or before November 2, 2015, and assessments made prior to August 1, 2016, whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts set forth in the Department's existing regulations in 28 CFR parts 20, 22, 36, 68, 71, 76 and 85 (or as set forth by statute if the amount has not yet been adjusted by regulation).

    Statutory and Regulatory Analyses Administrative Procedure Act, 5 U.S.C. 553

    The Attorney General is publishing this rule as an interim final rule, without prior notice and comment, as authorized by the 2015 Amendments. The Department is providing a 60-day period for public comment after publication of this rule and welcomes public comment on the changes made to reflect the revised process for calculating inflation adjustments under the Inflation Adjustment Act, as amended by the 2015 Amendments.

    Regulatory Flexibility Act

    Only those entities that are determined to have violated Federal law and regulations would be affected by the increase in the civil penalty amounts made by this rule. A Regulatory Flexibility Act analysis is not required for this rule because publication of a notice of proposed rulemaking is not required. See 5 U.S.C. 603(a).

    Executive Orders 12866 and 13563—Regulatory Review

    This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review” section 1, General Principles of Regulation.

    The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, Regulatory Planning and Review, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

    Both Executive Orders 12866 and 13563 direct agencies, in certain circumstances, 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). As stated above, the statute authorizes the Department, with the concurrence of the Director of the Office of Management and Budget, to make a determination in certain circumstances to increase a civil penalty by less than the otherwise required amount. However, the Department is not invoking that authority in this rule. The adjustments to existing civil monetary penalties set forth in this rule are calculated pursuant to the statutory formula.

    Executive Order 13132—Federalism

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

    Executive Order 12988—Civil Justice Reform

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

    Unfunded Mandates Reform Act of 1995

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

    Congressional Review Act

    This rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804. It will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    List of Subjects 28 CFR Part 20

    Classified information, Crime, Intergovernmental relations, Investigations, Law Enforcement, Penalties, Privacy, Research, and Statistics.

    28 CFR Part 22

    Crime, Juvenile delinquency, Penalties, Privacy, Research, and Statistics.

    28 CFR Part 36

    Administrative practice and procedure, Alcoholism, Americans with disabilities, Buildings and facilities, Business and industry, Civil rights, Consumer protection, Drug abuse, Handicapped, Historic preservation, Individuals with disabilities, Penalties, Reporting and recordkeeping requirements.

    28 CFR Part 68

    Administrative practice and procedure, Aliens, Citizenship and naturalization, Civil rights, Discrimination in employment, Employment, Equal employment opportunity, Immigration, Nationality, Non-discrimination.

    28 CFR Part 71

    Administrative practice and procedure, Claims, Fraud, Organization and function (Government agencies), Penalties.

    28 CFR Part 76

    Administrative practice and procedure, Drug abuse, Drug traffic control, Penalties.

    28 CFR Part 85

    Administrative practice and procedure, Penalties.

    Accordingly, for the reasons set forth in the preamble, chapter I of Title 28 of the Code of Federal Regulations is amended as follows:

    PART 20—CRIMINAL JUSTICE INFORMATION SYSTEMS 1. The authority citation for part 20 continues to read as follows: Authority:

    28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42 U.S.C. 3711, et seq.; Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as amended by Pub. L. 99-569, 100 Stat. 3190, 3196; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    2. In § 20.25, add after the first sentence a new sentence to read as follows:
    § 20.25 Penalties.

    * * * For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5. * * *

    PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION 3. The authority citation for part 22 continues to read as follows: Authority:

    Secs. 801(a), 812(a), Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); secs. 262(b), 262(d), Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 99-509, and Pub. L. 98-473); and secs. 1407(a) and 1407(d) of the Victims of Crime Act of 1984, 42 U.S.C. 10601, et seq., Pub. L. 98-473; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    4. In § 22.29 add a new sentence at the end to read as follows:
    § 22.29 Sanctions.

    * * * For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5.

    PART 36—NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES 5. The authority citation for part 36 continues to read as follows: Authority:

    5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12188(b); Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    6. In § 36.504, revise paragraphs (a)(3)(i) and (a)(3)(ii), to read as follows:
    § 36.504 Relief.

    (a) * * *

    (3) * * *

    (i) Not exceeding $50,000 for a first violation occurring before September 29, 1999, and not exceeding $55,000 for a first violation occurring on or after September 29, 1999, and before April 28, 2014, and not exceeding $75,000 for a first violation occurring on or after April 28, 2014, except that, for civil penalties assessed after August 1, 2016, for a first violation occurring after November 2, 2015, the civil penalty shall not exceed the applicable amount set forth in 28 CFR 85.5.

    (ii) Not exceeding $100,000 for any subsequent violation occurring before September 29, 1999, and not exceeding $110,000 for any subsequent violation occurring on or after September 29, 1999, and before April 28, 2014, and not exceeding $150,000 for any subsequent violation occurring on or after April 28, 2014, except that, for civil penalties assessed after August 1, 2016, for any subsequent violation occurring after November 2, 2015, the civil penalty shall not exceed the applicable amount set forth in 28 CFR 85.5.

    PART 68—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD 7. The authority citation for part 68 continues to read as follows: Authority:

    5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 1324c.

    8. In § 68.52, revise paragraphs (c)(8), (d)(2), and (e)(3), to read as follows:
    § 68.52 Final order of the Administrative Law Judge.

    (c) * * *

    (8) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (c) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.

    (d) * * *

    (2) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (d) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.

    (e) * * *

    (3) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (e) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.

    PART 71—IMPLEMENTATION OF THE PROVISIONS OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 9. The authority citation for part 71 continues to read as follows: Authority:

    5 U.S.C. 301; 28 U.S.C. 509, 510; 31 U.S.C. 3801-3812; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    10. In § 71.3, paragraph (a) introductory text and paragraph (f) introductory text are revised, to read as follows:
    § 71.3 Basis for civil penalties and assessments.

    (a) Any person shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each claim listed in paragraphs (a)(1) through (a)(4) of this section made before September 29, 1999, and not more than $5,500 for each such claim made on or after September 29, 1999, and not more than the applicable amount as provided in 28 CFR 85.5 for civil penalties assessed after August 1, 2016, for each such claim made after November 2, 2015, if that person makes a claim that the person knows or has reason to know:

    (f) Any person shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each statement listed in paragraphs (f)(1) and (f)(2) of this section made before September 29, 1999, and not more than $5,500 for each such statement made on or after September 29, 1999, and not more than the applicable amount as provided in 28 CFR 85.5 for civil penalties assessed after August 1, 2016 for each such statement made after November 2, 2015, if that person makes a written statement that:

    PART 76—RULES OF PROCEDURE FOR ASSESSMENT OF CIVIL PENALTIES FOR POSSESSION OF CERTAIN CONTROLLED SUBSTANCES 11. The authority citation for part 76 continues to read as follows: Authority:

    5 U.S.C. 301; 21 U.S.C. 844a, 875, 876; 28 U.S.C. 509, 510; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    12. In § 76.3 add a new sentence at the end of paragraph (a) to read as follows:
    § 76.3 Basis for civil penalty.

    (a) * * * For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5.

    PART 85—CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT 13. The authority citation for part 85 is revised to read as follows: Authority:

    5 U.S.C. 301, 28 U.S.C. 503; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321; Pub. L. 114-74, section 701, 28 U.S.C. 2461 note.

    14. Revise § 85.1 to read as follows:
    § 85.1 In general.

    (a) For violations occurring on or before November 2, 2015, and for civil penalties assessed before August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice and listed in section 85.3 are adjusted as set forth in that section, in accordance with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 104-410, 104 Stat. 890, in effect prior to November 2, 2015.

    (b) For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice are adjusted as set forth in section 85.5, in accordance with the requirements of the Bipartisan Budget Act of 2015, Public Law 114-74, section 701 (Nov. 2, 2015), 28 U.S.C. 2461 note.

    § 85.2 [Removed and reserved]
    15. Remove and reserve § 85.2.
    16. In § 85.3, revise the heading and the introductory text to read as follows:
    § 85.3 Adjustments to penalties for violations occurring on or before November 2, 2015.

    For all violations occurring on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the respective components of the Department, as set forth in paragraphs (a) through (d) of this section, are adjusted as provided in this section in accordance with the inflation adjustment procedures prescribed in section 5 of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, as in effect prior to November 2, 2015. The adjusted penalties set forth in paragraphs (a), (c), and (d) of this section are effective for violations occurring on or after September 29, 1999, and on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the adjusted penalty amounts in section 85.5.

    17. Add § 85.5 to read as follows:
    § 85.5 Adjustments to penalties for violations occurring after November 2, 2015.

    For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the following table.

    U.S.C. Citation Name/Description CFR Citation DOJ Penalty as of 11/2/15
  • ($) 1
  • New DOJ penalty 2
    ATF 18 U.S.C. 922(t)(5) Brady Law—Nat'l Instant Criminal Check System; Transfer of firearm without checking NICS 5,000 8,162 18 U.S.C. 924(p) Child Safety Lock Act; Secure gun storage or safety device, violation 2,500 2,985 Civil Division 12 U.S.C. 1833a(b)(1) Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) Violation 28 CFR 85.3(a)(6) 1,100,000 1,893,610 12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing) (per day) 28 CFR 85.3(a)(7) 1,100,000 1,893,610 12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing) 28 CFR 85.3(a)(7) 5,500,000 9,468,050 22 U.S.C. 2399b(a)(3)(A) Foreign Assistance Act; Fraudulent Claim for Assistance (per act) 28 CFR 85.3(a)(8) 2,200 5,500 ** 31 U.S.C. 3729(a) False Claims Act; 3 Violations 28 CFR 85.3(a)(9) Min, 5,500 Min. 10,781 Max. 11,000 Max. 21,563 31 U.S.C. 3802(a)(1) Program Fraud Civil Remedies Act; Violations Involving False Claim (per claim) 28 CFR 71.3(a) 5,500 10,781 31 U.S.C. 3802(a)(2) Program Fraud Civil Remedies Act; Violation Involving False Statement (per statement) 28 CFR 71.3(f) 5,500 10,781 40 U.S.C. 123(a)(1)(A) Federal Property and Administrative Services Act; Violation Involving Surplus Government Property (per act) 28 CFR 85.3(a)(12) 2,200 5,500 ** 41 U.S.C. 8706(a)(1)(B) Anti-Kickback Act; Violation Involving Kickbacks 4 (per occurrence) 28 CFR 85.3(a)(13) 11,000 21,563 18 U.S.C. 2723(b) Driver's Privacy Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records—Substantial Non-compliance (per day) 5,000 7,954 18 U.S.C. 216(b) Ethics Reform Act of 1989; Penalties for Conflict of Interest Crimes 5 (per violation) 28 CFR 85.3(c) 55,000 94,681 41 U.S.C. 2105(b)(1) Office of Federal Procurement Policy Act; 6 Violation by an individual (per violation) 50,000 98,935 41 U.S.C. 2105(b)(2) Office of Federal Procurement Policy Act; 6 Violation by an organization (per violation) 500,000 989,345 42 U.S.C. 5157(d) Disaster Relief Act of 1974;7 Violation (per violation) 5,000 12,500 ** Civil Rights Division (excluding immigration-related penalties) 18 U.S.C. 248(c)(2)(B)(i) Freedom of Access to Clinic Entrances Act of 1994 (“FACE Act”); Nonviolent physical obstruction, first violation 28 CFR 85.3(b)(1)(i) 16,000 15,909 18 U.S.C. 248(c)(2)(B)(ii) FACE Act; Nonviolent physical obstruction, subsequent violation 28 CFR 85.3(b)(1)(ii) 16,500 23,863 18 U.S.C. 248(c)(2)(B)(i) FACE Act; Violation other than a nonviolent physical obstruction, first violation 28 CFR 85.3(b)(2)(i) 16,500 23,863 18 U.S.C. 248(c)(2)(B)(ii) FACE Act; Violation other than a nonviolent physical obstruction, subsequent violation 28 CFR 85.3(b)(2)(ii) 37,500 39,772 42 U.S.C. 3614(d)(1)(C)(i) Fair Housing Act of 1968; first violation 28 CFR 85.3(b)(3)(i) 75,000 98,935 42 U.S.C. 3614(d)(1)(C)(ii) Fair Housing Act of 1968; subsequent violation 28 CFR 85.3(b)(3)(ii) 150,000 197,869 42 U.S.C. 12188(b)(2)(C)(i) Americans With Disabilities Act; Public accommodations for individuals with disabilities, first violation 28 CFR 36.504(a)(3)(i) 75,000 89,078 42 U.S.C. 12188(b)(2)(C)(ii) Americans With Disabilities Act; Public accommodations for individuals with disabilities, subsequent violation 28 CFR 36.504(a)(3)(ii) 150,000 178,156 50 U.S.C. App. 597(b)(3) Servicemembers Civil Relief Act of 2003; first violation 28 CFR 85.3(b)(4)(i) 60,000 59,810 50 U.S.C. App. 597(b)(3) Servicemembers Civil Relief Act of 2003; subsequent violation 28 CFR 85.3(b)(4)(ii) 120,000 119,620 Criminal Division 18 U.S.C. 983(h)(1) Civil Asset Forfeiture Reform Act of 2000; Penalty for Frivolous Assertion of Claim Min. 250 Min. 342 Max. 5,000 Max. 6,834 18 U.S.C. 1956(b) Money Laundering Control Act of 1986; Violation 8 10,000 21,563 DEA 21 U.S.C. 844a(a) Anti-Drug Abuse Act of 1988; Possession of small amounts of controlled substances (per violation) 28 CFR 76.3(a) 11,000 19,787 21 U.S.C. 961(1) Controlled Substance Import Export Act; Drug abuse, import or export 28 CFR 85.3(d) 27,500 68,750 ** 21 U.S.C. 842(c)(1)(A) Controlled Substances Act (“CSA”); Violations of 842(a)—other than (5), (10) and (16)—Prohibited acts re: controlled substances (per violation) 25,000 62,500 ** 21 U.S.C. 842(c)(1)(B) CSA; Violations of 842(a)(5) and (10)—Prohibited acts re: controlled substances 10,000 14,502 21 U.S.C. 842(c)(1)(C) CSA; Violation of 825(e) by importer, exporter, manufacturer, or distributor—False labeling of anabolic steroids (per violation) 500,000 500,855 21 U.S.C. 842(c)(1)(D) CSA; Violation of 825(e) at the retail level—False labeling of anabolic steroids (per violation) 1,000 1,002 21 U.S.C. 842(c)(2)(C) CSA; Violation of 842(a)(11) by a business—Distribution of laboratory supply with reckless disregard 9 250,000 375,613 21 U.S.C. 856(d) Illicit Drug Anti-Proliferation Act of 2003; Maintaining drug-involved premises 10 250,000 321,403 Immigration-Related Penalties 8 U.S.C. 1324a(e)(4)(A)(i) Immigration Reform and Control Act of 1986 (“IRCA”); Unlawful employment of aliens, first order (per unauthorized alien) 28 CFR 68.52(c)(1)(i) Min. 375 Min. 539 Max 3,200 Max. 4,313 8 U.S.C. 1324a(e)(4)(A)(ii) IRCA; Unlawful employment of aliens, second order (per such alien) 28 CFR 68.52(c)(1)(ii) Min. 3,200 Min. 4,313 Max. 6,500 Max. 10,781 8 U.S.C. 1324a(e)(4)(A)(iii) IRCA; Unlawful employment of aliens, subsequent order (per such alien) 28 CFR 68.52(c)(1)(iii) Min. 4,300 Min. 6,469 Max. 16,000 Max. 21,563 8 U.S.C. 1324a(e)(5) IRCA; Paperwork violation (per relevant individual) 28 CFR 68.52(c)(5) Min. 110 Min. 216 Max. 1,100 Max. 2,156 8 U.S.C. 1324a (note) IRCA; Violation relating to participating employer's failure to notify of final nonconfirmation of employee's employment eligibility (per relevant individual) 28 CFR 68.52(c)(6) Min. 550 Min. 751 Max. 1,100 Max. 1,502 8 U.S.C. 1324a(g)(2) IRCA; Violation/prohibition of indemnity bonds (per violation) 28 CFR 68.52(c)(7) 1,100 2,156 8 U.S.C. 1324b(g)(2)(B)(iv)(I) IRCA; Unfair immigration-related employment practices, first order (per individual discriminated against) 28 CFR 68.52(d)(1)(viii) Min, 375 Min. 445 Max. 3,200 Max. 3,563 8 U.S.C. 1324b(g)(2)(B)(iv)(II) IRCA; Unfair immigration-related employment practices, second order (per individual discriminated against) 28 CFR 68.52(d)(1)(ix) Min. 3,200 Min. 3,563 Max. 6,500 Max. 8,908 8 U.S.C. 1324b(g)(2)(B)(iv)(III) IRCA; Unfair immigration-related employment practices, subsequent order (per individual discriminated against) 28 CFR 68.52(d)(1)(x) Min. 4,300 Min. 5,345 Max. 16,000 Max. 17,816 8 U.S.C. 1324b(g)(2)(B)(iv)(IV) IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against) 28 CFR 68.52(d)(1)(xii) Min. 110 Min. 178 Max. 1,100 Max. 1,782 8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) 28 CFR 68.52(e)(1)(i) Min. 375 Min. 445 Max. 3,200 Max. 3,563 8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) 28 CFR 68.52(e)(1)(iii) Min. 3,200 Min. 3,563 Max. 6,500 Max. 8,908 8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) 28 CFR 68.52(e)(1)(ii) Min. 275 Min. 376 Max. 2,200 Max. 3,005 8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) 28 CFR 68.52(e)(1)(iv) Min. 2,200 Min. 3,005 Max. 5,500 Max. 7,512 FBI 49 U.S.C. 30505(a) National Motor Vehicle Title Identification System; Violation (per violation) 1,000 1,591 Office of Justice Programs 42 U.S.C. 3789g(d) Confidentiality of information; State and Local Criminal History Record Information Systems—Right to Privacy Violation 28 CFR 20.25 11,000 27,500 ** ** Adjusted penalty capped at 2.5 times the penalty amount in effect on November 2, 2015, the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701 (“2015 Amendments”). See id. § 701(b)(2) (amending section 5(b)(2)(C) of the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to provide that the amount of the first inflation adjustment after the date of enactment of the 2015 Amendments “shall not exceed 150 percent of the amount of that civil monetary penalty on the date of enactment of the [2015 Amendments].”). 1 The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation or statute as of November 2, 2015. 2 All figures set forth in this table are maximum penalties, unless otherwise indicated. 3 Section 3729(a)(1) of Title 31 states that any person who violates this section “is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. 3729(a)(1) (2012) (citation omitted). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to “not less than 2 times the amount of damages which the Government sustains because of the act of that person.” Id. § 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1). 4 Section 8706(a)(1) of Title 41 states that “[t]he Federal Government in a civil action may recover from a person—(1) that knowingly engages in conduct prohibited by section 8702 of this title a civil penalty equal to—(A) twice the amount of each kickback involved in the violation; and (B) not more than $10,000 for each occurrence of prohibited conduct . . . .” 41 U.S.C. 8706(a)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706. 5 Section 216(b) of Title 18 states the civil penalty should be no “more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater.” 18 U.S.C. 216(b) (2012). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under § 216(b). 6 Section 2105(b) of Title 41 states, “(b) Civil penalties.—The Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence—(1) an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and (2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct.” 41 U.S.C. 2105(b) (2012). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2). 7 The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2012)). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015). 8 Section 1956(b)(1) of Title 18 states that “[w]hoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of—(A) the value of the property, funds, or monetary instruments involved in the transaction; or (B) $10,000.” 18 U.S.C. 1956(b)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b). 9 Section 842(c)(2)(C) of Title 21 states that “[i]n addition to the penalties set forth elsewhere in this subchapter or subchapter II of this chapter, any business that violates paragraph (11) of subsection (a) of this section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under this section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater.” 21 U.S.C. 842(c)(2)(C) (2012). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C). 10 Section 856(d)(1) of Title 21 states that “(1) Any person who violates subsection (a) of this section shall be subject to a civil penalty of not more than the greater of—(A) $250,000; or (B) 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person.” 21 U.S.C. 856(d)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1).
    Dated: June 24, 2016. Loretta E. Lynch, Attorney General.
    [FR Doc. 2016-15528 Filed 6-29-16; 8:45 am] BILLING CODE 4410-19-P
    DEPARTMENT OF THE TREASURY Financial Crimes Enforcement Network 31 CFR Part 1010 RIN 1506-AB33 Civil Monetary Penalty Adjustment and Table AGENCY:

    Financial Crimes Enforcement Network (“FinCEN”), Treasury.

    ACTION:

    Interim final rule.

    SUMMARY:

    FinCEN is amending the regulations under the Bank Secrecy Act to adjust the maximum amount or range, as set by statute, of certain civil monetary penalties within its jurisdiction to account for inflation. This action is being taken to implement the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

    DATES:

    Effective Date: August 1, 2016.

    Comment date: Written comments on this Interim Final Rulemaking must be submitted on or before August 1, 2016.

    ADDRESSES:

    Comments may be submitted, identified by Regulatory Identification Number (RIN) 1506-AB33, by any of the following methods:

    Federal E-rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Include RIN 1506-AB33 in the submission. Refer to Docket Number FINCEN-2014-0005.

    Mail: FinCEN, P.O. Box 39, Vienna, VA 22183. Include RIN 1506-AB33 in the body of the text.

    Please submit comments by one method only. Comments submitted in response to this interim final rulemaking will become a matter of public record. Therefore, you should submit only information that you wish to make publicly available.

    Inspection of comments: The public dockets for FinCEN can be found at Regulations.gov. Federal Register notices published by FinCEN are searchable by docket number, RIN, or document title, among other things, and the docket number, RIN, and title may be found at the beginning of the notice. FinCEN uses the electronic, Internet-accessible dockets at Regulations.gov as their complete, official-record docket; all hard copies of materials that should be in the docket, including public comments, are electronically scanned and placed in the docket. In general, FinCEN will make all comments publicly available by posting them on http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    The FinCEN Resource Center at (800) 767-2825 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, (“FCPIA Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”), requires each Federal agency to adjust its civil monetary penalties within its jurisdiction for inflation annually. Specifically, the FCPIA Act now requires agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking, and to make subsequent annual adjustments for inflation. The adjustment is based on the formula described in section 5(b) of the FCPIA Act. Increases are rounded to the nearest multiple of $1.

    To calculate the catch-up adjustment, agencies must identify, for each penalty subject to the FCPIA Act, the year and corresponding amount(s) for which the maximum penalty or range of minimum and maximum penalties was established or last adjusted, whichever is later. Agencies will adjust the penalty amount or range of penalty amounts based on the Consumer Price Index for all Urban Consumers (“CPI-U”) for the month of October 2015 using an inflation factor, or multiplier, that reflects the CPI-U increase for the year in which the maximum penalty or range of penalties was established or last adjusted.1 For the first penalty adjustment after the effective date of the 2015 Act, the amount of the increase shall not exceed 150 percent of the amount of a civil monetary penalty on November 2, 2015, the date of the enactment of the 2015 Act.

    1 OMB Memorandum M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, February 24, 2014 sets forth inflation factors. See, https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.

    Subsequent annual inflation adjustments will be based on any percentage change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U.

    FinCEN is authorized to impose civil monetary penalties for violations of the Bank Secrecy Act and its implementing regulations. Several of those penalties, such as the penalty under 31 U.S.C. 5321(a)(2), are not subject to adjustment under the FCPIA Act because they lack a stated dollar amount and are instead written solely as functions of violations. The penalties subject to adjustment under the FCPIA Act are as follows:

    • 12 U.S.C. 1829b(j), relating to recordkeeping violations for funds transfers. The $10,000 penalty amount set out in 12 U.S.C. 1929b(j) was last adjusted by statute in 1988. The inflation factor for 1988 is 1.97869. Multiplying the penalty amount of $10,000 by the inflation factor of 1.97869 results in an inflation adjusted maximum penalty amount of $19,787, when rounded to the nearest dollar.

    • 12 U.S.C. 1955, relating to willful or grossly negligent recordkeeping violations. The $10,000 penalty amount set out in 12 U.S.C. 1955 was last adjusted by statute in 1988. The inflation factor for 1988 is 1.97869. Multiplying the penalty amount of $10,000 by the inflation factor of 1.97869 results in an inflation adjusted maximum penalty amount of $19,787, when rounded to the nearest dollar.

    • 31 U.S.C. 5318(k)(3)(C), relating to failures to terminate correspondent relationships with a foreign bank. The $10,000 penalty amount set out in 31 U.S.C. 5318(k)(3)(C) was last adjusted by statute in 2001. The inflation factor for 2001 is 1.33842. Multiplying the current maximum penalty amount of $10,000 by the inflation factor of 1.33842 results in an inflation-adjusted maximum penalty amount of $13,384, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(1), relating to willful violations of Bank Secrecy Act requirements. The minimum and maximum amounts of $25,000 and $100,000 set out in 31 U.S.C. 5321(a)(1) were last adjusted by statute in 1986. The inflation factor for 1986 is 2.15628. Multiplying the current minimum and maximum penalty amounts of $25,000 and $100,000 by the inflation factor of 2.15628 results in an inflation-adjusted range of minimum and maximum penalty amounts of $53,907 and $215,628, respectively, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(5)(B)(i), relating to non-willful violations of foreign financial agency transactions. The $10,000 amount set out in 31 U.S.C. 5312(a)(5)(B)(i) was last adjusted by statute in 2004. The inflation factor for 2004 is 1.24588. Multiplying the current maximum penalty amount of $10,000 by the inflation factor of 1.24588 results in an inflation-adjusted maximum penalty of $12,459, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(5)(C), relating to willful violations of foreign financial agency transactions. The $100,000 amount set out in 31 U.S.C. 5321(a)(5)(C) was last adjusted by statute in 2004. The inflation factor for 2004 is 1.24588. Multiplying the current maximum penalty amount of $100,000 by the inflation factor of 1.24588 results in an inflation-adjusted maximum penalty amount of $124,588, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(6)(A), relating to negligent violations by a financial institution or non-financial trade or business. The $500 amount set out in 31 U.S.C. 5321(a)(6)(A) was last adjusted by statute in 1986. The inflation factor for 1986 is 2.15628. Multiplying the current maximum penalty amount of $500 by the inflation factor of 2.15628 results in an inflation-adjusted maximum penalty amount of $1,078, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(6)(B), relating to a pattern of negligent activity by a financial institution or non-financial trade or business. The $50,000 penalty amount set out in 31 U.S.C. 5321(a)(6)(B) was last adjusted by statute in 1992. The inflation factor for 1992 is 1.67728. Multiplying the current maximum penalty amount of $50,000 by the inflation factor of 1.67728 results in an inflation-adjusted maximum penalty amount of $83,864, when rounded to the nearest dollar.

    • 31 U.S.C. 5321(a)(7), relating to violations of due diligence requirements for private banking accounts or correspondent bank accounts involving foreign persons, the prohibition on correspondent accounts for shell banks, and any special measure. The $1,000,000 amount set out in 31 U.S.C. 5321(a)(7) was last adjusted by statute in 2001. The inflation factor for 2001 is 1.33842. Multiplying the current maximum penalty amount of $1,000,000 by the inflation factor of 1.33842 results in an inflation-adjusted maximum penalty amount of $1,338,420, when rounded to the nearest dollar.

    • 31 U.S.C. 5330(e), relating to the failure to register as a money transmitting business. The $5,000 penalty amount set out in 31 U.S.C. 5330(e) was last adjusted by statute in 1994. The inflation factor for 1994 is 1.59089. Multiplying the current penalty amount of $5,000 by the inflation factor of 1.59089 results in an inflation-adjusted penalty amount of $7,954, when rounded to the nearest dollar.

    The adjusted civil penalty amounts described in this rule are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Amendments. Therefore, violations occurring on or before November 2, 2015, and assessments made prior to August 1, 2016 whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts set forth in FinCEN's existing regulations.

    II. Request for Comment

    FinCEN invites comment on any and all aspects of the interim final rule.

    III. Effective Date

    The FCPIA Act mandates that inflation adjustments to civil monetary penalties be published through an interim final rulemaking to be published by July 1, 2016, and that the inflation-adjusted civil monetary penalties take effect not later than August 1, 2016.

    IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601(2). Because the FCPIA Act mandates that this rulemaking be an interim final rule, FinCEN is not publishing a general notice of proposed rulemaking. Thus, the Regulatory Flexibility Act does not apply to this interim final rule.

    V. Unfunded Mandates Act

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4 (“Unfunded Mandates Act”) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN has determined that this interim final rule will not result in expenditures by state, local, and tribal governments, or by the private sector, of $100 million or more. Accordingly, FinCEN has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

    VI. Executive Orders 13563 and 12866

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

    VII. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the interim final rule does not impose information collection requirements that would require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

    List of Subjects in 31 CFR Part 1010

    Authority delegations (Government agencies), Banks and banking, Currency, Investigations, Law enforcement, Reporting and recordkeeping requirements.

    Authority and Issuance

    For the reasons set forth in the preamble, Part 1010 of Chapter X of title 31 of the Code of Federal Regulations is amended as follows:

    PART 1010—GENERAL PROVISIONS 1. The authority citation for part 1010 is revised to read as follows: Authority:

    12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 and 5316-5332; title III, sec. 314, Pub. L. 107-56, 115 Stat. 307; sec. 701. Pub. L. 114-74, 129 Stat. 599.

    2. Amend § 1010.820 by adding paragraph (i) to read as follows:
    § 1010.820 Civil penalty.

    (i) For penalties that are assessed after August 1, 2016, see § 1010.821 for rules relating to the maximum amount of the penalty.

    3. Add § 1010.821 to read as follows:
    § 1010.821 Penalty adjustment and table.

    (a) Inflation adjustments. In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, (“FCPIA Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, FinCEN has set forth in paragraph (b) of this section adjusted maximum penalty amounts for each civil monetary penalty provided by law within its jurisdiction that is subject to the FCPIA Act. The adjusted civil monetary penalty amounts replace the amounts published in the statutes authorizing the assessment of penalties.

    (b) Maximum civil monetary penalties. The statutory penalty provisions and their adjusted maximum amounts or range of minimum and maximum amounts are set out in Table 1. The last column in the table provides the newly effective maximum penalty amounts or range of minimum and maximum amounts. These maximum penalty amounts do not, however, limit the total amount of a penalty in the case of a penalty that may be imposed for each day a violation continues.

    Table 1 of § 1010.821—Penalty Adjustment and Table U.S. Code citation Civil monetary penalty description Statutory penalties as last amended by statute
  • ($)
  • New maximum penalty amounts or range of
  • minimum and
  • maximum penalty amounts for
  • penalties
  • assessed after 8/1/2016
  • ($)
  • 12 U.S.C. 1829b(j) Relating to Recordkeeping Violations For Funds Transfers 10,000 19,787 12 U.S.C. 1955 Willful or Grossly Negligent Recordkeeping Violations 10,000 19,787 31 U.S.C. 5318(k)(3)(C) Failure to Terminate Correspondent Relationship with Foreign Bank 10,000 13,384 31 U.S.C. 5321(a)(1) General Civil Penalty Provision for Willful Violations of Bank Secrecy Act Requirements 25,000-$100,000 53,907-$215,628 31 U.S.C. 5321(a)(5)(B)(i). Foreign Financial Agency Transaction—Non-Willful Violation of Transaction 10,000 12,459 31 U.S.C. 5321(a)(5)(C) Foreign Financial Agency Transaction—Willful Violation of Transaction 100,000 124,588 31 U.S.C. 5321(a)(6)(A) Negligent Violation by Financial Institution or Non-Financial Trade or Business 500 1,078 31 U.S.C. 5321(a)(6)(B) Pattern of Negligent Activity by Financial Institution or Non-Financial Trade or Business 50,000 83,864 31 U.S.C. 5321(a)(7) Violation of Certain Due Diligence Requirements, Prohibition on Correspondent Accounts for Shell Banks, and Special Measures 1,000,000 1,338,420 31 U.S.C. 5330(e) Civil Penalty for Failure to Register as Money Transmitting Business 5,000 7,954
    Dated: June 28, 2016. Jamal El-Hindi, Acting Director, Financial Crimes Enforcement Network.
    [FR Doc. 2016-15653 Filed 6-29-16; 8:45 am] BILLING CODE 4810-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 100 and 165 [Docket No. USCG-2016-0556] Madison Regatta, Inc./Madison Regatta, Madison, IN AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulations.

    SUMMARY:

    The Coast Guard will enforce special local regulations and a safety zone for the Madison Regatta for all waters of the Ohio River, beginning at mile marker 555.0 and ending at mile marker 560.0, Madison, IN. These actions are necessary to protect persons, property, and infrastructure from potential damage and safety hazards associated with a regatta taking place on the Ohio River. During the enforcement period, deviation from the regulations or safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or a designated representative.

    DATES:

    The regulations in 33 CFR 100.801, Table 1, Sector Ohio Valley, No. 16 and 33 CFR 165.801, Table 1, Sector Ohio Valley, No. 52 will be enforced from July 1 through July 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Petty Officer Caloeb Gandy, U.S. Coast Guard; telephone 502-779-5334, Email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the special local regulations listed in 33 CFR 100.801, Table 1, Sector Ohio Valley, No. 16, and the safety zone listed in 33 CFR 165.801, Table 1, Sector Ohio Valley, No. 52 during the Madison Regatta as follows:

    July 1, 2016 from 8:00 a.m. to 6:00 p.m. July 2, 2016 from 7:00 a.m. to 10:30 p.m. July 3, 2016 from 7:00 a.m. to 6:30 p.m.

    Under the provisions of 33 CFR part 100 and 33 CFR part 165, a vessel may not enter the regulated area, unless it receives permission from the COTP Ohio Valley or a designated representative. Spectator vessels may safely transit outside the regulated area but may not anchor, block, loiter in, or impede the transit of race participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

    This notice of enforcement is issued under authority of 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 enforcement periods for these regulations via the Local Notice to Mariners (LNM) and Broadcast Notice to Mariners (BNM).

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15506 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0280] Drawbridge Operation Regulation; Chambers Creek, Steilacoom, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of temporary deviation from regulations; request for comments.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Chambers Creek Burlington Northern Santa Fe railroad vertical lift railroad bridge across Chambers Creek, mile 0.01, near Steilacoom in Pierce County, WA. This deviation will test a change to the drawbridge operation schedule to determine whether a permanent change to the schedule is appropriate. This test deviation will modify the existing regulation to add an advance notification requirement for obtaining bridge openings during designated evening hours.

    DATES:

    This deviation is effective from 12:01 on July 1, 2016 to 12:01 on December 27, 2016.

    Comments and related material must reach the Coast Guard on or before November 22, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0280 using Federal eRulemaking Portal at http://www.regulations.gov.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    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: I. Background, Purpose and Legal Basis

    The Chambers Creek Burlington Northern Santa Fe railroad vertical lift railroad bridge across Chambers Creek, mile 0.01, near Steilacoom in Pierce County, WA has a vertical clearance of 10ft in the closed to navigation position and 50ft of vertical clearance in the open to navigation position (reference plane is MHW elevation of 12.2 feet). The bridge currently operates under 33 CFR 117.5; which requires the bridge to open anytime when a request or signal to open is given.

    The bridge owner, Burlington Northern Santa Fe Railroad, has observed minimal to no usage of the drawbridge between 10 p.m. and 6 a.m. and has requested to test this schedule to see if it better balances the needs of marine and rail traffic. The following facts support BNSF's proposal: (1) Over the last 6 years only 2% of the subject bridge lifts have occurred between the hours of 10 p.m. and 6 a.m., which equates to approximately 5 openings a year, (2) from February 2009 to June 2015 there were 1932 total openings of which only 40 occurred between the hours of 10 p.m. and 6 a.m., and (3) the navigation traffic consists primarily of the tenants of Chambers Bay marina (recreational users) that are members of the Chambers Bay Boating Association.

    The Coast Guard is publishing this temporary deviation to test the proposed schedule change to determine whether a permanent change to the schedule is appropriate to better balance the needs of marine and rail traffic.

    Under this temporary deviation, in effect from 12:01 on July 1, 2016 to 12:01 December 27, 2016, the subject bridge shall open on signal, except from 10 p.m. to 6 a.m. the draw shall open on signal if at least 4 hours notice is given. The bridge will be required to open as soon a possible, no later than 1 hour after notification, for vessels engaged in emergency response.

    The Coast Guard will inform the users of the waterways of this temporary deviation through our Local and Broadcast Notices to Mariners and through direct outreach with the Chambers Creek Boating Association so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation. Vessels able to pass underneath the bridge in the closed position may do so at anytime.

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

    II. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    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).

    Documents mentioned in this notice of temporary deviation, 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.

    Dated: June 23, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-15439 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0473] RIN 165-AA00 Safety Zones; Marine Events Held in the Sector Long Island Sound Captain of the Port Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing four temporary safety zones for fireworks displays 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 during these events. Entry into, transit through, mooring or anchoring within these regulated areas is prohibited unless authorized by COTP Sector Long Island Sound.

    DATES:

    This rule is effective without actual notice from June 30, 2016 through July 7, 2016. For the purposes of enforcement, actual notice will be used from the date the rule was signed, June 15, 2016, through June 30, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0473 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, contact Petty Officer Jay TerVeen, Prevention Department, Coast Guard Sector Long Island Sound, telephone (203) 468-4446, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register LIS Long Island Sound NPRM Notice of Proposed Rulemaking NAD 83 North American Datum 1983 II. Background Information and Regulatory History

    This rulemaking establishes four safety zones for fireworks displays. Each event and its corresponding regulatory history are discussed below.

    The Boys and Girls Club of Bellport-Beach Ball 2016 Fireworks Display is a recurring marine event with regulatory history. A safety zone was established for this event in 2015 via a temporary final rule entitled, “Safety Zones; Marine Events held in the Sector Long Island Sound Captain of the Port Zone.” This rulemaking was published on May 18, 2015 in the Federal Register (80 FR 28176).

    The Arts Project Cherry Grove Fireworks Display is a recurring marine event with regulatory history and is cited in 33 CFR 165.151, Table 1 to § 165.151, section 6.5. This event has been included in this rule due to deviation from the cite date.

    The Salute to Veterans Fireworks Display is a recurring marine event with regulatory history and is cited in 33 CFR 165.151, Table 1 to § 165.151, section 6.4. This event has been included in this rule due to deviation from the cite date.

    The Clinton Chamber of Commerce Fireworks Display is a recurring marine event with regulatory history. A safety zone was established for this event in 2015 via a temporary final rule entitled, “Safety Zones; Marine Events held in the Sector Long Island Sound Captain of the Port Zone.” This rulemaking was published on August 14, 2015 in the Federal Register (80 FR 48692).

    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. The event sponsors were late in submitting the marine event applications. These late submissions did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before these events take place. For that reason, issuing an NPRM would be impracticable.

    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 Coast Guard is issuing this temporary rule under authority in 33 U.S.C. 1231. The Captain of the Port (COTP) Long Island Sound has determined that the safety zones established by this temporary final rule are necessary to provide for the safety of life on navigable waterways before, during and after these scheduled events.

    IV. Discussion of the Rule

    This rule establishes four safety zones for four fireworks displays. The location of these safety zones are as follows:

    Fireworks Displays Safety Zones 1 Boys & Girls of Bellport-Beach Ball 2016 Location: All navigable waters of Patchogue Bay, Bellport, NY within 600 feet of the fireworks barge in approximate position 40°44′39.19″ N, 072°56′27.72″ W (NAD 83). 2 Arts Project Cherry Grove Fireworks Display Location: All navigable waters of Great South Bay off Cherry Grove, Fire Island, NY within 600 feet of the fireworks barge in approximate position 40°39′49.06″ N, 073°05′27.99″ W (NAD 83). 3 The Salute to Veterans Fireworks Display Location: All navigable waters of Reynolds Channel off Hempstead, NY 420 feet of the land launch in approximate position 40°35′36.62″ N, 073°35′20.72″ W (NAD 83). 4 Freeport Chamber of Commerce Location: All navigable waters of Freeport Harbor, Freeport, NY within 300 feet of the fireworks barge located in approximate position 40°37′27.27″ N, 073°34′34.64″ W (NAD 83).

    This rule prevents vessels from entering, transiting, mooring, or anchoring within the areas specifically designated as a safety zone and restricts vessel movement around the locations of the marine events to reduce the safety risks associated with it during the period of enforcement unless authorized by the COTP or designated representative.

    The Coast Guard will notify the public and local mariners of these safety zones 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 Executive orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive order and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order12866. 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 these safety zones will be relatively short in duration; (2) persons or vessels desiring to enter these safety zones may do so with permission from the COTP LIS or a designated representative; (3) these safety zones are 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, 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.

    While some owners or operators of vessels intending to transit these regulated areas may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. 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 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.

    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 Executive Orders 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have 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 four temporary safety zones. 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 will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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 record keeping 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; and Department of Homeland Security Delegation No. 0170.1

    2. Add § 100.T01-0473 to read as follows:
    § 165.T01-0473 Safety Zones; Marine Events held in the Sector Long Island Sound Captain of the Port Zone.

    (a) Location. This section will be enforced at the locations listed for each event in Table 1 to § 165.T01-0473.

    (b) Enforcement period. This rule will be enforced on the dates and times listed for each event in Table 1 to § 165.T01-0473.

    (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 loudhailer. “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. (1) The general regulations contained in § 165.23 apply.

    (2) In accordance with the general regulations in § 165.23, entry into or movement within these zones are prohibited unless authorized by the COTP, Long Island Sound.

    (3) Any vessel given permission to deviate from these regulations must comply with all directions given to them by the COTP Sector Long Island Sound, or the designated on-scene representative.

    (4) Any vessel given permission to enter or operate in these safety zones 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.

    Table 1 to § 165.T01-0473 Fireworks Events 1. Boys & Girls of Bellport-Beach Ball 2016 • Date: June 18, 2016 • Rain Date: June 19, 2016 • Time: 8:30 p.m. to 10:00 p.m. • Location: All navigable waters of Patchogue Bay, Bellport, NY within 600 feet of the fireworks barge in approximate position 40°44′39.19″ N, 072°56′27.72″ W (NAD 83). 2. Arts Project Cherry Grove Fireworks Display • Date: June 18, 2016 • Rain Date: June 19, 2016 • Time: 8:50 p.m. to 10:00 p.m. • Location: All navigable waters of Great South Bay off Cherry Grove, Fire Island, NY within 600 feet of the fireworks barge in approximate position 40°39′49.06″ N, 073°05′27.99″ W (NAD 83). 3. The Salute to Veterans Fireworks Display • Date: June 25, 2016 • Rain Date: June 26, 2016 • Time: 9:00 p.m. to 10:30 p.m. • Location: All navigable waters of Reynolds Channel off Hempstead, NY within 420 feet of the land launch in approximate position 40°35′36.62″ N, 073°35′20.72″ W (NAD 83). 4. Freeport Chamber of Commerce • Date: June 30, 2016 • Rain Date: July 7, 2016 • Time: 7:45 p.m. to 10:00 p.m. • Location: All navigable waters of Freeport Harbor, Freeport, NY within 300 feet of the fireworks barge located in approximate position 40°37′27.27″ N, 073°34′34.64″ W (NAD 83).
    Dated: June 15, 2016. E.J. Cubanski, III, Captain, U.S. Coast Guard, Captain of the Port Sector Long Island Sound.
    [FR Doc. 2016-15601 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0526] Safety Zones; Recurring Events in Captain of the Port Boston Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce safety zones in the Captain of the Port Boston Zone on the specified dates and times listed below. This action is necessary to ensure the protection of the maritime public and event participants from the hazards associated with these annual recurring events. Under the provisions of our regulations, no person or vessel, except for the safety vessels assisting with the event may enter the safety zones unless given permission from the COTP or the designated on-scene representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

    DATES:

    The regulations in 33 CFR 165.118 will be enforced for the safety zones identified in the SUPPLEMENTARY INFORMATION section below for the dates and times specified.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email Mr. Mark Cutter, Coast Guard Sector Boston Waterways Management Division, telephone 617-223-4000, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zones listed in 33 CFR 165.118 on the specified dates and times as indicated in Table 1 below. This regulation was published in the Federal Register on November 8, 2013 (78 FR 67028).

    Table 1 7.1 City of Lynn 4th of July Celebration Fireworks • Event Type: Firework Display.
  • • Sponsor: City of Lynn.
  • • Date: July 3, 2016. • Time: 7:00 p.m. to 10:00 p.m. • Location: All waters of Nahant Bay, within a 350-yard radius of the fireworks barge located at position 42°27.51′ N., 070°55.52′ W. (NAD 83). 7.2 Gloucester July 4th Celebration Fireworks • Event Type: Fireworks Display.
  • • Sponsor: The Gloucester Fund.
  • • Date: July 3, 2016. • Time: 8:00 p.m. to 11:00 p.m. • Location: All waters of Gloucester Harbor, Stage Fort Park, within a 350-yard radius of the fireworks launch site on the beach located at position 42°36.3′ N., 070°40.5′ W. (NAD 83). 7.3 Manchester by the Sea Fireworks • Event Type: Fireworks Display. • Sponsor: Manchester Parks and Recreation Department. • Date: July 4, 2016. • Time: 9:00 p.m. to 10:00 p.m. • Location: All waters of Manchester Bay within a 350-yard radius of the fireworks launch site barge located at position 42°34.14′ N., 070°45.53′ W. (NAD 83). 7.4 Weymouth 4th of July Celebration Fireworks • Event Type: Fireworks Display. • Sponsor: Town of Weymouth 4th of July Committee. • Date: July 3, 2016. • Time: 8:30 p.m. to 11:30 p.m. • Location: All waters of Weymouth Fore River, within a 350-yard radius of the fireworks launch site located at position 42°15.5′ N., 070°56.1′ W. (NAD 83). 7.5 Beverly 4th of July Celebration Fireworks • Event Type: Fireworks Display. • Sponsor: Beverly Harbormaster. • Date: July 4, 2016. • Time: 9:00 p.m. to 11:00 p.m. • Location: All waters of Beverly Harbor within a 350-yard radius of the fireworks launch barge located at position 42°33.46′ N., 070°48.28′ W. (NAD 83). 7.6 4th of July Celebration Fireworks • Event Type: Fireworks Display. • Sponsor: Prides Crossing 4th of July Committee. • Date: July 4, 2016. • Time: 9:00 p.m. to 11:00 p.m. • Location: All waters of Manchester Bay within a 350-yard radius of the fireworks launch site near West Beach located at position 42°33.46′ N., 070°48.28′ W. (NAD 83). 7.7 Boston Pops Fireworks • Event Type: Fireworks Display. • Sponsor: Boston 4 Celebrations. • Date: July 4, 2016. • Time: 8:30 p.m. to 11:00 p.m. • Location: All waters of the Charles River within a 350-yard radius of the fireworks barges located in the vicinity of position 42°21.24′ N., 071°04.60′ W. (NAD 83). 7.8 City of Salem Fireworks • Event Type: Fireworks Display. • Sponsor: City of Salem. • Date: July 4, 2016. • Time: 9:15 p.m. to 10:15 p.m. • Location: All waters of Salem Harbor, within a 350-yard radius of the fireworks launch site located on Derby Wharf at position 42°31.15′ N., 070°53.13′ W. (NAD 83). 7.9 Marblehead 4th of July Fireworks • Event Type: Fireworks Display. • Sponsor: Town of Marblehead. • Date: July 4, 2016. • Time: 9:30 p.m. to 10:00 p.m. • Location: All waters of Marblehead Harbor within a 350-yard radius of the fireworks launch site located at position 42°30.34′ N., 070°50.13′ W. (NAD 83). 7.10 Plymouth 4th of July Fireworks • Event Type: Fireworks Display. • Sponsor: July 4 Plymouth, Inc. • Date: July 4, 2016. • Time: 9:00 p.m. to 10:00 p.m. • Location: All waters of Plymouth Harbor within a 350-yard radius of the fireworks launch site located at position 42°57.3′ N., 070°38.3′ W. (NAD 83). 7.11 Town of Nahant Fireworks • Event Type: Fireworks Display. • Sponsor: Town of Nahant. • Date: July 4, 2016. • Time: 9:00 p.m. to 11:00 p.m. • Location: All waters of Nahant Harbor within a 350-yard radius of the fireworks launch site on Bailey's Hill Park located at position 42°25.1′ N., 070°55.8′ W. (NAD 83). 7.13 Yankee Homecoming Fireworks • Event Type: Fireworks Display. • Sponsor: Yankee Homecoming. • Date: August 6, 2016. • Time: 9:00 p.m. to 10:00 p.m. • Location: All waters of the Merrimack River, within a 350-yard radius of the fireworks launch site located at position 42°48.97′ N., 070°52.68′ W. (NAD 83). 7.14 Hingham 4th of July Fireworks • Event Type: Fireworks Display. • Sponsor: Hingham Lions Club. • Date: July 2, 2016. • Time: 9:00 p.m. to 11:00 p.m. • Location: All waters within a 350-yard radius of the beach on Button Island located at position 42°15.07′ N., 070°53.03′ W. (NAD 83). 7.17 Salisbury 4th of July Fireworks • Event Type: Fireworks Display. • Sponsor: Salisbury Chamber of Commerce. • Date: July 4, 2016. • Time: 9:00 p.m. to 11:00 p.m. • Location: All waters of the Atlantic Ocean near Salisbury Beach within a 350-yard radius of the fireworks launch site located at position 42°50.6′ N., 070°48.4′ W. (NAD 83). 7.19 Swim Across America Boston • Event Type: Swim. • Sponsor: Swim Across America. • Date: July 8, 2016. • Time: 6:00 a.m. to 4:00 p.m. • Location: All waters of Boston Harbor between Rowes Warf and Little Brewster Island within the following points (NAD 83):
  •  42°21.4′ N., 071°03.0′ W.
  •  42°21.5′ N., 071°02.9′ W.
  •  42°19.8′ N., 070°53.6′ W.
  •  42°19.6′ N., 070°53.4′ W.
  • This notice of enforcement is issued under authority of 33 CFR 165.118 and 5 U.S.C. 552 (a). In addition to this notice of enforement in the Federal Register, the Coast Guard will provide notification of these enforcement periods via the Local Notice to Mariners and Broadcast Notice to Mariners.

    Dated: June 23, 2016. C.C. Gelzer, Captain, U.S. Coast Guard, Captain of the Port Boston.
    [FR Doc. 2016-15501 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0456] Safety Zone; City of Charleston Independence Celebration, Charleston, WV AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce safety zone for the City of Charleston Independence Celebration Fireworks on the Kanawha River from mile marker 58.1 to mile marker 59.1, in Charleston, WV on July 3, 2016. This action is needed to provide for the safety of life on navigable waterways during a fireworks display on or over the waterway. Our regulation for Recurring Marine Events in Captain of the Port Ohio Valley Zone identifies the safety zone for this fireworks display. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port or a designated representative.

    DATES:

    The regulations in 33 CFR 165.801, Table 1, Sector Ohio Valley, No. 31 will be enforced from 9:15 p.m. until 10:15 p.m. on July 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email MST3 Robert Miller, Marine Safety Unit Huntington, U.S. Coast Guard; telephone 304-733-0198, [email protected].

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce a safety zone for the annual City of Charleston Independence Celebration Fireworks listed in 33 CFR 165.801, Table 1, Sector Ohio Valley, No. 31, from 9:15 p.m. until 10:15 p.m. on July 3, 2016. This safety zone extends from mile marker 58.1 to mile marker 59.1 on the Kanawha River in Charleston, WV. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display. Entry into this safety zone is prohibited unless authorized by the Captain of the Port Ohio Valley or a designated representative. Persons or vessels desiring to enter into or passage through the zone must request permission from the Captain of the Port Ohio Valley or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port Ohio Valley or designated representative.

    This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and updates via marine information broadcasts on channel 16.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15505 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0340] RIN 1625-AA00 Safety Zones; Safety Zones Within the Captain of the Port New Orleans Zone; New Orleans to Baton Rouge, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing temporary safety zones for multiple locations and dates within the Captain of the Port New Orleans zone. These safety zones are necessary to protect persons and vessels from potential safety hazards associated with fireworks displays on or over federal waterways. Entry into these zones is prohibited unless specifically authorized by the Captain of the Port New Orleans or a designated representative.

    DATES:

    This rule is effective without actual notice from June 30, 2016 through September 23, 2016. For the purposes of enforcement, actual notice will be used from June 22, 2016 through June 30, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0340 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this temporary final rule, call or email Lieutenant Commander (LCDR) Howard Vacco, Sector New Orleans, at (504) 365-2281 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations BNM Broadcast Notice to Mariners CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register MSIB Marine Safety Information Bulletin TFR Temporary Final Rule § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard was notified about several fireworks displays, occurring between June 22 and September 23, 2016 as follows:

    (1) The U.S. Travel Association's “IPW” Conference scheduled for one hour in the evening between 6:00 p.m. and 11:00 p.m. on June 22, 2016. The fireworks barge will be positioned adjacent to Mardi Gras World in New Orleans, LA, at approximate mile marker 96.2 above Head of Passes on the Lower Mississippi River. The Coast Guard was notified about this event on April 1, 2016.

    (2) The St. John the Baptist Parish Independence Day Celebration scheduled for one hour in the evening between 6:00 p.m. and 11:00 p.m. on June 30, 2016. The fireworks barge will be positioned adjacent to the Parish Courthouse in Edgard, LA, at approximate mile marker 138.0 above Head of Passes on the Lower Mississippi River. The Coast Guard was notified about this event on March 15, 2016. This is an annually recurring event that is published in 33 CFR 165.801, Table 5, line no. 2. This year's occurrence is scheduled for a different date and location than currently listed in the CFR.

    (3) The L'Auberge Casino Independence Day Celebration scheduled for one hour in the evening between 6:00 p.m. and 11:00 p.m. on July 4, 2016. The fireworks barge will be positioned adjacent to the L'Auberge Casino in Baton Rouge, LA, at approximate mile marker 216.5 above Head of Passes on the Lower Mississippi River. The Coast Guard was notified about this event on January 27, 2016.

    (4) The City of Mandeville Independence Day Celebration scheduled for one hour in the evening between 6:00 p.m. and 11:00 p.m. on July 4, 2016. The fireworks barge will be positioned adjacent to the Mandeville City Lakefront in Mandeville, LA, at approximate position 30° 21.200 N., 90° 04.500 W. The Coast Guard was notified about this event on March 14, 2016.

    (5) The American Pyrotechnic Association Convention scheduled for one hour in the evening between 6:00 p.m. and 11:00 p.m. on September 23, 2016. The fireworks barge will be positioned adjacent to Dumaine Street in New Orleans, LA, at approximate mile marker 94.5 above Head of Passes on the Lower Mississippi River. The Coast Guard was notified about this event on February 24, 2016. This event was incorrectly identified as “The American Psychological Association Convention” in the NPRM.

    Due to the risks associated with aerial barge-based fireworks displays taking place on and over these sections of navigable waterways, the safety zones are needed to protect persons and property. The Coast Guard will notify the public and maritime community of the safety zones and their respective enforcement periods via broadcast notices to mariners (BNM) and Marine Safety Information Bulletins (MSIB).

    In response, on June 3, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zones; Safety Zones Within the Captain of the Port New Orleans Zone; New Orleans to Baton Rouge, LA (81 FR 35671). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to these fireworks displays. During the comment period that ended June 20, 2016, we received no comments.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Due to the risks associated with aerial barge-based fireworks displays taking place on and over the waterway, safety zones are needed. The Coast Guard finds that good cause exists for not waiting 30 days after publication in the Federal Register. Providing a full 30-days notice would be impracticable because immediate action is needed beginning June 22, 2016 to protect persons and property from the hazards associated with an aerial fireworks display taking place on and over the waterway.

    The Coast Guard will notify the public and maritime community that the safety zone will be in effect and of its enforcement periods via broadcast notices to mariners (BNM).

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port New Orleans (COTP) has determined that potential hazards associated with the fireworks to be used in upcoming displays will be a safety concern for anyone within one-quarter mile of the fireworks barge for the displays on the Lower Mississippi River and within 600 feet of the fireworks barge for the display in Lake Pontchartrain. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events.

    IV. Discussion of Comments, Changes, and the Rule

    Through this temporary final rule, the Coast Guard is establishing multiple temporary safety zones within the Captain of the Port New Orleans (COTP) Zone on several different dates and in several different locations. While we received no comments to the proposed rule, due to timing of the NPRM publication and cancellation of an event, 2 safety zones are removed and changes to the proposed rule are necessary. We removed the regulatory text for the first safety zone, under paragraph (a)(1) as proposed, which was for a fireworks display on June 15, 2016, from MM 94.0 to MM 95.0 above head of passes on the Lower Mississippi River. We removed the regulatory text for that safety zone because we established it through its own temporary rulemaking before the comment period for the NPRM ended. This allowed the Coast Guard to ensure that the necessary safety measures were in place for the June 15, 2016 display. A copy of that rule is available in the docket as indicated under ADDRESSES. We also removed the regulatory text for the second safety zone, under paragraph (a)(2) because that event was cancelled and the safety zone no longer needed. Accordingly, paragraphs (a)(3) through (7) of the proposed rule are renumbered in this temporary final rule as paragraphs (a)(1) through (5), with the same regulatory text as proposed in the NPRM.

    These remaining safety zones will be enforced on the respective dates listed above and in the regulatory text as provided at the end of this document. Each safety zone will occur during the evening on the dates specified, and will be limited to a duration of one hour, between the hours of 6:00 p.m. and 11:00 p.m. Entry into these safety zones is prohibited unless permission has been granted by the COTP New Orleans, or a designated representative.

    The COTP New Orleans will inform the public through BNMs of the enforcement period for each safety zone as well as any changes in the planned schedule. Mariners and other members of the public may also contact Coast Guard Sector New Orleans Command Center to inquire about the status of the safety zone by calling (504) 365-2200.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    Four of these safety zones are no greater than 1 river mile in length and would restrict navigation on the Lower Mississippi River for no longer than one hour. The remaining safety zone is limited to a circular area 1200 feet in diameter located along the North Shore of Lake Pontchartrain, in an area with ample room for other traffic to navigate around the safety zone, and would be in effect for no longer than one hour. Due to the limited scope and short duration of each safety zone, the impacts on routine navigation are expected to be minimal. Additionally, the Coast Guard will issue maritime notices widely available to waterway users and deviation from the safety zones may be requested and will be considered on a case-by-case basis.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. 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.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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.

    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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule establishes five temporary safety zones within the Captain of the Port New Orleans 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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

    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.T08-0340 to read as follows:
    § 165.T08-0340 Safety Zones; Captain of the Port New Orleans Zone; New Orleans to Baton Rouge, LA.

    (a) Safety zones. The following areas are safety zones:

    (1) U.S. Travel Association fireworks display, New Orleans, LA—(i) Location. All waters of the Lower Mississippi River from mile marker 95.7 to mile marker 96.7 Above Head of Passes.

    (ii) Effective date and time. June 22, 2016, for one hour in the evening between the hours of 6:00 p.m. and 11:00 p.m.

    (2) St. John the Baptist Independence Day Celebration fireworks display, Edgard, LA—(i) Location. All waters of the Lower Mississippi River from mile marker 137.5 to mile marker 138.5 Above Head of Passes.

    (ii) Effective date and time. June 30, 2016, for one hour in the evening between the hours of 6:00 p.m. and 11:00 p.m.

    (3) L'Auberge Casino Independence Day Celebration fireworks display, Baton Rouge, LA—(i) Location. All waters of the Lower Mississippi River from mile marker 216.0 to mile 217.0 Above Head of Passes.

    (ii) Effective date and time. July 4, 2016, for one hour in the evening between the hours of 6:00 p.m. and 11:00 p.m.

    (4) City of Mandeville Independence Day Celebration fireworks display, Mandeville, LA—(i) Location. All waters of Lake Pontchartrain extending 600 feet in any direction from 30° 21.200 N., 090° 04.500 W.

    (ii) Effective date and time. July 4, 2016, for one hour in the evening between the hours of 6:00 p.m. and 11:00 p.m.

    (5) American Pyrotechnic Association Convention fireworks display, New Orleans, LA—(i) Location. All waters of the Lower Mississippi River from mile marker 94.0 to mile marker 95.0 Above Head of Passes.

    (ii) Effective date and time. September 23, 2016, for one hour in the evening between the hours of 6:00 p.m. and 11:00 p.m.

    (b) Regulations. (1) In accordance with the general regulations in § 165.23, entry into these zones is prohibited unless specifically authorized by the Captain of the Port (COTP) New Orleans or designated personnel. Designated personnel include Commissioned, Warrant and Petty Officers of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. For each event, the COTP New Orleans Designated Representative will be announced via Marine Safety Information Bulletin and Notice to Mariners.

    (2) Vessels requiring deviation from this rule must request permission from the COTP New Orleans or a COTP New Orleans designated representative. They may be contacted via the U.S. Coast Guard Sector New Orleans Command Center, via VHF-FM Channel 16 or by phone at (504) 365-2200.

    (3) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted areas must transit at the slowest safe speed and comply with all lawful directions issued by the COTP New Orleans or the designated representative.

    (c) Information broadcasts. The COTP New Orleans or designated representative will inform the public through broadcast notices to mariners of the enforcement periods for the safety zones as well as any changes in the planned schedules.

    Dated: June 22, 2016. P.C. Schifflin, Captain, U.S. Coast Guard, Captain of the Port New Orleans.
    [FR Doc. 2016-15440 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0481] RIN 1625-AA00 Safety Zone; City of Bayfield Fourth of July Fireworks, Lake Superior, Bayfield, WI AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a safety zone in Lake Superior near Bayfield, WI. This safety zone is intended to restrict vessels from specified waters in Lake Superior during the Bayfield Fourth of July Fireworks Display. This safety zone is necessary to protect spectators from the hazards associated with the fireworks display.

    DATES:

    This rule is effective from 9 p.m. through 11 p.m. July 4, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0481 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Junior Grade John Mack, Waterways management, MSU Duluth, Coast Guard; telephone 218-725-3818, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. Because the event is scheduled for July 4, 2016, there is insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be both impracticable and contrary to public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the event.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest as it would inhibit the Coast Guard's ability to protect spectator and vessels from the hazards associated with the event.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that potential hazards associated with fireworks displays starting at 9:30 p.m. on July 4, 2016 will be a safety concern for anyone within a 420-foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 9 p.m. through 11 p.m. July 4, 2016. The safety zone will cover all navigable waters within an area bounded by a circle with a 420-foot radius of the fireworks display launching site located in Hancock, MI at coordinates 46°48′40″ N., 090°48′32″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive order related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Keweenaw Waterway in Hancock, MI for 1 hour and during a time of year when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves a safety zone lasting no more than 2 hours that will prohibit entry within a 420-foot radius from where a fireworks display will be conducted. 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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 record keeping 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.T09-0481 to read as follows:
    § 165.T09-0481 Safety Zone; City of Bayfield Fourth of July Fireworks, Lake Superior, Bayfield, WI.

    (a) Location. All waters of Lake Superior within an area bounded by a circle with a 420-foot radius at position 46°48′40″ N., 090°48′32″ W.

    (b) Effective period. This safety zone is effective from 9 p.m. through 11 p.m. on July 4, 2016.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his designated on-scene representative.

    (2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Duluth or his designated on-scene representative.

    (3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

    (4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Duluth or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Duluth or his on-scene representative.

    Dated: June 24, 2016. A.H. Moore, Jr., Commander, U.S. Coast Guard, Captain of the Port Duluth.
    [FR Doc. 2016-15438 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0478] Safety Zones; Duluth Fourth Fest, Duluth, MN AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the Safety Zone for the Duluth Fourth Fest fireworks display in Duluth, MN July 4, 2016. This action is necessary to protect spectators during the Duluth Fourth Fest Fireworks show. During the enforcement period, entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative.

    DATES:

    The regulations in 33 CFR 165.943(b) will be enforced from 9:30 p.m. through 11:30 p.m. on July 4, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email Lieutenant Junior Grade John Mack, Waterways Management Division, Coast Guard; telephone (218) 725-3818, email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce a safety zone for the annual Duluth Fourth Fest fireworks display in 33 CFR 165.943(a)(3) from 9:30 p.m. until 11:30 p.m. July 4, 2016. This safety zone will include all U.S. navigable waters of the Duluth Harbor Basin Northern Section within a 840 foot radius of position 46°46′14″ N., 092°06′16″ W. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16.

    This notice of enforcement is issued under authority of 33 CFR 165.943 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 advance notification of the enforcement of this safety zone via Broadcast Notice to Mariners.

    Dated: June 24, 2016. A.H. Moore, Jr., Commander, U.S. Coast Guard, Captain of the Port, Duluth.
    [FR Doc. 2016-15503 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0289] RIN 1625-AA00 Safety Zone, Pamlico Sound; Ocracoke, NC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone on the navigable waters of the Pamlico Sound in Ocracoke, North Carolina within a 500 yard radius of the National Park Service (NPS) Boat Launch. This action is necessary to provide the safety of mariners on navigable waters to protect the life and property of the maritime public and spectators from the hazards posed by Hyde County 4th of July aerial fireworks display. Entry into or movement within the safety zone during the enforcement period is prohibited without approval of the Captain of the Port.

    DATES:

    This rule is effective on July 3, 2016, from 9 p.m. through 9:45 p.m.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0289 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email LCDR Derek J. Burrill, Waterways Management Division Chief, Sector North Carolina, Coast Guard; telephone (910) 772-2230, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard was awaiting further details on the location of the launch site and also gathering other safety details of the Hyde County July 4th Fireworks display. The Captain of the Port North Carolina is establishing a temporary safety zone on specified waters of Pamlico Sound within a 500 yard radius of the NPS Boat Launch in approximate position 35°07′07″ N., longitude 075°59′16″ W. (NAD 1983) in Ocracoke, NC. This safety zone will be effective and enforced from 9 p.m. to 9:45 p.m. on July 3, 2016. It is impracticable to publish a Notice to Public Rulemaking (NPRM) because we must establish this safety zone by July 3, 2016, and sufficient notice was not given to publish a NPRM due to the Coast Guard awaiting further details on the location of the launch site and continuing to gather other on site safety details associated with the aerial fireworks display.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to public interest because the potential hazards creating the need for this rule will occur during the aerial fireworks display scheduled for July 3, 2016.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port North Carolina (COTP) has determined that potential hazards associated with the aerial fireworks on July 3, 2016, will be a safety concern for anyone within a 500 yard radius of the launch site at approximate position 35°07′07″ N., longitude 075°59′16″ W. (NAD 1983). This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 9 p.m. to 9:45 p.m. on July 3, 2016. The safety zone will cover all navigable waters within 500 yards of the NPS Boat Launch at approximate position 35°07′07″ N., longitude 075°59′16″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the aerial fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    The primary impact of these regulations will be on limiting all vessels wishing to transit the affected waterways during enforcement of the safety zone on the waters of Pamlico Sound within a 500 yard radius of the NPS Boat Launch at approximate position 35°07′07″ N., longitude 075°59′16″ W. on July 3, 2016, from 9 p.m. through 9:45 p.m., unless otherwise cancelled by the COTP. Although these regulations prevent traffic from transiting a small portion of Pamlico Sound during this event, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves the establishment of a safety zone to limit all vessels within a 500 yard radius of the NPS Boat Launch at approximate position 35°07′07″ N., longitude 075°59′16″ W. on July 3, 2016, from 9 p.m. through 9:45 p.m., to protect life and property of mariners from the dangers associated with aerial fireworks. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. 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.T05-0289 to read as follows:
    § 165.T05-0289 Safety Zone, Pamlico Sound; Ocracoke, North Carolina.

    (a) Definitions. For the purposes of this section:

    Captain of the Port means the Commander, Sector North Carolina.

    Representative means any Coast Guard commissioned, warrant or petty officer who has been authorized to act on the behalf of the Captain of the Port.

    (b) Location. The following area is a safety zone: specified waters of the Captain of the Port Sector North Carolina zone, as defined in 33 CFR 3.25-10, all waters of Pamlico Sound in Ocracoke, NC within a 500-foot radius of the NPS Boat Launch in Ocracoke, NC at approximate position 35°07′07″ N., longitude 075°59′16″ W.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless authorized by the Captain of the Port, North Carolina or her designated representatives.

    (2) The operator of any vessel granted permission to enter this safety zone must proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.

    (3) The Captain of the Port, North Carolina can be reached through the Sector North Carolina Command Duty Officer at Sector North Carolina in Wilmington, North Carolina at telephone number (910) 343-3882.

    (4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).

    (d) Enforcement period. This section will be enforced on July 3, 2016, from 9 p.m. through 9:45 p.m., unless otherwise cancelled by the COTP.

    Dated: June 9, 2016. P.J. Hill, Captain, U.S. Coast Guard, Captain of the Port North Carolina.
    [FR Doc. 2016-15600 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0614] RIN 1625-AA00 Safety Zone; Fireworks Display; Ohio River Mile 469.6 to 470.2, Newport, KY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Ohio River, surface to bottom, from mile 469.6 to 470.2. This action is necessary to provide for the safety of life on these navigable waters near Newport, KY, during the City of Newport Fireworks Display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Ohio Valley (COTP) or a designated representative.

    DATES:

    This rule is effective from 10:00 p.m. to 11:00 p.m. on July 3, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0614 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this rulemaking, call or email Petty Officer Caloeb Gandy, Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5334, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor submitted the event application on June 22, 2016. This late submission did not give the Coast Guard enough time to complete the full NPRM process. This action is necessary to ensure the safety of the life and property during the fireworks display on or over this navigable waterway. It is impracticable to publish an NPRM because we must establish this safety zone by July 3, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during the event and immediate action is necessary to prevent possible loss of life and property.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with the fireworks display on July 3, 2016 will be a safety concern for all waters of the Ohio River, surface to bottom, from mile 469.6 to 470.2. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the City of Newport Fireworks Display.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone on July 3, 2016. The temporary safety zone will cover all waters of the Ohio River, surface to bottom, from mile 469.6 to 470.2. Transit into and through this area is prohibited from 10:00 p.m. to 11:00 p.m. on July 3, 2016. The duration of the temporary safety zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks displays. No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative. Deviation requests will be considered and reviewed on a case-by-case basis. The COTP Ohio Valley may be contacted by telephone at 1-800-253-7475 or can be reached by VHF-FM channel 16. Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners, and Broadcast notice to Mariners.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-year of the temporary safety zone. The temporary safety zone will only be in effect for 60 minutes, during late evening hours and covers an area of the waterway stretching less than one mile. The Coast Guard expects minimum adverse impact to mariners from the temporary safety zone activation as the event has been advertised to the public. Also, mariners may request authorization from the COTP Ohio Valley or a designated representative to transit the temporary safety zone.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 $165,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves a temporary safety zone lasting less than two hours that will prohibit entry on all waters of the Ohio River, surface to bottom, extending 500 feet from the Kentucky shoreline, from mile 469.6 to 470.2. 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 are available in the docket where indicated under ADDRESSES.

    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.T08-0614 to read as follows:
    § 165.T08-0614 Safety Zone; Ohio River Between Mile 469.6 and 470.2, Newport, KY.

    (a) Location. The following area is a temporary safety zone for all waters, surface to bottom, of the Ohio River between mile 469.6 and mile 470.2, Newport, KY.

    (b) Enforcement period. This temporary safety zone will be enforced from 10:00 p.m. to 11:00 p.m. on July 3, 2016. Actual notice will be used for enforcement purposes.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Ohio Valley (COTP) or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (2) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.

    (d) Informational broadcasts. The COTP Ohio Valley or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the temporary safety zone as well as any changes in the planned schedule.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15507 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0596] RIN 1625-AA00 Safety Zone; Fireworks Display; Ohio River Mile 408 to 409, Maysville, KY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Ohio River, surface to bottom, extending 500 feet from the Kentucky shoreline, from mile 408 to 409. This action is necessary to provide for the safety of life on these navigable waters near Maysville, KY, during the City of Maysville Fireworks Display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Ohio Valley (COTP) or a designated representative.

    DATES:

    This rule is effective from 10:00 p.m. to 11:00 p.m. on July 4, 2016

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0596 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this rulemaking, call or email Petty Officer Caloeb Gandy, Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5334, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor submitted the event application on May 11, 2016. This late submission did not give the Coast Guard enough time to complete the full NPRM process. This action is necessary to ensure the safety of the life and property during the fireworks display on or over this navigable waterway. It is impracticable to publish an NPRM because we must establish this safety zone by July 4, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during the event and immediate action is necessary to prevent possible loss of life and property.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with the fireworks display on July 4, 2016 will be a safety concern for all waters of the Ohio River, surface to bottom, extending 500 feet from the Kentucky shoreline, from mile 408 to 409. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the City of Maysville Fireworks Display.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone on July 4, 2016. The temporary safety zone will cover all waters of the Ohio River, surface to bottom, extending 500 feet from the Kentucky shoreline, from mile 408 to 409. Transit into and through this area is prohibited from 10:00 p.m. to 11:00 p.m. on July 4, 2016. The duration of the temporary safety zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks displays. No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative. Deviation requests will be considered and reviewed on a case-by-case basis. The COTP Ohio Valley may be contacted by telephone at 1-800-253-7475 or can be reached by VHF-FM channel 16. Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners, and Broadcast notice to Mariners.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-year of the temporary safety zone. The temporary safety zone will only be in effect for 60 minutes and covers an area of the waterway stretching less than one mile and extending 500 feet from the shoreline. The Coast Guard expects minimum adverse impact to mariners from the temporary safety zone activation as the event has been advertised to the public. Also, mariners may request authorization from the COTP Ohio Valley or a designated representative to transit the temporary safety zone.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 $165,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves a temporary safety zone lasting less than two hours that will prohibit entry on all waters of the Ohio River, surface to bottom, extending 500 feet from the Kentucky shoreline, from mile 408 to 409. 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 are available in the docket where indicated under ADDRESSES.

    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.T08-0596 to read as follows:
    § 165.T08-0596 Safety Zone; Ohio River Between Mile 408 and 409, Maysville, KY.

    (a) Location. The following area is a temporary safety zone for all waters, surface to bottom, of the Ohio River between mile 408 and mile 409, Maysville, KY, extending 500 feet from the Kentucky shoreline.

    (b) Enforcement period. This temporary safety zone will be enforced from 10:00 p.m. to 11:00 p.m. on July 4, 2016.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Ohio Valley (COTP) or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (2) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

    (d) Informational broadcasts. The COTP Ohio Valley or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the temporary safety zone as well as any changes in the planned schedule.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15504 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0479] Safety Zones; Superior Man Triathlon, Duluth, MN AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the Safety Zone for the Superior Man Triathlon in Duluth, MN August 28, 2016. This action is necessary to protect the participants during the event. During the enforcement period, entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative.

    DATES:

    The regulations in 33 CFR 165.943(b) will be enforced from 5:30 a.m. through 9:30 a.m. on August 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email Lieutenant Junior Grade John Mack, Waterways Management Division, Coast Guard; telephone (218) 725-3818, email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce a safety zone for the annual Superior Man Triathlon in Duluth, MN in 33 CFR 165.943(a)(8) from 5:30 a.m. until 9:30 a.m. August 28, 2016. This safety zone will include all U.S. navigable waters of the Duluth Harbor Basin, Northern Section within an imaginary line beginning at point 46°46′36.12″ N. 092°06′06.99″ W., running southeast to 46°46′32.75″ N. 092°06′01.74″ W., running northeast to 46°46′45.92″ N. 092°05′45.18″ W., running northwest to 46°46′49.47″ N. 092°05′49.35″ W. and finally running southwest back to the starting point. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16.

    This notice of enforcement is issued under authority of 33 CFR 165.943 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 advance notification of the enforcement of this safety zone via Broadcast Notice to Mariners.

    Dated: June 24, 2016. A.H. Moore, Jr., Commander, U.S. Coast Guard, Captain of the Port, Duluth.
    [FR Doc. 2016-15502 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0279] RIN 1625-AA00 Safety Zone; Ohio River mile 307.8-308.8 Huntington, WV AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Ohio River from mile 307.8 to mile 308.8, Huntington, WV. This temporary safety zone is necessary to protect persons and property from potential damage and safety hazards during a fireworks display on or over the navigable waterway. During the period of enforcement, entry into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or other designated representative.

    DATES:

    This rule is effective from 9:30 to 11:00 p.m. on July 1, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0279 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Third Class Robert Miller; telephone (304) 733-0198, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 finds good cause 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 a notice of proposed rulemaking (NPRM) with respect to this rule because firework displays on or over the navigable waterway pose safety concerns for waterway users. On March 7, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” (81 FR 11706). In the NPRM, the Coast Guard proposed to amend and update its list of recurring safety zone regulations that take place in the Coast Guard Sector Ohio Valley area of responsibility (AOR). The public comment period ended on June 6, 2016. The Coast Guard did not receive comments on the NPRM. The Coast Guard issued a final rule on June 14, 2016, finalizing the events proposed in the NPRM, and the rule became effective on June 14, 2016 (see 81 FR 38595).

    Before the comment period closed, the Coast Guard received new information regarding the Kindred Communications/Dawg Dazzle event, listed in Table 1 of 33 CFR 165.801, Line 56. For 2016, the event sponsor requested that the event be held on July 1 instead of the July 4, which was the date proposed in the NPRM. Due to the date of the event, it is impracticable to publish an NPRM for this date change because we must establish this safety zone by July 1, 2016. If the event sponsor decides to continue to hold the event annually on July 1, the Coast Guard will publish an NPRM in the Federal Register to permanently change the event date.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making the rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of the rule is contrary to the public interest as it would delay the effectiveness of the temporary safety zone needed to respond to potential related safety hazards until after the planned fireworks display.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with fireworks displays taking place on or over this section of navigable waterway will be a safety concern for anyone within the area designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 9:30 until 11:00 p.m. on July 1, 2016 for all waters of the Ohio River from mile 307.8 to mile 308.8, for the Dawg Dazzle Fireworks Display in Huntington, WV. This safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or a designated representative. Based on the location, limited safety zone size, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast Notices to Mariners and Local Notices to Mariners. Deviation from this rule may be requested from the COTP or a designated representative and will be considered on a case-by-case basis.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that the actions are one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than two hours that will limit access to a specific area on the Ohio River. This safety zone 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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.T08-0279 to read as follows:
    § 165.T08-0279 Safety Zone; Ohio River, Mile 307.8 to Mile 308.8, Huntington, WV.

    (a) Location. The following area is a safety zone: All waters of the Ohio River from mile 307.8 to mile 308.8.

    (b) Enforcement period. This safety zone will be enforced from 9:30 p.m. until 11:00 p.m. on July 1, 2016.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Ohio Valley (COTP) or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (2) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.

    (d) Information broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate of the enforcement period for each safety zone as well as any changes in the planned and published dates and times of enforcement.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15570 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0608] RIN 1625-AA11 Regulated Navigation Area; Fourth of July, Biscayne Bay, Miami, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is temporarily establishing a regulated navigation area on Biscayne Bay in Miami, Florida for the Fourth of July, 2016. This regulation is necessary to protect the public during upcoming Fourth of July events, a period during which a significant concentration of persons and vessels historically operate on the waters of Biscayne Bay. To ensure the public's safety, all vessels within the regulated navigation area are required to transit the regulated navigation area at no more than 15 knots; are subject to control by the Coast Guard officers and petty officers; and are required to follow the instructions of all law enforcement vessels in the area.

    DATES:

    This rule is effective on July 4th, 2016, from 7 p.m. until 11:59 p.m.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0608 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Benjamin Colbert, Sector Miami Waterways Management Branch, U.S. Coast Guard; telephone 305-535-4317, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background Information and Regulatory History

    Recreational boating traffic on the waters of Biscayne Bay increases significantly during Fourth of July activities. In recent years, recreational vessel speed, especially in crossing navigational channels, contributed to incidents that resulted in severe injury and death. This regulation seeks to increase public safety on the waters of Biscayne Bay during the 4th of July by requiring vessels to travel at a maximum speed of 15 knots. It also subjects recreational vessels to the control by Coast Guard officers and petty officers as well as local law enforcement authorities.

    The Coast Guard is issuing this temporary 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 a notice of proposed rulemaking (NPRM) with respect to this rule because publication of an NPRM would be impracticable. During meetings with local law enforcement, only weeks prior to the holiday, it was decided that a regulated navigation area be implemented for the holiday. Local law enforcement expressed opinion that previous implementation of this rule resulted a substantially safer waterway. This late decision makes proposing the rule for comment impracticable.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the reasons discussed above.

    III. Legal Authority and Need for Rule

    The legal basis for this proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1. The District Seven Commander has determined that potential hazards associated with Fourth of July events pose a safety concern for anyone on the waters of Biscayne Bay. The purpose of this rule is to ensure safety of vessels and the navigable waters in Biscayne Bay before, during, and after the July 4th events.

    IV. Discussion of Comments, Changes, and the Rule

    This rule establishes a regulated navigational area from 7 p.m. to 11:59 on July 4th, 2016. This regulated navigation area will encompass certain waters of the Biscayne Bay between Julia Tuttle Causeway Bridge and Cutler Bay, Florida. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after Fourth of July events.

    All vessels within the proposed regulated navigation area are: (1) Required to transit the regulated navigation area at no more than 15 knots; (2) subject to control by Coast Guard officers and petty officers; and (3) required to follow the instructions of all law enforcement vessels in the area.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This 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.

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Although the regulated navigational area covers most of Biscayne Bay, it is only enforced for five hours on a holiday evening. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to enter the regulated navigational area.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rulemaking. 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.

    While some owners or operators of vessels intending to transit the regulated navigation area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 it 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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.T07-0608 to read as follows:
    § 165.T07-0608 Regulated Navigation Area; Fourth of July, Biscayne Bay, Miami, FL.

    (a) Regulated area. The regulated navigation area encompasses all waters of Biscayne Bay between Tuttle Causeway Bridge and Black Point contained within an imaginary line connecting the following points: Beginning at Point 1 in position 25°48′38″ N, 80°10′40″ W; thence east to Point 2 in position 25°48′38″ N, 80°10′30″ W; thence southwest to Point 3 in position 25°46′41″ N, 80°10′54″ W; thence southeast to Point 4 in position 25°46′17″ N, 80°10′43″ W; thence southwest to Point 5 in position 25°45′05″ N, 80°10′50″ W; thence southeast to Point 6 in position 25°44′47″ N, 80°10′44″ W; thence southeast to Point 7 in position 25°43′29″ N, 80°09′37″ W; thence southwest to Point 8 in position 25°42′39″ N, 80°10′35″ W; thence southwest to Point 9 in position 25°31′11″ N, 80°13′06″ W; thence northwest to Point 10 in position 25°31′31″ N, 80°17′48″ W; thence northeast to Point 11 in position 25°43′25″ N, 80°13′17″ W; thence northeast to Point 12 in position 25°43′59″ N, 80°12′04″ W; thence northeast to Point 13 in position 25°44′46″ N, 80°11′23″ W; thence northeast to Point 14 in position 25°46′10″ N, 80°10′59″ W; thence northwest to Point 15 in position 25°46′20″ N, 80°11′04″ W; thence northeast to Point 16 in position 25°46′44″ N, 80°10′59″ W; thence northwest to Point 17 in position 25°47′15″ N, 80°11′06″ W; thence northeast to Point 18 in position 25°47′24″ N, 80°11′00″ W; thence north to Point 19 in position 25°47′36″ N, 80°11′00″ W; thence back to origin. All coordinates are North American Datum 1983.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

    (c) Regulations. All vessels within the regulated area are required to transit at no more than 15 knots; are subject to control by the Coast Guard officers and petty officers; and must follow the instructions of designated representatives.

    (d) Enforcement period. This section will be in enforced with actual notice from 7 p.m. to 11:59 on July 4, 2016.

    Dated: June 24, 2016. A.J. Gould, Captain, U.S. Coast Guard, Acting Commander, Seventh Coast Guard District.
    [FR Doc. 2016-15508 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0616] RIN 1625-AA00 Safety Zone; Ohio River Mile 317-318, Ashland, KY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Ohio River from mile 317 to mile 318, Ashland, KY. This temporary safety zone is necessary to protect persons and property from potential damage and safety hazards during a fireworks display on or over a navigable waterway. During the period of enforcement entry into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or a designated representative.

    DATES:

    This rule is effective from 9:35 to 10:45 p.m. on July 2, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0616 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Third Class Robert Miller; telephone (304) 733-0198, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 finds good cause 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 a notice of proposed rulemaking (NPRM) with respect to this rule because fireworks displays on or over the navigable waterway poses safety concerns for waterway users. On March 7, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” (81 FR 11706). In the NPRM, the Coast Guard proposed to amend and update its list of recurring safety zone regulations that take place in the Coast Guard Sector Ohio Valley area of responsibility (AOR). The public comment period ended on June 6, 2016. The Coast Guard did not receive comments on the NPRM. The Coast Guard issued a final rule on June 14, 2016, finalizing the events proposed in the NPRM, and the rule became effective on June 14, 2016 (see 81 FR 38595).

    Before the comment period closed, the Coast Guard received new information regarding the Party in the Park event, listed in Table 1, Line 13 of 33 CFR 165.801. For 2016, the event sponsor requested that the event be held on July 2 instead of July 4, which was the date proposed in the NPRM. Due to the date of the event, it is impracticable to publish an NPRM for this date change because we must establish this safety zone by July 2, 2016. If the event sponsor decides to continue to hold the event annually on July 2, the Coast Guard will publish an NPRM in the Federal Register to permanently change the event date.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making the rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of the rule is contrary to the public interest as it would delay the effectiveness of the temporary safety zone needed to respond to potential related safety hazards until after the planned fireworks display.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with fireworks displays taking place on or over this section of navigable waterway will be a safety concern for anyone within the area designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 9:35 until 10:45 p.m. on July 2, 2016 for all waters of the Ohio River from mile 317 to mile 318, for the Party in the Park Fireworks Display in Ashland, KY. This safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or a designated representative. Based on the location, limited safety zone size, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast Notices to Mariners and Local Notices to Mariners. Deviation from this rule may be requested from the COTP or a designated representative and will be considered on a case-by-case basis.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that the actions are one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than two hours that will limit access to a specific area on the Ohio River. This safety zone 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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.T08-0616 to read as follows:
    § 165.T08-0616 Safety Zone; Ohio River, Mile 317 to Mile 318, Ashland, KY.

    (a) Location. The following area is a safety zone: All waters of the Ohio River from mile 317 to mile 318.

    (b) Enforcement period. This safety zone will be enforced from 9:35 until 10:45 p.m. on July 2, 2016. Actual notice will be used for enforcement purposes.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Ohio Valley (COTP) or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (2) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.

    (d) Information broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate of the enforcement period for each safety zone as well as any changes in the planned and published dates and times of enforcement.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15572 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0502] RIN 1625-AA00 Safety Zone; Ohio River Mile 607.5 to 608.6, Indiana AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Ohio River from mile 607.5 to mile 608.6. This temporary safety zone is necessary to protect persons and property from potential damage and safety hazards during a fireworks display on or over the navigable waterway. During the period of enforcement, entry into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or a designated representative.

    DATES:

    This rule is effective from 10:30 p.m. until 11:00 p.m. on July 3, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0502 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer James Robinson, Sector Ohio Valley, U.S. Coast Guard; telephone (502) 779-5347, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 finds good cause 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 a notice of proposed rulemaking (NPRM) with respect to this rule because fireworks displays on or over the navigable waterway poses safety concerns for waterway users. On March 7, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” (81 FR 11706). In the NPRM, the Coast Guard proposed to amend and update its list of recurring safety zone regulations that take place in the Coast Guard Sector Ohio Valley area of responsibility (AOR). The public comment period ended on June 6, 2016. The Coast Guard did not receive comments on the NPRM. The Coast Guard issued a final rule on June 14, 2016, finalizing the events proposed in the NPRM, and the rule became effective on June 14, 2016 (see 81 FR 38595).

    Before the comment period closed, the Coast Guard received new information regarding the Riverfront Independence Festival Fireworks Display, listed in Table 1 of 33 CFR 165.801, Line 21. For 2016, the event sponsor requested that the event be held at Ohio River mile 607.5 to mile 608.6 instead of Ohio River, mile 602.0 to mile 603.5, which is the location listed in the NPRM and current CFR. It is impracticable to publish a NPRM for this location change because we must establish this safety zone by July 3, 2016. If the event sponsor decides to continue to hold the event annually at Ohio River mile 607.5 to mile 608.6, the Coast Guard will publish an NPRM in the Federal Register to permanently change the event location.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making the rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of the rule is contrary to the public interest as it would delay the effectiveness of the temporary safety zone needed to respond to potential related safety hazards until after the planned fireworks display.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with fireworks displays taking place on or over this section of navigable waterway will be a safety concern for anyone within the area designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 10:30 p.m. until 11:00 p.m. on July 03, 2016 for all waters of the Ohio River from mile 607.5 to mile 608.6, for the Riverfront Independence Festival Fireworks Display. This safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location, limited safety zone size, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast Notices to Mariners and Local Notices to Mariners. Deviation from this rule may be requested from the COTP or other designated representative and will be considered on a case-by-case basis.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

    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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 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 Executive Order 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 it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 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 M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that the actions are one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than two hours that will limit access to a specific area on the Ohio River. This safety zone 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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.T08-0502 to read as follows:
    § 165.T08-0502 Safety Zone; Ohio River, Mile 607.5 to Mile 608.6.

    (a) Location. The following area is a safety zone: All waters of the Ohio River from mile 607.5 to mile 608.6.

    (b) Enforcement period. This safety zone will be enforced from 10:30 p.m. until 11:00 p.m. on July 3, 2016.

    (c) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP) Ohio Valley in the enforcement of the safety zone.

    (d) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

    (2) To seek permission to enter, contact the COTP or designated representative via VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (3) All persons and vessels shall comply with the instruction of the COTP and designated on-scene personnel.

    (e) Information broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate of the enforcement period for each safety zone as well as any changes in the planned and published dates and times of enforcement.

    R.V. Timme, Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
    [FR Doc. 2016-15571 Filed 6-29-16; 8:45 am] BILLING CODE 9110-04-P
    POSTAL SERVICE 39 CFR Part 233 Inspection Service Authority; Civil Monetary Penalty Inflation Adjustment AGENCY:

    Postal Service.

    ACTION:

    Interim final rule.

    SUMMARY:

    This rule updates postal regulations to implement inflation adjustments to civil monetary penalties that may be imposed under consumer protection and mailability provisions enforced by the Postal Service pursuant to the Deceptive Mail Prevention and Enforcement Act and the Postal Accountability and Enhancement Act. These adjustments are required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This notice also includes the statutory civil monetary penalties subject to the 2015 Act.

    DATES:

    Effective date: August 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steven Sultan, (202) 268-7385.

    SUPPLEMENTARY INFORMATION:

    The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 584, amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), Public Law 101-410, 104 Stat. 890 (28 U.S.C. 2461 note), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. Section 3 of the 1990 Act specifically includes the Postal Service in the definition of “agency” subject to its provisions.

    The 2015 Act requires the Postal Service to make two types of adjustments to civil penalties that meet the definition of “civil monetary penalty” under the 1990 Act. The Office of Management and Budget has furnished detailed instructions regarding these adjustments in memorandum M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2016 (February 24, 2016), www.whitehouse.gov/omb/memoranda/2016/m-16-06.

    First, the Postal Service must make an initial “catch-up” adjustment to each of its qualifying civil monetary penalties through an interim final rule by July 1, 2016. The catch-up adjustment is based on the Consumer Price Index (CPI-U) and is calculated for each penalty. The amount of the adjustment is calculated by multiplying the current published penalty amount by an adjustment factor provided by the Office of Management and Budget (OMB). The adjustment factor varies depending on the year a penalty was last adjusted. The new penalty amount must be rounded to the nearest dollar.

    Second, the Postal Service must make an annual adjustment for inflation and publish the adjustment in the Federal Register by January 15 of each year, beginning in 2017. Each penalty will be adjusted as instructed by OMB based on CPI-U from the most recent October.

    The 2015 Act allows the interim final rule and annual inflation adjustments to be published without prior public notice or opportunity for public comment.

    Adjustments to Postal Service Civil Monetary Penalties

    Civil monetary penalties may be assessed for postal offenses under sections 106 and 108 of the Deceptive Mail Prevention and Enforcement Act, Public Law 106-168, 113 Stat. 1811, 1814 (see, 39 U.S.C. 3012(a), (c)(1), (d), and 3017(g)(2), (h)(1)(A)); and section 1008 of the Postal Accountability and Enhancement Act, Public Law 109-435, 120 Stat. 3259-3261 (see, 39 U.S.C. 3018 (c)(1)(A)). The statutory civil monetary penalties subject to the 2015 Act and the amount of each penalty after the “catch-up” adjustment are as follows:

    39 U.S.C. 3012(a)—False representations and lottery orders.

    Under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may issue administrative orders prohibiting persons from using the mail to obtain money through false representations or lotteries. Persons who evade, attempt to evade, or fail to comply with an order to stop such prohibited practices may be liable to the United States for a civil penalty under 39 U.S.C. 3012(a). This section currently imposes a $50,000 penalty for each mailing less than 50,000 pieces, $100,000 for each mailing 50,000 to 100,000 pieces, and $10,000 for each piece above 100,000 up to a penalty of $2,000,000. These penalties were last adjusted in 2000. Based on the guidance in OMB memorandum M-16-06, an adjustment multiplier of 1.36689 will be used. The new penalties will be as follows: $68,345 for each mailing less than 50,000 pieces, $136,689 for each mailing of 50,000 to 100,000 pieces, and $13,669 for each piece above 100,000 not to exceed $2,733,780.

    39 U.S.C. 3012(c)(1)—False representation and lottery penalties in lieu of or as part of an order.

    In lieu of or as part of an order issued under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may assess a civil penalty. Currently, the amount of this penalty, set in 39 U.S.C. 3012(c)(1), is $25,000 for each mailing that is less than 50,000 pieces, $50,000 for each mailing of 50,000 to 100,000 pieces, and an additional $5,000 for every additional 10,000 pieces above 100,000 not to exceed $1,000,000. These penalties were last adjusted in 2000. Based on OMB guidance, an adjustment multiplier of 1.36689 will be used. The new penalties will be $34,172 for each mailing that is less than 50,000 pieces, $68,345 for each mailing of 50,000 to 100,000 pieces, and an additional $6,834 for every additional 10,000 pieces above 100,000 not to exceed $1,366,890.

    39 U.S.C. 3012(d)—Misleading references to the United States Government; Sweepstakes and deceptive mailings.

    Persons sending certain deceptive mail matter described in 39 U.S.C. 3001((h)-(k), including:

    • Solicitations making false claims of Federal Government connection or approval;

    • Certain solicitations for the purchase of a product or service that may be obtained without cost from the Federal Government;

    • Solicitations containing improperly prepared “facsimile checks”; and

    • Certain solicitations for “skill contests” and “sweepstakes” sent to individuals who, in accordance with 39 U.S.C. 3017(d), have requested that such materials not be mailed to them);

    may be liable to the United States for a civil penalty under 39 U.S.C. 3012(d). Currently, this penalty is not to exceed $10,000 for each mailing. The penalty was last adjusted in 2000. Based on OMB guidance, an adjustment multiplier of 1.36689 will be used. The new penalty will be $13,669. 39 U.S.C. 3017(g)(2)—Commercial use of lists of persons electing not to receive skill contest or sweepstakes mailings.

    Under 39 U.S.C. 3017(g)(2), the Postal Service may impose a civil penalty against a person who provides information for commercial use about individuals who, in accordance with 39 U.S.C. 3017(d), have elected not to receive certain sweepstakes and contest information. Currently, this civil penalty may not exceed $2,000,000 per violation. The penalty was last adjusted in 2000. Based on OMB guidance, an adjustment multiplier of 1.36689 will be used. The new penalty may not exceed $2,733,780 per violation.

    39 U.S.C. 3017(h)(1)(A)—Reckless mailing of skill contest or sweepstakes matter.

    Currently, under 39 U.S.C. 3017(h)(1)(A), any promoter who recklessly mails nonmailable skill contest or sweepstakes matter may be liable to the United States in the amount of $10,000 per violation for each mailing to an individual. The penalty was last adjusted in 2000. Based on OMB guidance, an adjustment multiplier of 1.36689 will be used. The new penalty is $13,669 per violation.

    39 U.S.C. 3018(c)(1)(A)—Hazardous material.

    Under 39 U.S.C. 3018(c)(1)(A), the Postal Service may impose a civil penalty payable into the Treasury of the United States on a person who knowingly mails nonmailable hazardous materials or fails to follow postal laws on mailing hazardous materials. Currently, this civil penalty is at least $250, but not more than $100,000 for each violation. The penalty amounts were last adjusted in 2006. Based on OMB guidance, an adjustment multiplier of 1.17858 will be used. The new penalty is at least $295, but not more than $117,858 for each violation.

    List of Subjects in 39 CFR Part 233

    Administrative practice and procedure, Banks, Banking, Credit, Crime, Infants and children, Law enforcement, Penalties, Privacy, Seizures and forfeitures.

    For the reasons set out in this document, the Postal Service amends 39 CFR part 233 as follows:

    PART 233—INSPECTION SERVICE AUTHORITY 1. The authority citation for 39 CFR part 233 is revised to read as follows: Authority:

    39 U.S.C. 101, 102, 202, 204, 401, 402, 403, 404, 406, 410, 411, 1003, 3005, 3012, 3017, 3018; 12 U.S.C. 3401-3422; 18 U.S.C. 981, 983, 1956, 1957, 2254, 3061; 21 U.S.C. 881; Pub. L. 101-410, 104 Stat. 890; Pub. L. 104-208, 110 Stat. 3009-378; Pub. L. 106-168, 113 Stat. 1806; Pub. L. 114-74, 129 Stat. 584.

    2. Revise § 233.12 to read as follows:
    § 233.12 Civil penalties.

    (a) False representations and lottery orders. Under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may issue administrative orders prohibiting persons from using the mail to obtain money through false representations or lotteries. Persons who evade, attempt to evade, or fail to comply with an order to stop such prohibited practices may be liable to the United States for a civil penalty under 39 U.S.C. 3012(a). As adjusted under Public Law 114-74, the penalties are as follows: $68,345 for each mailing less than 50,000 pieces, $136,689 for each mailing of 50,000 to $100,000 pieces, and $13,669 for each piece above 100,000 not to exceed $2,733,780.

    (b) False representation and lottery penalties in lieu of or as part of an order. In lieu of or as part of an order issued under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may assess a civil penalty payable under 39 U.S.C. 3012(c)(1). As adjusted under Public Law 114-74, the penalties are as follows: $34,172 for each mailing that is less than 50,000 pieces, $68,345 for each mailing of 50,000 to 100,000 pieces, and an additional $6,834 for every additional 10,000 pieces above 100,000 not to exceed $1,366,890.

    (c) Misleading references to the United States Government; Sweepstakes and deceptive mailings. Persons sending certain deceptive mail matter described in 39 U.S.C. 3001(h)-(k), including:

    (1) Solicitations making false claims of Federal Government connection or approval;

    (2) Certain solicitations for the purchase of a product or service that may be obtained without cost from the Federal Government;

    (3) Solicitations containing improperly prepared “facsimile checks”; and

    (4) Solicitations for “skill contests” and “sweepstakes” sent to individuals who, in accordance with 39 U.S.C. 3017(d), have requested that such materials not be mailed to them; may be liable to the United States for a civil penalty under 39 U.S.C. 3012(d). As adjusted under Public Law 114-74, this penalty is not to exceed $13,669 for each mailing.

    (d) Commercial use of lists of persons electing not to receive skill contest or sweepstakes mailings. Under 39 U.S.C. 3017(g)(2), the Postal Service may impose a civil penalty against a person who provides information for commercial use about individuals who, in accordance with 39 U.S.C. 3017(d), have elected not to receive certain sweepstakes and contest information. As adjusted under Public Law 114-74, the penalty may not exceed $2,733,780 per violation.

    (e) Reckless mailing of skill contest or sweepstakes matter. Under 39 U.S.C. 3017(h)(1)(A), any promoter who recklessly mails nonmailable skill contest or sweepstakes matter may be liable to the United States for a civil penalty for each mailing to an individual. As adjusted under Public Law 114-74, the penalty is $13,669 per violation.

    (f) Hazardous material. Under 39 U.S.C. 3018(c)(1)(A), the Postal Service may impose a civil penalty payable into the Treasury of the United States on a person who knowingly mails nonmailable hazardous materials or fails to follow postal laws on mailing hazardous materials. As adjusted under Public Law 114-74, the penalty is at least $295, but not more than $117,858 for each violation.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-15464 Filed 6-29-16; 8:45 am] BILLING CODE 7710-12-P
    POSTAL REGULATORY COMMISSION 39 CFR Parts 3000, 3001, and 3008 [Docket No. RM2016-4; Order No. 3379] Ex Parte Communications AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission is issuing a set of final rules amending existing Commission rules related to ex parte communications. The final rules are consistent with the recommended approach to agency treatment of ex parte communications. Relative to the proposed rules, some rules were restructured based on comments received, others were modified to alleviate confusion.

    DATES:

    Effective August 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6820.

    SUPPLEMENTARY INFORMATION: Regulatory History

    81 FR 1931, January 14, 2016.

    Table of Contents I. Introduction II. Background III. Comments IV. Commission Analysis V. Changes to the Proposed Rules VI. Ordering Paragraphs I. Introduction

    In this Order, the Commission adopts final rules concerning ex parte communications. The final rules adopted by this Order amend existing Commission rules and remove obsolete rules no longer applicable under the Postal Accountability and Enhancement Act (PAEA), Public Law 109-435, 120 Stat. 3218 (2006). The final rules are located at 39 CFR part 3008. Existing rules located at §§ 3000.735-501, 502, 3001.5(o), and 3001.7 are amended to reflect the revised location of the ex parte communications rules. Existing rules located at 39 CFR part 3000 are renumbered for consistency with Federal Register guidance.

    The rules as adopted incorporate suggestions offered by commenters that restructure some rules as proposed, but do not materially affect their substance. The initial approach taken by the Commission was to codify only what were considered mandatory ex parte communications requirements in the Code of Federal Regulations (CFR) applicable to a limited set of Commission docket types. The Commission also proposed to issue a more comprehensive policy document to include ex parte communications requirements for other possible docket types.1 The Commission understands comments suggesting the proposed approach would cause confusion concerning when the mandatory rules apply versus when the policy applies. The Commission has adopted modified rules to alleviate this confusion by making the rules inclusive of all proceeding types before the Commission with specific exceptions. This is a change in form, but not substance.2

    1 The opportunity to comment on both the rules and the policy were provided in Order No. 3005. Notice of Proposed Rulemaking Regarding Ex Parte Communications, January 8, 2016 (Order No. 3005).

    2 The Commission's internal policy is revised to reflect the changes in the final rules and will be made available on the Commission's Web site.

    The change in structure also is intended to clarify that the Commission in most instances will effectively take a permit-but-disclose approach to ex parte communications, which was suggested by many of the commenters. However, given the opportunities the Commission provides to participants to avoid ex parte communications issues altogether, the rules do not encourage ex parte communications as the norm.3 The proposed changes in structure also are intended to clarify that penalties for violating ex parte communication rules only apply to very limited proceeding types.

    3 For example, participants generally have sufficient opportunities to make their views known by filing documents on the Commission's Web site during the course of a proceeding.

    II. Background

    On January 8, 2016, the Commission issued Order No. 3005, introducing a proposed revision and reorganization of its rules concerning ex parte communications. See Order No. 3005. Order No. 3005 explained that the current rules concerning ex parte communications are located at §§ 3000.735-501, 502, and 3001.7. See id. The Commission identified a need to revise the existing rules for several reasons. The existing rules contained significant redundancy between the requirements of § 3000.735-501 and the requirements of § 3001.7. Furthermore, the existing rules made it difficult to identify who qualified as Commission “decision-making personnel” without referring to unrelated sections of the CFR.

    The existing rules also referred to rate and classification cases under 39 U.S.C. 3624, which were eliminated under the PAEA. Finally, the existing rules lacked guidance for Commission personnel on how to treat ex parte communications falling outside the scope of the specific docket types mentioned.

    The operative statute requires the Commission to restrict ex parte communications only in matters where the Commission must provide an opportunity for a hearing on the record pursuant to 5 U.S.C. 556 through 557. Under the PAEA, the Commission is only required to provide an opportunity for a hearing in matters regarding a change in the nature of postal services pursuant to 39 U.S.C. 3633. In addition to nature of service matters, Commission regulations historically have extended restrictions on ex parte communications to post office appeal cases pursuant to 39 U.S.C. 404(d)(5) and (6) and complaint cases pursuant to 39 U.S.C. 3662. The Commission considers the restriction appropriate because of the potential impact ex parte communications might have on participants and their associated rights in those types of proceedings. See Order No. 3005 at 2-3.

    In addition to the above three types of proceedings—nature of service, post office closings, and complaints—many other types of proceedings come before the Commission. Accordingly, the Commission attached as a library reference to Order No. 3005 a new proposed internal policy on the treatment of ex parte communications applicable to all cases. For consistency with prevailing principles regarding agency treatment of ex parte communications,4 and for simplicity and efficiency of administration, the Commission policy requires Commission personnel to treat ex parte communications similarly in all proceeding types. In Order No. 3005, the Commission sought public comment on the proposed rules and the attached internal policy.5

    4 Library Reference PRC-LR-RM2016-4/1, January 8, 2016. See Esa L. Sferra-Bonistalli, Ex Parte Communications in Informal Rulemaking, May 1, 2014 (prepared for consideration of the Administrative Conference of the United States); Administrative Conference of the United States, Administrative Conference Recommendation 2014-4, June 6, 2014 (Recommendation 2014-4).

    5 Order No. 3005 at 8. The Commission granted the Postal Service's request for an extension of time to file comments through February 29, 2016, and to file reply comments through March 15, 2016. Order No. 3076, Order Granting Extension of Time to File Comments, February 12, 2016. See Motion for Extension of Time to Submit Comments on Proposed Ex Parte Communications Rulemaking, February 11, 2016.

    The commenters provide instructive perspectives on the Commission's proposed rules. Notably, the commenters alert the Commission to the confusion caused by proposing both an internal policy applicable to all cases and enforceable only on Commission personnel, and regulations applicable only to specific types of cases and applicable to all persons. This final Order is intended to remedy the confusion surrounding when ex parte restrictions apply, and when and what penalties may be imposed. The changes to the proposed rules reflect the input of the commenters but do not materially change the operation of the proposed rules. The final rules formalize, but do not materially change, the Commission's current practice for handling ex parte communications.

    III. Comments

    On February 29, 2016, the Commission received comments from the Postal Service,6 the Public Representative,7 MPA—the Association of Magazine Media (MPA),8 and a group of interested mailer organizations (Joint Commenters).9 On March 15, 2016, the Commission received reply comments from the Postal Service 10 and the Public Representative.11

    6 United States Postal Service Comments on Proposed Ex Parte Communications Rules, February 29, 2016 (Postal Service Comments).

    7 Public Representative's Comments, February 29, 2016 (PR Comments).

    8 Comments of MPA—The Association of Magazine Media, February 29, 2016 (MPA Comments).

    9 Joint Comments of the Association of Mail Electronic Enhancement, the American Catalog Mailers Association, Inc., the Association of Postal Commerce, the Direct Marketing Association, Envelope Manufacturers Association, Epicomm, IDEAlliance, the Major Mailers Association, National Postal Policy Council, News Paper Association of America, Parcel Shippers Association, Saturation Mailers Coalition, the American Forest & Paper Association, and the National Association of Presort Mailers, February 29, 2016 (Joint Comments).

    10 Reply Comments of the United States Postal Service, March 15, 2016 (Postal Service Reply Comments).

    11 Public Representative's Reply Comments, March 15, 2016 (PR Reply Comments).

    While the commenters either support the Commission's effort or find it reasonable for the Commission to ensure that its rules concerning ex parte communications promote transparency and fairness,12 several commenters have concerns regarding the scope of the restrictions of the proposed rules and internal policy. See Postal Service Comments at 2, 3-7; Joint Comments at 5-7.

    12See Postal Service Comments at 2 (“The Postal Service strongly supports the principles of transparency and fairness the proposed rules and policy are intended to promote. . . .”); PR Comments at 4 (“The Public Representative supports the Commission's interest in taking a fresh look at . . . ex parte communications in light of the enactment of the PAEA in 2006. . . .”); MPA Comments at 1 (“The Commission's decision to review and revise its current ex parte rules is reasonable.”); Joint Comments at 3 (“The Joint Commenters support the goal of promoting the transparency and integrity of proceedings before the Commission.”).

    A. Types of Proceedings to Which the Prohibition Against Ex Parte Communications Applies

    The Postal Service, MPA, and the Joint Commenters each express concern that the Commission policy treating all case types similarly is more restrictive than is necessary. See Postal Service Comments at 3-7; MPA Comments at 2-5; Joint Comments at 4-5. They note that the Administrative Procedure Act (APA) expressly prohibits ex parte communications in formal rulemakings only. Postal Service Comments at 3; MPA Comments at 3; Joint Comments at 4. The Postal Service, MPA, and the Joint Commenters appear to agree that the proposed rules unnecessarily restrict desirable communications in informal proceedings. See Postal Service Comments at 3; MPA Comments at 3; Joint Comments at 3. Each discuss Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), to emphasize the value of informal agency contacts with public stakeholders in regulated industry communities. See Postal Service Comments at 7; MPA Comments at 3; Joint Comments at 3. The Postal Service, MPA, and the Joint Commenters express concern that the Commission's policy is not in accord with Recommendation 2014-4. Postal Service Comments at 5-7; MPA Comments at 4-5; Joint Comments at 6. The Joint Commenters state that “[t]he proposed prohibition on ex parte communications in informal rulemakings is inconsistent with the long-standing recommendation of the Administrative Conference and the prevailing practice among other federal agencies.” Joint Comments at 7. The Public Representative suggests that enforceability of the internal policy as it affects nonemployees is a potential issue. PR Comments at 5.

    The Postal Service proposes several modifications to the proposed rules. The Postal Service recommends that ex parte communications be prohibited only “in `contested proceedings' where there are material issues in dispute.” Postal Service Comments at 10. It also proposes that the Commission's decision to apply the restrictions to a particular proceeding should be based upon specific criteria and that the Commission should give notice when the rules will apply. Id. The Postal Service proposes that the definition of an ex parte communication be limited to those “regarding the merits” of a matter before the Commission. Id. at 14. Another Postal Service proposal suggests exempting communications regarding general issues of domestic or international postal policy, postal operations, or other statutory responsibilities not associated with the merits of a contested proceeding. Id. at 15.

    In her reply comments, the Public Representative raises concerns about the applicability of the rationale discussed in Sierra Club. PR Reply Comments at 2. Though the D.C. Circuit noted several benefits in allowing or encouraging informal communications with regulatory agencies, the Public Representative notes that the Commission has a “relatively unique mission” and generally does not conduct the type of large-scale programs to which the Court may have been referring. Id. The Public Representative also states that the Commission's authority typically does not include exercising the same type of industry enforcement action, such as imposing fines or other penalties for failing to meet federal standards. Id. The Public Representative notes that one of the Court's stated benefits to allowing ex parte communication was “[s]purring the provision of information which the agency may need.” Id. (quoting Sierra Club, 657 F.2d 298 at 401). The Public Representative lists current Commission practices highlighting the Commission's commitment to seeking information from outside sources, including providing an opportunity for reply comments in almost all dockets, “extremely generous policy” of granting extensions of time to file comments, acceptance of late-filed comments, and reconsideration of stated opinions. PR Reply Comments at 2. The Public Representative characterizes the Commission as going to “considerable effort to accommodate on-the-record input from those who wish to weigh in on a matter within the Commission's jurisdiction.” Id. at 3.

    B. When Matters Are Before the Commission

    The commenters express concern regarding vagueness in when a matter will be considered to be “before the Commission.” MPA states that most agencies do not consider a matter to be before the agency “until it has issued a formal notice of the commencement of the proceeding, an interested person has filed a complaint or formal request that the agency begin the proceeding, or a person has actual knowledge that the proceeding will be noticed.” MPA Comments at 5. MPA states the proposed rules do not adequately define the terms “expected,” “actively preparing,” and “reasonable period of time.” Id. at 6.

    The Joint Commenters state that Recommendation 2014-4 recommends agencies not impose restrictions on ex parte communications before notice is issued. Joint Comments at 6. The Postal Service criticizes the proposed rules' definition of when a matter is before the Commission, expressing concern that certain docket types involve the filing of periodically required reports, namely the Annual Compliance Report. Postal Service Comments at 16. The Postal Service states that because the scope of the Annual Compliance Report is so broad, the proposed rules would prohibit the Postal Service from ever having an off-the-record discussion about costs, revenues, rates, or quality of service, because of the knowledge that proceeding will be before the Commission annually. Id. at 16-17. The Postal Service proposes an amendment to proposed § 3008.3(c)(4), adding that knowledge of the regular filing of periodic reports does not place a matter before the Commission. Id. at 17. Similarly, the Public Representative questions whether the predictability of certain periodic filings necessarily puts participants on notice of certain proceedings. PR Comments at 6-7.

    C. Recommended Approach: Permit but Disclose

    Several commenters note that the Administrative Conference of the United States considers a general prohibition on ex parte communications to be undesirable. See, e.g., MPA Comments at 4; Joint Comments at 7. The Postal Service, MPA, and the Joint Commenters each suggest an approach more comparable to the approach employed by other agencies.

    The Postal Service lists the approaches taken by the Department of Justice (DOJ), Federal Communications Commission (FCC), and Federal Energy Regulatory Commission (FERC). Postal Service Comments at 6-7. The Postal Service states the FERC limits ex parte restrictions to “contested on-the-record proceedings,” while the FCC classifies informal rulemakings as “permit-but-disclose” proceedings, and the DOJ permits ex parte communications subject to disclosure. Id. at 7 (quoting 18 CFR 385.2201; 47 CFR 1.1206; and 28 CFR 50.17(b) through (c), respectively).

    MPA suggests that the Commission need not go as far as the FERC, identifying a common alternative of permitting ex parte communications but requiring public disclosure of their substance. MPA Comments at 4. Similarly, the Joint Commenters state that “[t]he Commission's proposed rules should be revised, consistent with APA requirements for reasoned decision making, to allow the Commission to permit but disclose any ex parte communications that it relies on in the context of an informal rulemaking proceeding.” Joint Comments at 8.

    In its reply comments, the Postal Service suggests that Executive Order 11570, issued by President Nixon shortly after the enactment of the Postal Reorganization Act of 1970, and referenced in the Public Representative's comments, may have “envisioned the `permit-but-disclose' approach” rather than an outright prohibition. Postal Service Reply Comments at 4.

    D. Penalties

    The Public Representative expresses concern about the enforceability of the internal policy on individuals outside the Commission. PR Comments at 5. Although in Order No. 3005 the Commission stated that the policy “will not be binding on persons outside of the Commission,” it is evident from the comments that there is uncertainty and ambiguity regarding the applicability of certain restrictions across both the rules and internal policy. See Order No. 3005 at 8.

    MPA, in its discussion of the ambiguity of the definition of a matter before the Commission, alludes to the “potentially draconian consequences of an adverse Commission finding.” MPA Comments at 6. The Joint Commenters state that the penalties listed in proposed §§ 3008.7(a) and (b) “may be appropriate in the context of an improper ex parte contact in an adjudicatory proceeding, but they are excessive in the context of an informal rulemaking.” Joint Comments at 8-9. The Joint Commenters fear the penalties would be “especially punitive” where the communication was made prior to notice of the informal rulemaking. Id. at 9.

    E. Postal Service's Proposed Changes to the January 2016 Proposed Rule

    The Postal Service includes its own proposed rules regarding ex parte communications. Postal Service Comments, Appendix A (Postal Service Proposed Rules). The proposed rules are a “redline” revision of the Commission's proposed rules and include line changes in particular sections.

    1. Part 3000, Subpart B

    Postal Service Proposed Rule 3000.735-501(a) changes the description of the Commission's internal policy to read that the policy applies only to interactions “regarding the merits of certain contested proceedings” before the Commission. Postal Service Proposed Rules 3000.735-501(b) and 3000.735-502 remain unchanged from the Commission's proposed rules.

    2. Section 3008.1

    The Postal Service does not propose to change the applicability provisions of proposed §§ 3008.1(a) through (d). However, Postal Service Proposed Rule 3008.1(e) narrows the scope of the Commission's proposed rule. The Postal Service's revision states that:

    [a]ny other contested proceeding in which the Commission, in its discretion, determines that it is appropriate to apply the rules of this section based on considerations of fairness or for other reasons, and provides notice on the public record of the proceeding that the rules of this section will apply (and the reasons therefor). For purposes of this section, “contested proceeding” means any docketed proceeding before the Commission in which there are multiple adverse parties and/or disputed issues of fact, law or policy. This revision adds specific conditions for the application of ex parte restrictions, including the type and subject of a matter before the Commission. 3. Section 3008.2

    The Postal Service's proposed revisions to proposed § 3008.2(a), setting forth the definition of ex parte communications, include adding the qualifier that the communication be one “regarding the merits of a matter” before the Commission. Postal Service Proposed Rule 3008.2. The Postal Service defines a communication “regarding the merits” as “one that is intended to affect, or capable of affecting the outcome of a proceeding, or intended to influence, or capable of influencing a Commission decision on any substantive issue in the proceeding.” Postal Service Proposed Rule 3008.2(a).

    Postal Service Proposed Rule 3008.2(b) makes a minor revision to proposed § 3008.2(b)(3) and adds two exceptions to the definition of ex parte communications. Proposed § 3008.2 states the exception for communications made during off-the-record technical conferences where public notice of the event is provided and the event is open to all persons participating in the matter. The Postal Service's proposed change revises the exception to read that the event must be open to all persons participating in the matter before the Commission “as a party, intervenor, or Public Representative.” Postal Service Proposed Rule 3008.2(b)(3).

    The Postal Service removes proposed § 3008.2(b)(5), “communications not material to the matter before the Commission,” and adds the following two exceptions, located at §§ 3008.2(b)(5) and (6):

    (5) Questions or comments seeking to explain or clarify the meaning or operation of a statement, term, technical reference, or description of methodology used by the Commission or a participant in a proceeding, or to ascertain or confirm the accuracy of the Commission's (or participant's) understanding or interpretation of it; and

    (6) Communications regarding general issues of domestic or international postal policy, postal operations, or other statutory responsibilities of the Commission not associated with proceedings identified in part 3008.1 of this chapter.

    The Postal Service states the Commission's proposed § 3008.2(b)(5) is not well defined and would be unnecessary if ex parte communications were limited to those “regarding the merits.” Postal Service Comments at 14. The Postal Service suggests the sixth exception to allow for general discussions about the postal industry. Id. at 15.

    4. Section 3008.3

    The Postal Service proposes that the definition of a matter before the Commission not include matters where the person “has knowledge that a request to initiate a proceeding is expected to be filed.” See id. at 17. Postal Service Proposed Rule 3008.3 removes the Commission's proposed § 3008.3(b). The Postal Service also proposes removing the explanation that the mere potential that a request may be filed does not place a matter before the Commission, and that an affirmative action or actively preparing a request with the intent to file must exist. Id. at 16.

    Alternatively, the Postal Service suggests amending § 3008.3(c)(4) by adding that “mere knowledge that a periodic report will be filed at regular intervals as required by statute or regulation” does not place a matter before the Commission. Id.

    5. Section 3008.4

    The Postal Service does not propose any revisions to proposed § 3008.4, defining the persons subject to the ex parte communications rules.

    6. Section 3008.5

    The Postal Service proposes to amend the prohibitions set forth in proposed § 3008.5. Postal Service Proposed Rule 3008.5(a) narrows the scope of prohibited communications to only those “regarding the merits of a matter before the Commission.” Postal Service Proposed Rule 3008.5(a).

    The Postal Service also proposes to revise proposed § 3008.5(b), regarding the Commission's reliance on information obtained through ex parte communications. Where the Commission's proposed rule prohibits reliance on information obtained through ex parte communications, the Postal Service proposes to allow reliance if certain circumstances are present, most notably the opportunity for rebuttal. Postal Service Comments at 19-20. Postal Service Proposed Rule 3008.5(b) reads as follows:

    Commission decision-making personnel may rely upon information obtained through ex parte communications in determining the merits of a proceeding only where the communications are made part of the record pursuant to part 3008.6(b), where an opportunity for rebuttal has been provided pursuant to part 3008.6(d), and where reliance on the information will not cause undue delay or prejudice to any party.

    The Postal Service states that the revision allows the Commission to consider “highly relevant” statements potentially made by those unfamiliar with Commission practice. Postal Service Comments at 19. Furthermore, the Postal Service states that proposed § 3008.6(c), allowing the Commission to disregard a factual assertion or rebuttal, presupposes that the Commission may, in some circumstances, decide to consider the information. Id.

    Proposed § 3008.5(c) is unchanged by the Postal Service's proposed revisions.

    7. Section 3008.6

    The Postal Service proposes extensive revisions to proposed § 3008.6. In proposed § 3008.6(a), the Postal Service proposes to change the Commission “will not” to the Commission “may not” consider an ex parte communication. Postal Service Proposed Rule 3008.6(a).

    The Postal Services raises concerns about the treatment of sensitive or confidential information submitted in an ex parte communication. Postal Service Comments at 17-18. Postal Service Proposed Rule 3008.6(b) reflects this concern, as the Postal Service includes proposed guidance for the treatment of sensitive information. The Postal Service's adds, in redline, the following:

    (b) Commission decision-making personnel who receive, or who make or knowingly cause to be made, ex parte communications prohibited by this part shall immediately notify all participants that the communications will need to be disclosed on the public record, and provide an opportunity for the participants to apply for non-public treatment of any materials or information protected from disclosure under applicable law. Any such application shall be submitted to the Commission within five business days after notification. The Commission decision-making personnel shall then promptly place, or cause to be placed, on the public record of the proceeding:

    (1) All such written communications;

    (2) Memoranda stating the substance of all such oral communications, including the names of all participants and the date(s) of such communications;

    . . .

    (4) In placing information or materials in the public record under this part, the Commission shall withhold any non-public information that a participant in the communication has demonstrated is exempt from disclosure under applicable laws, and file the non-public information under seal pursuant to the procedures identified in its rules of practice and procedure.

    The Postal Service also adds a requirement upon receipt of communications seeking to explain or clarify the meaning as set forth in Postal Service Proposed Rule 3008.2(b)(5), where the comment ultimately influences the Commission decision. Postal Service Proposed Rule 3008.6(c) reads as follows:

    Commission decision-making personnel who receive, or who make or knowingly cause to be made, communications that are described in part 3008.2(b)(5) of this chapter shall follow the disclosure requirements set forth herein in part 3008.6(b) in the event that such communications affect the outcome of the proceeding or influence the Commission's decision on any substantive issue in the proceeding.

    The Postal Service proposes to move the Commission's proposed § 3008.6(c) regarding opportunity for rebuttal to § 3008.6(d) but does not otherwise amend the rule.

    8. Section 3008.7

    The Postal Service does not propose any amendments to proposed § 3008.7 regarding penalties for violations of the ex parte communication rules.

    F. Additional Comments

    The Public Representative points to Recommendation 2014-4, suggesting that agencies should explain whether social media communications fall within the rules' definition of ex parte communications. PR Comments at 7. The Public Representative also provides background information on the Commission's authority for its existing rules, as well as the Administrative Conference of the United States and its relevant report and recommendation. Id. at 8-13.

    The Public Representative suggests conforming the numerical designation of the rules in 39 CFR part 3000 consistent with the Federal Register's current preferences. Id. at 14. The Public Representative recommends replacing the hyphenated six-digit extensions with standard one-or-two-digit extensions. Id.

    IV. Commission Analysis A. Application of Rules Concerning Ex Parte Communications and Penalties for Violations

    The changes to the proposed rules reflect the Commission's recognition of a key area of concern outlined in the submitted comments. Notably, the proposed rules left uncertainty regarding whether ex parte communications were prohibited in all cases and whether penalties were appropriate for violations in informal rulemaking proceedings.

    Although the proposed rules were intended only to strictly prohibit ex parte communications in three particular types of matters (nature of service proceedings, appeals of post office closing and consolidations, and rate or service complaints), the Commission recognizes that proposed § 3008.1(e) left broad discretion to the Commission to apply the rules to any case. Such broad authority coupled with the guidance set forth in the internal policy gave the impression that the Commission could apply the ex parte prohibition and impose penalties for violations in any matter.

    Such an interpretation is not the intent of this rulemaking, and therefore clarification and revision are required. The rulemaking is intended to align the Commission's rules with prevailing agency practices and clear the existing rules of redundancy and obsolete references. This rulemaking was not implemented to change, as a practical matter, the status quo for the treatment of ex parte communications. Essentially, this rulemaking was intended to codify the ex parte practices that the Commission has followed for many years.

    Several commenters share concern over “draconian” penalties potentially applied in informal rulemakings. See, e.g., MPA Comments at 6; Joint Comments at 6-7. The final rules address this concern. Final § 3008.1 makes clear that the ex parte restrictions will indeed apply to all cases other than the listed exceptions or cases exempted by order. However, the change to the provision for penalties specifically states that the penalties will not apply to cases other than the three specific types of proceedings listed.

    In operation, the final rules create three classes of proceedings before the Commission. The first class includes nature of postal service proceedings (N cases), appeals of postal service decisions to close or consolidate post offices (A cases), and rate or service complaints (C cases). These proceedings will be subject to the ex parte rules, and any ex parte communications occurring in these proceedings will be subject to the penalties set forth in §§ 3008.7(b) and (c).

    The second class of proceeding includes public inquiry proceedings (PI cases) and international mail proceedings (IM cases) undertaken pursuant to 39 CFR part 3017. Due to the highly collaborative nature of these proceedings and practical limitations on the ability to disclose each and every communication in these proceedings,13 the ex parte rules do not apply. Off-the-record communications in these proceedings are expected and permitted. The Commission may also, when circumstances warrant, suspend the application of the ex parte rules in other particular cases.

    13See Recommendation 2014-4 at 6 (“In formulating policies governing ex parte communications in informal rulemaking proceedings, agencies should consider the following factors: . . . (c) Limitations on agency resources, including staff time, that may affect the ability of agency personnel to accept requests for face-to-face meetings or prepare summaries of such meetings. . . .”).

    The third class of proceeding includes all other case types before the Commission (Annual Compliance Review (ACR), Competitive Products (CP), Mail Classification (MC), Market Test (MT), Rate (R), Rulemaking (RM), and Tax Computation (T)). The ex parte rules will apply to these proceedings, but ex parte communications received by the Commission will not be subject to the penalties set forth in § 3008.7. Instead, the communication will be disclosed pursuant to § 3008.6(b). In this way, the rules will operate similarly to the “permit-but-disclose” approach suggested by the Postal Service, MPA, and the Joint Commenters.14

    14See Postal Service Comments at 7 (suggesting the permit-but-disclose approach employed by the DOJ and FCC); MPA Comments at 4 (“A common alternative is to permit ex parte communications but require public disclosure of their substance.”); Joint Comments at 8 (“The Commission's proposed rules should be revised . . . to allow the Commission to permit and disclose any ex parte communications that it relies on in the context of an informal rulemaking proceeding.”).

    While the Commission understands and appreciates the benefits of sharing information and promoting a candid dialogue on key issues,15 the Commission, as a matter of policy, prefers that those benefits be achieved through on-the-record communications. Indeed, as the Public Representative notes, the Commission has demonstrated a commitment to providing opportunities for all interested parties to participate in informal rulemakings. See PR Comments at 2-3. The preference for on-the-record discourse is consistent with, and supportive of, the Commission's mission to “[e]nsure transparency and accountability of the United States Postal Service and foster a vital and efficient universal mail system.” 16

    15See Postal Service Comments at 6.

    16 Postal Regulatory Commission, Strategic Plan 2012-2016, at 4.

    The final rules aim to strike a balance between the Commission's preference for the transparency of on-the-record communication with the Postal Service and interested parties, and the commenters' desire for a permit-but-disclose approach to ex parte communications. While the final rules do not “permit” ex parte communications, in practice the rules will operate quite similarly to the approach proposed by the commenters. Where applicable, an ex parte communication received by the Commission—in cases other than N, A, and C cases—will be subject only to public disclosure and nothing more. Thus, while ex parte communications will not be permitted or encouraged by the Commission, the Commission will treat ex parte communications in a similar manner as the other agencies mentioned by the commenters.

    The application of the rules to all cases—other than those exempted by §§ 3008.1(b) through (d)—should alleviate concerns about when the ex parte rules apply. Concerns about “draconian” 17 or “especially punitive” 18 penalties chilling valuable communications should likewise be remedied by the clarification that the penalties will apply only in N, A, and C cases.

    17See MPA Comments at 6; Joint Comments at 6-7.

    18See Joint Comments at 9.

    By applying the ex parte rules in all case types but only permitting penalties to apply to three specific types of cases, the Commission's final rules aim to eliminate the need for pre-communication evaluation expressed by some commenters of whether a case is a “contested proceeding” or whether a communication “regards the merits” of a case. The ex parte rules' applicability to all case types and communications (aside from those excepted by final §§ 3008.1(b) through (d) and § 3008.2(b)), eliminates uncertainty about the nature of the case and/or communication itself. For example, under the Postal Service's Proposed Rule 3008.2(a), certain terms create uncertainty about the nature of a communication. Specifically, it is unclear how would one determine whether a communication was “intended to affect or influence” or was “capable of affecting or influencing” a Commission decision. The Postal Service's Proposed Rules would also require a determination of what constitutes a “substantive issue in the proceeding.” These necessary determinations would create even more uncertainty than the proposed rules. Accordingly, while the Commission supports the goal of eliminating uncertainty, it declines to adopt the revisions set forth in Postal Service Proposed Rules 3008.1 and 3008.2.

    B. Commission Reliance on Information Obtained Through Ex Parte Communications

    The Postal Service's recommendation that Commission decision-making personnel be permitted to rely on information obtained through ex parte communications is consistent with applicable law. As explained in Sierra Club, accepting ex parte communications creates a danger of having one administrative record before the public, and another record before the Commission. Sierra Club, 657 F.2d at 401. However, the danger is avoided where the agency relies only on information that is made part of the public record. Id. Proposed § 3008.6(c) already contemplates giving participants an opportunity to rebut ex parte communications received and placed on the public record. Reliance on the information received in either an ex parte communication, or any rebuttal, is appropriate to consider when the communications are made part of the public record.

    Accordingly, the final rules adopt, in part, the suggestions made in Postal Service Proposed Rule 3008.5(b), regarding Commission reliance on information obtained through ex parte communications. This change is consistent with prevailing agency guidance 19 and with the underlying policy of fairness and transparency, particularly given the provision providing an opportunity for rebuttal of information received via ex parte communication and considered in decision-making. The final rules contain slightly different language than the Postal Service Proposed Rules to enhance clarity and consistency throughout part 3008.

    19See Recommendation 2014-4 at 7-8.

    C. When a Matter Is Before the Commission

    The Commission acknowledges the comments regarding the definition of when a matter is before the Commission, triggering the application of the ex parte restrictions. The commenters correctly point out that some agencies' ex parte restrictions apply only upon formal notice of commencement of the proceeding. However, as the Public Representative notes, the Commission is differently situated than other administrative agencies, and its current practices go to “considerable effort to accommodate” on-the-record communications. See PR Reply Comments at 2-3. Indeed, the Commission generally makes public every matter it considers. The docket system provides ample opportunity for communication on the record.

    Under specific circumstances, the APA states that an agency's ex parte communications restrictions may be applied “beginning at such time as the agency may designate,” but the prohibitions must apply in cases where “the person responsible for the communication has knowledge that [the case] will be noticed.” 5 U.S.C. 557(d)(1)(E). If this requirement were to be applied to proceedings involving periodic reports, such as the Annual Compliance Determination (ACD), the Postal Service contends that all communications would be barred because the filing party always will have knowledge that the case will be noticed. See Postal Service Comments at 16.

    The final rules address this concern by eliminating the prior knowledge provision where the matter before the Commission is a periodic report, such as the ACD, or the Commission's review required by 39 U.S.C. 3622(d)(3) that should commence later this year. The effect of this change is to not consider these types of matters as being before the Commission until the Commission notices the start of proceeding, unless the Commission issues a notice prior to that time specifically restricting ex parte communications. The matter is no longer before the Commission once the Commission issues its final report or review.

    D. Protection of Sensitive Material

    The Postal Service expresses concern about the treatment of sensitive or confidential information submitted in ex parte communications. Postal Service Comments at 17-18. The Postal Service suggests revising the proposed rules to require the Commission to advise the disclosing party that the communication must be disclosed and allow an opportunity for an application for non-public treatment to be filed. Postal Service Proposed Rule 3008.6(b).

    The Commission's rules located at 39 CFR part 3007 set forth the procedures for the treatment of sensitive material filed on the record in docketed proceedings. Proposed § 3008.6(b) dictates that material submitted not in a docketed proceeding but as part of an ex parte communication must be disclosed in order to be considered by the Commission.

    Until disclosure, however, the Commission will treat known sensitive material as confidential, subject to Freedom of Information Act requirements. For example, the Commission may not allow outside persons access to information provided by the Postal Service and identified as exempt from public disclosure. See 39 U.S.C. 504(g). The existing statutory safeguards render it unnecessary for the Commission's ex parte rules to further protect sensitive material. Accordingly, the Commission declines to adopt the Postal Service's proposed rule on the protection of sensitive material included in an ex parte communication.

    E. Communications Made via Social Media.

    The definition of an ex parte communication set forth in proposed § 3008.2(a) includes electronic communications. While most social media interactions are made electronically, social media interactions pose a complex issue requiring further consideration. The Commission takes the Public Representative's suggestion under advisement.

    F. Recodification of Part 3000

    The Commission agrees with the Public Representative that this rulemaking provides an appropriate opportunity to make the numbering of sections in part 3000 consistent with rest of the Commission's rules. As the Public Representative notes, the recodification is not a substantive change to the rules. See PR Comments at 14. This change is consistent with this rulemaking's goal of achieving clarity and ease of understanding in the Commission's procedural rules.

    V. Changes to the Proposed Rules

    The final rules incorporate many of the suggestions identified in the comments. While the suggestions require the structure of the final rules to change from those initially proposed in Order No. 3005, the substance of the rules and their effect on participants remains the same. Differences between the proposed and final rules are described below.

    A. Section 3008.1

    Proposed § 3008.1 identified the types of Commission matters subject to ex parte restrictions. Listed among those types of matters were nature of postal service proceedings, appeals of post office closings and consolidations, and rate or service complaints. The rule also made applicable, “any other matter in which the Commission, in its discretion, determines that it is appropriate to apply the rules.” Order No. 3005 at 12. In order to address commenters' concerns about vagueness and uncertainty of the rules' applicability, the Commission amends proposed § 3008.1 as follows:

    1. Section 3008.1(a)

    While the proposed rule lists the types of Commission dockets to which the rules apply, the final rules state that the rules of part 3008 apply to all Commission proceedings except for those listed in §§ 3008.1(b) through (d).

    2. Sections 3008.1(b) Through (d)

    The final rule identifies three types of proceedings to which the rules concerning ex parte communication will not apply. Section 3008.1(b) exempts public inquiry (PI) proceedings undertaken to gather information and which are not intended to result in a binding Commission decision. Section 3008.1(c) exempts international mail (IM) proceedings undertaken pursuant to 39 CFR part 3017. Section 3008.1(d) permits the Commission to identify particular proceedings where the rules will not apply.

    B. Section 3008.3

    The final rule removes the prior knowledge provision when the matter before the Commission concern matters such as the ACD or § 3622(d)(3) review. These matters will not be considered before the Commission until noticed, or until the Commission issues a prior notice specifically stating that ex parte rules apply.

    C. Section 3008.5

    Proposed § 3008.5(b) states that “Commission decision-making personnel shall not rely upon any information obtained through ex parte communications.” The final rules amend this section by allowing the Commission to rely on information obtained through ex parte communications where the communications are made part of the record and the Commission provides an opportunity for rebuttal.

    D. Section 3008.7

    The final rule moves proposed §§ 3008.7(a) and (b) to §§ 3008.7(b) and (c), respectively. It replaces § 3008.7(a) with an explanation that the penalties for a violation of the ex parte rules are applicable only to nature of postal service proceedings, appeals of post office closings or consolidations, and rate or service complaints.

    E. Part 3000

    In accord with the Public Representative's suggestion of renumbering part 3000, the final rules recodify existing rules in conformance with the Federal Register Document Drafting Handbook.

    Existing part 3000, subpart A includes: § 3000.735-101 Cross-reference to employee ethical conduct standards and financial disclosure regulations; § 3000.735-102 Counseling and advisory services; § 3000.735-103 Financial interests; and § 3000.735-104 Outside employment. These four provisions are renumbered with the following two-digit extensions, respectively: §§ 3000.05, 3000.10, 3000.15, and 3000.20.

    Existing part 3000, subpart B is amended as described in Order No. 3005. Additionally, the two provisions are renumbered. Proposed § 3000.735-501 is renumbered as § 3000.50. Proposed § 3000.735-502 is reserved as § 3000.55.

    VI. Ordering Paragraphs

    It is ordered:

    1. Parts 3000 and 3001 of title 39, Code of Federal Regulations, are revised as set forth below the signature of this order, effective 30 days after publication in the Federal Register.

    2. Part 3008 of title 39, Code of Federal Regulations, is adopted as set forth below the signature of this order, effective 30 days after publication in the Federal Register.

    3. The Secretary shall arrange for publication of this order in the Federal Register.

    List of Subjects 39 CFR Part 3000

    Conflicts of interests, Ex parte communications.

    39 CFR Part 3001

    Administrative practice and procedure, Confidential business information, Ex parte communications, Freedom of information, Sunshine Act.

    39 CFR Part 3008

    Administrative practice and procedure, Ex parte communications.

    For the reasons discussed in the preamble, the Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

    PART 3000—STANDARDS OF CONDUCT 1. The authority citation for part 3000 is revised to read as follows: Authority:

    39 U.S.C. 503, 504, 3603; E.O. 12674, 54 FR 15159, 3 CFR,1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3 CFR, 1990 Comp., p. 396; 5 CFR parts 2634 and 2635.

    Subpart A—General Provisions
    §§ 3000.735-101 through 3000.735-104 [Redesignated as §§ 3000.5, 3000.10, 3000.15, 3000.20]
    2. Redesignate §§ 3000.735-101 through 3000.735-104 as §§ 3000.5, 3000.10, 3000.15, and 3000.20, respectively. 3. Revise subpart B of part 3000 to read as follows: Subpart B—Ex Parte Communications Sec. 3000.50 Ex parte communications prohibited. 3000.55 [Reserved] Subpart B—Ex Parte Communications
    § 3000.50 Ex parte communications prohibited.

    (a) The Commission maintains a written employee policy regarding ex parte communications applicable to all interactions, oral or in writing (including electronic), between Commission decision-making personnel, and the United States Postal Service or public stakeholders in matters before the Commission. It is the responsibility of all Commission personnel to comply with this policy, including the responsibility to inform persons not employed by the Commission of this policy when required. The policy is available for review on the Commission's Web site at www.prc.gov.

    (b) Additional ex parte communications requirements, applicable to specific docket types, are described in part 3008 of this chapter.

    § 3000.55 [Reserved]
    PART 3001—RULES OF PRACTICE AND PROCEDURE 4. The authority citation for part 3001 continues to read as follows: Authority:

    39 U.S.C. 404(d); 503; 504; 3661.

    § 3001.5 [Amended]
    5. Amend § 3001.5 by removing and reserving paragraph (o).
    § 3001.7 [Removed and Reserved]
    6. Remove and reserve § 3001.7.
    7. Add part 3008 to read as follows: PART 3008—EX PARTE COMMUNICATIONS Sec. 3008.1 Applicability. 3008.2 Definition of ex parte communications. 3008.3 Definition of a matter before the Commission. 3008.4 Definitions of persons subject to ex parte communication rules. 3008.5 Prohibitions. 3008.6 Required action upon ex parte communication. 3008.7 Penalty for violation of ex parte communication rules. Authority:

    39 U.S.C. 404(d)(5); 503; 504; 3661(c); 3662.

    § 3008.1 Applicability.

    (a) The rules in this section are applicable to all Commission proceedings except for the instances identified in paragraphs (b) through (d) of this section.

    (b) The rules in this section are not applicable to public inquiry (PI) proceedings, undertaken to gather information and which are not intended to result in a binding Commission decision.

    (c) The rules in this section are not applicable to international mail (IM) proceedings undertaken pursuant to part 3017 of this chapter.

    (d) The rules in this section are not applicable to specifically identified proceedings upon written directive from the Commission.

    § 3008.2 Definition of ex parte communications.

    (a) Subject to the exceptions specified in paragraph (b) of this section, ex parte communications include all communications, oral or written (including electronic), between Commission decision-making personnel, and the Postal Service or public stakeholders regarding matters before the Commission.

    (b) Ex parte communications do not include:

    (1) Documents filed using the Commission's docketing system;

    (2) Communications during the course of Commission meetings or hearings, or other widely publicized events where the Commission provides advance public notice of the event indicating the matter to be discussed, the event is open to all persons participating in the matter before the Commission, and a summary of the event is provided for the record;

    (3) Communications during the course of off-the-record technical conferences associated with a matter before the Commission, or the pre-filing conference for nature of service cases required by § 3001.81 of this chapter, where advance public notice of the event is provided indicating the matter to be discussed, and the event is open to all persons participating in the matter before the Commission;

    (4) Questions concerning Commission procedures, the status of a matter before the Commission, or the procedural schedule of a pending matter, where these issues are not contested matters before the Commission; and

    (5) Communications not material to the matter before the Commission.

    § 3008.3 Definition of a matter before the Commission.

    (a) A matter is before the Commission at such time as the Commission may designate, but in no event later than the earlier of the filing of a request to initiate a proceeding or the Commission noticing a proceeding.

    (b) A matter is also before the Commission at such time as the person responsible for the communication has knowledge that a request to initiate a proceeding is expected to be filed.

    (c) Paragraph (b) of this section does not apply to periodic reviews or reports issued by the Commission, or the 10-year review pursuant to 39 U.S.C. 3622(d)(3).

    (d) The following explanations apply:

    (1) A matter is no longer before the Commission upon the issuance of the final order or decision in the docketed matter;

    (2) A matter is again before the Commission upon the filing of a request for reconsideration. The matter remains before the Commission until resolution of the matter under reconsideration;

    (3) A matter is again before the Commission upon the remand of a Commission's final decision or order by an appellate court. The matter remains before the Commission until resolution of the matter under remand; and

    (4) The mere potential that a request may be filed does not place a matter before the Commission. An affirmative action announcing, or actively preparing, an actual request with the intent to file within a reasonable period of time must be present.

    § 3008.4 Definitions of persons subject to ex parte communication rules.

    (a) Commission decision-making personnel include:

    (1) The Commissioners and their staffs;

    (2) The General Counsel and staff;

    (3) The Director of the Office of Accountability and Compliance and staff;

    (4) Contractors, consultants, and others hired by the Commission to assist with the Commission's analysis and decision; and

    (5) Any other employee who may reasonably be expected to be involved in the decisional process.

    (b) The Postal Service includes all Postal Service employees, contractors, consultants, and others with an interest in a matter before the Commission. Any interaction between the Postal Service and Commission decision-making personnel concerning a matter before the Commission expresses an interest in the matter before the Commission.

    (c) Public stakeholders include all other persons not previously described, with an interest in a matter before the Commission. This includes the Commission non-decision-making personnel identified in paragraph (d) of this section. Any interaction between a public stakeholder and Commission decision-making personnel concerning a matter before the Commission expresses an interest in the matter before the Commission.

    (d) Commission non-decision-making personnel include:

    (1) All Commission personnel other than decision-making personnel;

    (2) Commission personnel not participating in the decisional process owing to the prohibitions of § 3001.8 of this chapter regarding no participation by investigative or prosecuting officers;

    (3) The Public Representative and other Commission personnel assigned to represent the interests of the general public pursuant to 39 U.S.C. 505 in the specific case or controversy at issue (regardless of normally assigned duties); and

    (4) Contractors, consultants, and others hired by the Commission to provide an independent analysis of issues before the Commission (and Commission employees assigned thereto).

    § 3008.5 Prohibitions.

    (a) Ex parte communications between Commission decision-making personnel, and the Postal Service or public stakeholders is prohibited.

    (b) Commission decision-making personnel shall not rely upon any information obtained through ex parte communications unless the communications are made part of the record of the proceeding, where an opportunity for rebuttal has been provided, and reliance on the information will not cause undue delay or prejudice to any party.

    (c) Paragraph (a) of this section does not constitute authority to withhold information from Congress.

    § 3008.6 Required action upon ex parte communications.

    (a) Commission decision-making personnel who receive ex parte communications relevant to the merits of the proceeding shall decline to listen to such communications and explain that the matter is pending for determination. Any recipient thereof shall advise the communicator that the communication will not be considered, and shall promptly and fully inform the Commission in writing of the substance of and the circumstances attending the communication, so that the Commission will be able to take appropriate action.

    (b) Commission decision-making personnel who receive, or who make or knowingly cause to be made, ex parte communications prohibited by this part shall promptly place, or cause to be placed, on the public record of the proceeding:

    (1) All such written communications;

    (2) Memoranda stating the substance of all such oral communications; and

    (3) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (b)(1) and (2) of this section.

    (c) Requests for an opportunity to rebut, on the record, any facts or contentions contained in an ex parte communication which have been placed on the public record of the proceeding pursuant to paragraph (b) of this section may be filed in writing with the Commission. The Commission will grant such requests only where it determines that the dictates of fairness so require. In lieu of actually receiving rebuttal material, the Commission may in its discretion direct that the alleged factual assertion and the proposed rebuttal be disregarded in arriving at a decision.

    § 3008.7 Penalty for violation of ex parte communication rules.

    (a) The penalties for violation of ex parte communication rules specified in this section are applicable only to:

    (1) Nature of postal service proceedings conducted pursuant to 39 U.S.C. 3661(c);

    (2) Appeal of Postal Service decisions to close or consolidate any post office conducted pursuant to 39 U.S.C. 404(d)(5); and

    (3) Rate or service complaints conducted pursuant to 39 U.S.C. 3662.

    (b) Upon notice of a communication knowingly made or knowingly caused to be made by a participant in violation of § 3008.5(a), the Commission or presiding officer may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the participant to show cause why his/her claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

    (c) The Commission may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the Commission, consider a violation of § 3008.5(a) sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.

    By the Commission.

    Stacy L. Ruble, Secretary.
    [FR Doc. 2016-15349 Filed 6-29-16; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 Standards of Performance for New Stationary Sources CFR Correction

    In Title 40 of the Code of Federal Regulations, Part 60 (§ 60.1 to end of part 60 sections), revised as of July 1, 2015, make the following corrections:

    1. Reinstate the symbol < in the following places: a. On page 85, in § 60.13, paragraph (h)(2)(viii), before the term “30 minutes”; b. On page 667, in § 60.562-1, paragraph (a)(1)(ii) table 3, in row 1., in the second column, after “0.10” and before “5.5”; c. On page 667, in § 60.562-1, paragraph (a)(1)(ii) table 3, in row 3., in the second column, after “5.5” and before “20”; d. On page 706, in § 60.614, (f)(2) table 2, in the first column, in the first two entries, after “HT”; e. On page 719, in § 60.643, paragraph (a)(1)(ii), after “R”; f. On page 734, in § 60.664, paragraph (f)(2) table 2, in the first column, in the first two entries, after “HT”; g. On page 1208, in § 60.5410, paragraph (g)(1)(ii), after “R”; h. On page 1222, in § 60.5415, paragraph (g)(1)(ii), after “R”. 2. Reinstate the symbol ≤, in the following places: a. On page 501, in § 60.332, paragraph (a)(4), in the first row of the table, after “N” and before “.015”, b. On pages 1111-1112, in table 1 to subpart KKKK, in the second column, before the number “50” in the first, second, fifth, sixth, and ninth entries; c. On pages 1111-1112, in table 1 to subpart KKKK, in the second column, before the number “850” in the third, seventh, tenth and eleventh entries' d. On pages 1111-1112, in table 1 to subpart KKKK, in the second column, before the number “30” in the twelfth entry. ER30JN16.041 a. On page 649, in § 60.543, paragraph (f)(2)(iv)(I), after “(n” and before “3)”; b. On page 706, in § 60.614, (f)(2) table 2, in the first column, in the third and fourth entries, after “HT”; c. On page 719, in § 60.643, paragraph (a)(1)(i), after “R”; d. On page 734, in § 60.664, paragraph (f)(2) table 2, in the first column, in the third and fourth entries, after “HT”; e. On page 1208, in § 60.5410, paragraph (g)(1)(i), after “R”; f. On page 1222, in § 60.5415, paragraph (g)(1)(i), after “R”. 4. Reinstate the symbol > in the following places: a. On pages 1111-1112, in table 1 to subpart KKKK, in the second column, before the number “50” in the third, seventh, tenth, and eleventh entries; b. On pages 1111-1112, in table 1 to subpart KKKK, in the second column, before the number “850” in the fourth and eighth entries; c. On pages 1112, in table 1 to subpart KKKK, in the second column, before the number “30” in the thirteenth entry.
    [FR Doc. 2016-15707 Filed 6-29-16; 8:45 am] BILLING CODE 1505-01-D
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0183; FRL-9947-45] Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate); Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes exemptions from the requirement of a tolerance for residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) (CAS Reg. No. 6683-19-8) under 40 CFR 180.910 and 180.930 when used as an inert ingredient (antioxidant/stabilizer) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest at a maximum concentration of 5% by weight in the formulation and applied to animals at a maximum concentration of 3% by weight in the formulation, respectively. BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of these exemptions from the requirement of a tolerance. These regulations eliminate the need to establish a maximum permissible level for residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) for these uses.

    DATES:

    This regulation is effective June 30, 2016. Objections and requests for hearings must be received on or before August 29, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0183, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0183 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 29, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0183, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10829) by BASF Corporation, 100 Park Avenue, Florham Park, NJ 07932. The petition requested that 40 CFR 180.910 and 180.930 be amended by establishing an exemption from the requirement of a tolerance for residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) (CAS Reg. No. 6683-19-8) when used as an inert ingredient antioxidant/stabilizer in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910 at a maximum concentration of 5% by weight in the formulation; and applied to animals under 40 CFR 180.930 at a maximum concentration of 3% by weight in the formulation. That document referenced a summary of the petition prepared by Lewis & Harrison LLC on behalf of BASF Corporation, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) has low acute toxicity via the oral, dermal, and inhalation routes of exposure. Pentaerythritol tetrakis 3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is not irritating to the eyes and the skin. It is not a dermal sensitizer. In a subchronic study in dogs and a subchronic study in rats, effects were limited to decreases in body weight gain, food consumption, and thyroid weights in rats. No fetal toxicity was reported in developmental toxicity study in the rat. In a developmental toxicity study with mice, incompletely ossified sternebrae in the high-dose group was observed in the absence of maternal toxicity. In a rat 2-generation reproduction study, no adverse effects were observed at doses up to 1,000 milligrams/kilogram/day (mg/kg/day). There was no evidence of carcinogenic potential in a rat chronic toxicity/carcinogenicity study. Specific information on the studies received and the nature of the adverse effects caused by pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document “Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl) propionate) (CAS Reg. No. 6683-19-8).

    Human Health Risk Assessment and Ecological Effects Assessment to Support

    A Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient” at pages 10-15 in docket ID number EPA-HQ-OPP-2016-018.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    Based on the results of the available safety studies for pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate, the reference dose (RfD) for repeated oral, dermal, and inhalation exposures to pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate is 1.35 mg/kg/day. The key study for deriving the RfD is the chronic toxicity study in rats. The NOAEL for in this study is 135 mg/kg/day based on decreases in body weight gain, food consumption, and thyroid weights in males at the LOAEL of 446 mg/kg/day. Applying an uncertainty factor of 100 for extrapolation from animal to human (interspecies variation) and potential variation in sensitivity among members of the human population (intraspecies sensitivity) results in the RfD of 1.35 mg/kg/day. The Food Quality Protection Act (FQPA) (Pub. L. 104-170) safety factor for pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate is 1X. The resultant population adjusted dose (PAD) is 1.35 mg/kg/day. The margin of exposure (MOE) for residential exposure is 100 or greater and is based upon the NOAEL derived from the chronic oral toxicity study in rats (135 mg/kg/day) with an assumption of 10% dermal absorption (based on molecular weight and octanol-water partition coefficient) and inhalation toxicity being equivalent oral toxicity.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate), EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) in food as follows:

    An acute dietary risk assessment was not conducted because no endpoint of concern following a single exposure was identified in the available studies. A chronic dietary exposure assessment was completed and performed using the Dietary Exposure Evaluation Model DEEM-FCIDTM, Version 3.16, EPA used food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What we eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, no residue data were submitted for pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate). In the absence of actual residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. In the absence of actual residue data, the inert ingredient evaluation is based on a highly conservative model which assumes that the residue level of the inert ingredient would be no higher than the highest established tolerance for an active ingredient on a given commodity. Implicit in this assumption is that there would be similar rates of degradation between the active and inert ingredient (if any) and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient. The model assumes 100 percent crop treated (PCT) for all crops and that every food eaten by a person each day has tolerance-level residues. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts.” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

    In the case of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) EPA made specific adjustments to the dietary exposure assessment to account for the use limitations of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) as an inert ingredient in pesticide formulations applied to growing crops and raw agricultural commodities after harvest at a maximum concentration of % by weight in the pesticide formulation and as an inert ingredient in pesticide formulations applied to animals at a maximum concentration of 3% by weight in the pesticide formulation. Preharvest uses.

    2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate), a conservative drinking water concentration value of 100 ppb based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Based on the requested use of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate), the Agency does not expect non-occupational, non-dietary exposures. However, once approved, there is a potential for residential exposure from use as an inert ingredient in pesticide formulations used in residential settings. These residential exposures could occur by ingestion of materials to which pesticides containing of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate have been applied as well as dermal and inhalation exposures through the use of such products. These residential pesticide exposures are considered short-term and intermediate-term in nature.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) to share a common mechanism of toxicity with any other substances, and pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. Fetal susceptibility was not observed in the developmental toxicity study in mice. In a developmental toxicity study with rats, fetal effects (decreased ossification of the sternebrae) were observed without accompanying maternal toxicity at the high dose group of 500 mg/kg/day. There are no concerns for reproductive toxicity (no effects at up to the limit dose of 1,000 mg/kg/day were observed in a 2-generation reproductive toxicity study in rats).

    3. Conclusion. EPA has determined that reliable data show the safety of infant and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for pentaerythritol tetrakis(3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) includes a subchronic toxicity study, two developmental toxicity studies, a reproductive toxicity study, chronic/carcinogenicity studies, and several mutagenicity studies. No parental or offspring effects were observed in a 2-generation reproductive toxicity study in rats at dose levels up to 500 mg/kg/day, the highest dose tested. In a developmental study in mice, no fetal or maternal effects were observed at doses up to 1,000 mg/kg/day. In a developmental toxicity study in rats no maternal effects were observed at 500 mg/kg/day, the highest dose tested, however, fetal effects were observed, albeit only in the high dose test group of 500 mg/kg/day. Since a clear NOAEL (150 mg/kg/day) for fetal effects was established in this study, no effects are observed in the mice developmental and rat reproductive toxicity study, and the selected point of departure for risk assessment purposes is based on dose levels below which effects are seen in the rat developmental toxicity study, there is no need for an additional UF to account for fetal susceptibility.

    ii. There is no indication that pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is a neurotoxic chemical. Although no neurotoxicity studies were available in the database, no clinical signs of neurotoxicity were observed in the available subchronic and chronic studies. Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no indication that pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is an immunotoxic chemical. Although no immunotoxicity studies were available in the database, no signs of immunotoxicity were observed in the available studies. Therefore, there is no need for an immunotoxicity study or additional UFs to account for immunotoxicity.

    iv. The dietary food exposure assessment utilizes 100% crop treated information for all commodities. By using these screening-level assessments, chronic exposures/risks will not be underestimated. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate).

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) from food and water will utilize 26% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure based on the explanation in this unit, regarding residential use patterns, chronic residential exposure to residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is not expected.

    3. Short-term aggregate risk. A short-term aggregate risk assessment takes into account exposure estimates from chronic dietary consumption of food and drinking water; and short-term residential exposure. Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) may be used as an inert ingredient in pesticide products that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. The Agency has concluded that the aggregate short-term MOEs for adult and children are above 100. Therefore there is no concern for short-term aggregate risk.

    4. Intermediate-term aggregate risk. An intermediate-term aggregate risk assessment takes into account exposure estimates from chronic dietary consumption of food and drinking water; and intermediate- term residential exposure. Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) may be used as an inert ingredient in pesticide products that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. The Agency has concluded that the aggregate intermediate-term MOEs for adult and children are above 100. Therefore there is no concern for intermediate term aggregate risk.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in an adequate rodent carcinogenicity studies, pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) residues.

    V. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) in or on any food commodities. EPA is establishing a limitation on the amount of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) that may be used in pesticide formulations applied to growing crops, raw agricultural commodities after harvest, and animals. Those limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide product applied to growing crops and raw agricultural commodities after harvest that contains pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) a concentration of more 5% by weight in the formulation; or any pesticide product applied applied to animals that contains pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) a concentration of more than 3% by weight in the formulation.

    VI. Conclusions

    Therefore, exemptions from the requirement of a tolerance are established for residues of pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) (CAS Reg. No. 6683-19-8) when used as an inert ingredient (antioxidant, stabilizer) in pesticide products as follows: under 40 CFR 180.910, at a concentration not to exceed 5% by weight of the formulation in pesticide formulations applied to growing crops and raw agricultural commodities and under 40 CFR 180.930 at a concentration not to exceed 3% by weight of the formulation in pesticide formulations applied to animals.

    VII. Statutory and Executive Order Reviews

    This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: June 13, 2016. Daniel J. Rosenblatt, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.910, add alphabetically the inert ingredient to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) (CAS Reg. No. 6683-19-8) Not to exceed 5% by weight of the pesticide formulation Antioxidant, stabilizer. *         *         *         *         *         *         *
    3. In § 180.930, add alphabetically the inert ingredient to the table to read as follows:
    § 180.930 Inert ingredients applied to animals; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Pentaerythritol tetrakis (3-(3,5-di-tert-butyl-4-hydroxyphenyl)propionate) (CAS Reg. No. 6683-19-8) Not to exceed 3% by weight of the pesticide formulation Antioxidant, stabilizer. *         *         *         *         *         *         *
    [FR Doc. 2016-15613 Filed 6-29-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 416, 482, and 483 [CMS-3277-CN] RIN 0938-AR72 Medicare and Medicaid Programs; Fire Safety Requirements for Certain Health Care Facilities; Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final rule; correction.

    SUMMARY:

    This document corrects technical errors that appeared in the final rule published in the Federal Register on May 4, 2016, entitled “Medicare and Medicaid Programs; Fire Safety Requirements for Certain Health Care Facilities.”

    DATES:

    This correction is effective July 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Shifflett, (410) 786-4133.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2016-10043 of May 4, 2016 (81 FR 26871), there were technical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction document are effective as if they had been included in the document published May 4, 2016. Accordingly, the corrections are effective July 5, 2016.

    II. Summary of Errors in Regulations Text

    On page 26897, at § 416.44(b)(1), we inadvertently omitted a portion of the sentence. We are correcting this sentence to read, “. . . the ASC must meet the provisions applicable to Ambulatory Health Care Occupancies, regardless of the number of patients served[.]”.

    On page 26899, at § 482.41(b)(1)(i), we inadvertently omitted a sentence. We are correcting this error by adding a sentence to clarify that outpatient surgical departments must meet the provisions applicable to Ambulatory Health Care Occupancies, regardless of the number of patients served.

    On page 26900, at § 483.70(a)(8), we inadvertently specified an incorrect facility type. We are correcting this error to specify the requirements an LTC facility must meet when a sprinkler system is shut down for more than 10 hours.

    III. Waiver of Proposed Rulemaking and the 30-Day Delay in Effective Date

    We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

    Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived; however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued. In this case, we find that a period for comment and a delay in the effective date of publication are both unnecessary, because this correction notice merely corrects technical and typographical errors in the regulations text and makes no changes in CMS policy. For this reason, we believe we have good cause to waive the APA notice and comment period and delayed effective date.

    IV. Correction of Errors

    In FR Doc. 2016-10043 of May 4, 2016 (81 FR 26871), make the following corrections:

    § 416.44 [Corrected]
    1. On page 26897, in the first column, line 1 (§ 416.44(b)(1)), after the word “Occupancies” insert “, regardless of the number of patients served,”.
    § 482.41 [Corrected]
    2. On page 26899, in the first column; in § 482.41(b)(1)(i), add a new sentence at the end of the paragraph to read, “Outpatient surgical departments must meet the provisions applicable to Ambulatory Health Care Occupancies, regardless of the number of patients served.”
    § 483.70 [Corrected]
    3. On page 26900, in the first column; in § 483.70(a)(8) introductory text, in line 2, the word “ASC” is corrected to read “LTC facility”.
    Dated: June 22, 2016. Madhura Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2016-15460 Filed 6-29-16; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF TRANSPORTATION Maritime Administration 46 CFR Parts 221, 307, 340, and 356 RIN 2133-AB89 Civil Penalties AGENCY:

    Maritime Administration (MARAD), Department of Transportation (DOT).

    ACTION:

    Interim final rule.

    SUMMARY:

    This interim final rule updates the maximum civil penalty amounts for violations of statutes and regulations administered by MARAD pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015. This interim final rule amends our regulations to reflect the new, adjusted civil penalty amounts MARAD may assess pursuant for violations of procedures related to the American Fisheries Act, certain regulated transactions involving documented vessels, the Automated Mutual Assistance Vessel Rescue program (AMVER), and the Defense Production Act.

    DATES:

    This rule is effective August 1, 2016.

    ADDRESSES:

    Office of Chief Counsel, MAR 225, Maritime Administration, 1200 New Jersey Avenue SE., West Building, Second Floor, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    T. Mitchell Hudson, Jr., Office of Chief Counsel, MARAD, telephone (202) 366-9373, email to: [email protected], 1200 New Jersey Ave. SE., Washington, DC 20590.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvement Act (the 2015 Act), Public Law 114-74, Section 701, was signed into law. The purpose of the 2015 Act is to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires agencies to make an initial catch up adjustment to the civil monetary penalties they administer through an interim final rule and then to make subsequent annual adjustments for inflation. The amount of increase of any adjustment to a civil penalty pursuant to the 2015 Act is limited to 150 percent of the current penalty. Agencies are required to issue the interim final rule with the initial catch up adjustment by July 1, 2016.

    The method of calculating inflationary adjustments in the 2015 Act differs substantially from the methods used in past inflationary adjustment rulemakings conducted pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Public Law 101-410. Previously, adjustments to civil penalties were conducted under rules that required significant rounding of figures. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that penalties would often not be increased at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent. Over time, this formula caused penalties to lose value relative to total inflation.

    The 2015 Act has removed these rounding rules; now, penalties are simply rounded to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that penalties will be increased each year to a figure commensurate with the actual calculated inflation. Furthermore, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act, which contributed to a decline in the real value of penalty levels. To do this, the 2015 Act requires agencies to identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (i.e., originally enacted by Congress) or last adjusted by statute or regulation other than pursuant to the Inflation Adjustment Act.

    The Director of the Office of Management and Budget (OMB) provided guidance to agencies in a February 24, 2016 memorandum on how to calculate the initial adjustment required by the 2015 Act.1 The initial catch up adjustment is based on the change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress and the October 2015 CPI-U. The February 24, 2016 memorandum contains a table with a multiplier for the change in CPI-U from the year the penalty was established or last adjusted to 2015. To arrive at the adjusted penalty, the agency must multiply the penalty amount when it was established or last adjusted by Congress, excluding adjustments under the Inflation Adjustment Act, by the multiplier for the increase in CPI-U from the year the penalty was established or adjusted provided in the February 24, 2016 memorandum. The 2015 Act limits the initial inflationary adjustment to 150 percent of the current penalty. To determine whether the increase in the adjusted penalty is less than 150 percent, the agency must multiply the current penalty by 250 percent. The adjusted penalty is the lesser of either the adjusted penalty based on the multiplier for CPI-U in Table A of the February 24, 2016 memorandum or an amount equal to 250 percent of the current penalty. This interim final rule adjusts the civil penalties for violations of statutes and regulations that MARAD administers consistent with the February 24, 2016 memorandum.

    1 Memorandum from the Director of OMB to Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016), available at www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.

    II. Inflationary Adjustments to Penalty Amounts in 46 CFR Part 221 Changes to Civil Penalties for Regulated Transactions Involving Vessel Ownership Transfers and Other Maritime Interests (46 CFR 221.61)

    The maximum civil penalties arising under 46 CFR 221.61 have not been updated since they were established, except for inflationary adjustments pursuant to the Inflation Adjustment Act of 1990. The maximum civil penalty for a single violation of any provision under 46 U.S.C. Chapter 313 and all of Subtitle III related MARAD regulations, except section 31329, specified in 31309 of Title 46 of the United States Code was set at $10,000 when the penalty was established by Public Law 100-710, 102 Stat. 4747, enacted in 1988. Likewise, the maximum civil penalty for a single violation of 31329 of Title 46 of the United States Code as it relates to the court sales of documented vessels, specified in 31330 of Title 46 of the United States Code was set at $25,000 when the penalty was established by the same statute, Public Law 100-710, 102 Stat. 4747, enacted in 1988. Lastly, for penalties arising under 46 CFR 221.61, the maximum civil penalty for a single violation of 56101 of Title 46 of the United States Code as it relates to approvals required to transfer a vessel to a noncitizen, specified in 56101(e) of Title 46 United States Code was set at not more than $10,000 when the penalty was established by Public Law 101-225, 103 Stat. 1908, enacted in 1989. Applying the multiplier for the increase in CPI-U for 1988 in Table A of the February 24, 2016 memorandum (1.97869) results in an adjusted civil penalty of $19,787 pursuant to 46 U.S.C. 31309; $49,467 pursuant to 46 U.S.C. 31330. Applying the multiplier for the increase in CPI-U for 1989 (1.89361) results in an adjusted civil penalty of $18,936 pursuant to section 56101(e).

    Inflationary Adjustments to Penalty Amounts in 46 CFR Part 307 Changes to Civil Penalties for Failure To File an AMVER Report (46 CFR 307.19)

    The maximum civil penalty for a single violation of 50113 of Title 46 of the United States Code related to use and performance reports by operators of vessels as specified in 50113(b) of Title 46 of the United States Code was set at $50.00 per day when the penalty was established by Public Law 84-612, 70 Stat. 332, enacted in 1956. This civil penalty has not been updated since it was established. Applying the multiplier for the increase in CPI-U for 1956 in Table A of the February 24, 2016 memorandum (8.64865) would result in an adjusted civil penalty of $432.433, which is more than the limitation on inflationary adjustments of 150 percent, accordingly the adjusted civil penalty is $125.00, which is 150 percent of the previously penalty amount not counting updates made under the Inflation Adjustment Act.

    Inflationary Adjustments to Penalty Amounts in 46 CFR Part 340 Changes to Civil Penalties for Violating Procedures for the Use and Allocation of Shipping Services, Port Facilities and Services for National Security and National Defense Operations (46 CFR 340.9)

    The maximum civil penalty for a single violation of 4501 of Title 50 of the United States Code, specified in 4513 of Title 50 of the United States Code, at 46 CFR 340.9, was set at not more than $10,000 when the penalty was established by the Defense Production Act, 64 Stat. 799, enacted in 1950. This civil penalty has not been updated since it was established. Applying the multiplier for the increase in CPI-U for 1950 in Table A of the February 24, 2016 memorandum (9.66821) would result in an adjusted civil penalty of $96682.1, which is above the 150 percent limit for inflationary adjustments, so the adjusted civil penalty is $25,000, which is 150 percent of the previous penalty amount not counting updates under the Inflation Adjustment Act.

    Inflationary Adjustments to Penalty Amounts in 46 CFR Part 356 Changes to Civil Penalties for Violations in Applying For or Renewing a Vessel's Fishery Endorsement (46 CFR 356.49)

    The maximum civil penalty for a single violation of 12151 of Title 46 of the United States Code for engaging in fishing operations as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act, within the Exclusive Economic Zone, specified in 12151(c) of Title 46 of the United States Code, and at 46 CFR 356.49, was set at $100,000.00 for each day such vessel engaged in fishing when the penalty was established by Public Law 105-277, 112 Stat. 2681-620, enacted in 1998. This civil penalty has not been updated since it was established. Applying the multiplier for the increase in CPI-U for 1998 in Table A of the February 24, 2016 memorandum (1.45023) results in an adjusted civil penalty of $145,023.

    III. Dispensing With Notice and Public Comment

    MARAD is promulgating this interim final rule to ensure that the amount of civil penalties contained in 46 CFR 221.61, 307.19, 340.9 and 356.49—reflect the statutorily mandated ranges as adjusted for inflation. Pursuant to the 2015 Act, MARAD is required to promulgate a “catch-up adjustment” through an interim final rule. Pursuant to the 2015 Act and 5 U.S.C. 553(b)(3)(B), MARAD finds that good cause exists for immediate implementation of this interim final rule without prior notice and comment because it would be impracticable to delay publication of this rule for notice and comment and because public comment is unnecessary. By operation of the Act, MARAD must publish the catch-up adjustment by interim final rule by July 1, 2016. Additionally, the 2015 Act provides a clear formula for adjustment of the civil penalties, leaving the agency little room for discretion. Furthermore, the increases in MARAD's civil penalty authority authorized by 46 U.S.C. 12151(c), 31309, 31330, 50113(b), 56101(e) and 50 U.S.C. 4513 are already in effect and the amendments merely update the relevant regulations to reflect the new statutory civil penalty. For these reasons, MARAD finds that notice and comment would be impracticable and is unnecessary in this situation.

    IV. Rulemaking Analyses and Notices Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    MARAD has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866 or Executive Order 13563. This action is limited to the adoption of adjustments of civil penalties under statutes that the agency enforces, and has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures and the policies of the Office of Management and Budget. Because this rulemaking does not change the number of entities that are subject to civil penalties, the impacts are limited. Furthermore, excluding the penalties in 46 CFR 221.61, 307.19, 340.9 and 356.49 for violating certain long standing procedures, this final rule does not establish civil penalty amounts that MARAD is required to seek.

    We also do not expect the increase in the civil penalty amount in any of these regulations to be economically significant. Over the last five years, MARAD has not collected any civil penalties under these regulations. Increasing the current civil penalty amount by 150 percent would not result in an annual effect on the economy of $100 million or more.

    Regulatory Flexibility Act

    We have also considered the impacts of this notice under the Regulatory Flexibility Act. I certify that this rule will not have a significant economic impact on a substantial number of small entities. Since this regulation does not establish a penalty amount that MARAD is required to seek, except for the long standing civil penalties set forth in 46 CFR 221.61, 307.19, 340.9 and 356.49, this rule will not have a significant economic impact on small businesses. Additionally, over the last five years, MARAD has not collected any civil penalties under these regulations. Accordingly, increasingly the civil penalty amount is unlikely to have any economic impact on any small businesses.

    In addition, MARAD has determined the RFA does not apply to this rulemaking. The 2015 Inflation Act requires MARAD to publish an interim final rule and does not require MARAD to complete notice and comment procedures under the APA. The Small Business Administration's A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act (2012), provides that:

    If, under the APA or any rule of general applicability governing federal grants to state and local governments, the agency is required to publish a general notice of proposed rulemaking (NPRM), the RFA must be considered [citing 5 U.S.C. 604(a)]. . . . If an NPRM is not required, the RFA does not apply.

    Therefore, because the 2015 Inflation Act does not require an NPRM for this rulemaking, the RFA does not apply.

    Executive Order 13132 (Federalism)

    Executive Order 13132 requires MARAD to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation.

    This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule only updates existing penalties, pursuant to statute. MARAD has not collected any civil penalties under these regulations within the last five years and if it were to assess penalties, due to the amounts involved, it would not have a substantial direct effect on a State. Thus, the requirements of Section 6 of the Executive Order do not apply.

    Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this rule will not have a $100 million effect, no Unfunded Mandates assessment will be prepared.

    Executive Order 12778 (Civil Justice Reform)

    This rule does not have a retroactive or preemptive effect. Judicial review of a rule based on this proposal may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980, we state that there are no requirements for information collection associated with this rulemaking action.

    Privacy Act

    Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov.

    List of Subjects 46 CFR Part 221

    Regulated Transactions Involving Documented Vessels and Other Maritime Interests.

    46 CFR Part 307

    Establishment of Mandatory Position Reporting System for Vessels.

    46 CFR Part 340

    Priority Use and Allocation of Shipping Services, Containers and Chassis, and Port Facilities and Services for National Security and National Defense Related Operations.

    46 CFR Part 356

    Requirements for Vessels of 100 Feet or Greater in Registered Length to Obtain a Fishery Endorsement to the Vessel's Documentation.

    In consideration of the foregoing, 46 CFR parts 221, 307, 340, and 356 are amended as set forth below.

    PART 221—REGULATED TRANSACTIONS INVOLVING DOCUMENTED VESSELS AND OTHER MARITIME INTERESTS 1. The authority citation for 46 CFR part 221 is revised to read as follows: Authority:

    46 U.S.C. chs. 301, 313, and 561; Pub. L. 114-74; 49 CFR 1.93.

    2. Section 221.61 is revised to read as follows:
    § 221.61 Compliance.

    (a) This subpart describes procedures for the administration of civil penalties that the Maritime Administration may assess under 46 U.S.C. 31309, 31330 and 56101, pursuant to 49 U.S.C. 336.

    (b) Pursuant to 46 U.S.C. 31309, a general penalty of not more than $19,787 may be assessed for each violation of chapter 313 or 46 U.S.C. subtitle III administered by the Maritime Administration, and the regulations in this part that are promulgated thereunder, except that a person violating 46 U.S.C. 31329 and the regulations promulgated thereunder is liable for a civil penalty of not more than $49,467 for each violation. A person that charters, sells, transfers or mortgages a vessel, or an interest therein, in violation of 46 U.S.C. 56101(e) is liable for a civil penalty of not more than $18,936 for each violation.

    PART 307—ESTABLISHMENT OF MANDATORY POSITION REPORTING SYSTEM FOR VESSELS 3. The authority citation for 46 CFR part 307 is revised to read as follows: Authority:

    Pub. L. 109-304; 46 U.S.C. 50113; Pub. L. 114-74; 49 CFR 1.93.

    4. Section 307.19 is revised to read as follows:
    § 307.19 Penalties.

    The owner or operator of a vessel in the waterborne foreign commerce of the United States is subject to a penalty of $125.00 for each day of failure to file an AMVER report required by this part. Such penalty shall constitute a lien upon the vessel, and such vessel may be libeled in the district court of the United States in which the vessel may be found.

    PART 340—PRIORITY USE AND ALLOCATION OF SHIPPING SERVICES, CONTAINERS AND CHASSIS, AND PORT FACILITIES AND SERVICES FOR NATIONAL SECURITY AND NATIONAL DEFENSE RELATED OPERATIONS 5. The authority citation for 46 CFR part 340 is revised to read as follows: Authority:

    50 U.S.C. 4501 et seq. (“The Defense Production Act”); Executive Order 13603 (77 FR 16651); Executive Order 12656 (53 FR 47491); Pub. L. 114-74; 49 CFR 1.45; 49 CFR 1.93(l).

    6. Section 340.9 is revised to read as follows:
    § 340.9 Compliance.

    Pursuant 50 U.S.C. 4513 any person who willfully performs any act prohibited, or willfully fails to perform any act required, by the provisions of this regulation shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than one year, or both.

    PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION 6. The authority citation for 46 CFR part 356 is revised to read as follows: Authority:

    46 U.S.C. 12102; 46 U.S.C. 12151; 46 U.S.C. 31322; Pub. L. 105-277, division C, title II, subtitle I, section 203 (46 U.S.C. 12102 note), section 210(e), and section 213(g), 112 Stat. 2681; Pub. L. 107-20, section 2202, 115 Stat. 168-170; Pub. L. 114-74; 49 CFR 1.93.

    7. In § 356.49, revise paragraph (b) to read as follows:
    § Penalties.

    (b) A fine of up to $145,023 may be assessed against the vessel owner for each day in which such vessel has engaged in fishing (as such term is defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802) within the exclusive economic zone of the United States; and

    Dated: June 27, 2016.

    By Order of the Maritime Administrator.

    Gabriel Chavez, Secretary, Maritime Administration.
    [FR Doc. 2016-15566 Filed 6-29-16; 8:45 am] BILLING CODE 4910-81-P
    FEDERAL MARITIME COMMISSION 46 CFR Part 506 [Docket No. 16-13] RIN 3072-AC63 Inflation Adjustment of Civil Monetary Penalties AGENCY:

    Federal Maritime Commission.

    ACTION:

    Interim final rule.

    SUMMARY:

    This rule implements the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (Sec. 701 of Pub. L. 11-74). The rule adjusts the maximum amount of each statutory civil penalty subject to Federal Maritime Commission (Commission) jurisdiction for inflation, in accordance with the requirements of that Act. The 2015 Act requires that agencies publish a catch-up adjustment in the penalties in an interim rule by July 1, 2016, and that agencies adjust penalties yearly thereafter.

    DATES:

    This rule is effective on August 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Tyler Wood, General Counsel, Federal Maritime Commission, 800 North Capitol Street NW., Room 1018, Washington, DC 20573, (202) 523-5740.

    SUPPLEMENTARY INFORMATION:

    This rule implements the 2015 Act, which became effective on November 2, 2015. The 2015 Act further amends the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, 104 Stat. 890 (codified as amended at 28 U.S.C. 2461 note), in order to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, Title III, 31001(s)(1), 110 Stat. 1321-373, originally amended the FCPIAA and required the head of each executive agency to adopt regulations that adjust the maximum civil monetary penalties (CMPs) assessable under its agency's jurisdiction at least every four years to ensure that they continued to maintain their deterrent value.1 In accordance with the DCIA, the Commission established Part 506 in 1996 and adjusted its penalties.2 The Commission further adjusted its civil penalty amounts in 2000, 2009, and 2014.3

    1 Increased CMPs are applicable only to violations occurring after the increase takes effect.

    2 61 FR 52704 (Oct. 8, 1996).

    3 65 FR 49741 (Aug. 15, 2000); 74 FR 38114 (July 28, 2009); 79 FR 37662 (July 2, 2014).

    The 2015 Act requires that agencies publish a catch-up adjustment in the penalties in an interim rule by July 1, 2016, to become effective no later than August 1, 2016. Following the catch-up adjustment, the 2015 Act requires agencies to adjust CMPs under their jurisdiction annually beginning in 2017 based on changes in the consumer price index using data from October in the previous calendar year.

    In order to catch-up CMPs, the 2015 Act requires agencies to identify the year the civil penalty was established or last adjusted by statute or regulation other than pursuant to the FCPIAA.4 Catch-up adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) 5 for the month of October of the year in which the CMP was established or adjusted (other than through Inflation Adjustment Act adjustments), and the October 2015 CPI-U. In accordance with the 2015 Act, the Office of Management and Budget (OMB) has issued guidance to agencies on implementing the catch-up adjustments and provided multipliers for agencies to use depending on the year a civil penalty was established or adjusted (other than inflation adjustments). Agencies look at the multiplier corresponding to that year in a table provided by OMB.6 Next, agencies multiply the amount of the penalty (not adjusted for inflation) by the amount in the table.7 Under the 2015 Act, however, the catch-up increase cannot exceed 150% of the amount that was effective on November 2, 2015.8

    4 5(b)(2); Memorandum for the Heads of Executive Departments and Agencies for the Implementation of the Federal Civil Penalties Inflation Adjustment Act, M-16-06, at 4, February 24, 2016 (OMB Guidance Memo).

    5 3(3).

    6Id.

    7Id. The amount of the catch-up penalty cannot exceed 250% of the amount that was effective on November 2, 2015 which would be $112,500 for a violation of Section 13.

    8 The 150 percent limitation in the 2015 Act is on the amount of the increase. The actual adjusted penalty levels, however are capped at 250 percent of the levels in effect on November 2, 2015. M-16-06, OMB guidance memo, at 3; also at 5(b)(2)(C).

    For example, Section 13 of the Shipping Act of 1984 (1984 Act), 46 U.S.C. 41107, imposes a maximum $45,000 penalty for a knowing and willful violation of the 1984 Act.9 The penalty was established in 1984 for an amount of $25,000 and has only been adjusted pursuant to the FCPIAA since then. As a result, the Commission multiplied $25,000 by 2.25867 (the multiplier provided by OMB for 1984) to obtain an adjusted CMP of $55,467.

    9 The Commission last adjusted its civil penalties pursuant to FCPIAA in 2014.

    The last time the Commission adjusted its CMP not pursuant to FCPIAA varies depending on the penalty.10 Accordingly, the Commission has looked at the multiplier in the table OMB provided to determine the appropriate adjustment for its civil penalties. In order to provide some clarity, the table below shows the non-inflation-adjusted penalty, the year it was established or adjusted (other than under the FCPIAA), the multiplier provided by OMB, and the result of applying the multiplier (rounded to the nearest dollar per the statute). The table also shows 250% of the amount of the penalty in November 2015 (2015 Act Cap). The new adjusted maximum penalty is the lesser of (1) the amount using the multiplier and (2) 250% of the amount of the penalty in November 2015.

    10 Current CMPs at the Commission have been effective since July 11, 2014. 79 FR 37662 (July 2, 2014).

    U.S.C. Section Non-inflation-
  • adjusted
  • penalty
  • Year Multiplier Multiplier
  • result
  • 2015 Act cap
  • (250% of 11/2/15 Amount)
  • New adjusted maximum
  • penalty
  • amount
  • 46 U.S.C. 42304 1,000,000 1988 1.97869 1,978,690 4,000,000 1,978,690 46 U.S.C. 41107(a) 25,000 1984 2.25867 56,467 112,500 56,467 46 U.S.C. 41107(b) 5,000 1984 2.25867 11,293 22,500 11,293 46 U.S.C. 41108(b) 50,000 1984 2.25867 112,934 200,000 112,934 46 U.S.C. 42104 5,000 1990 1.78156 8,908 22,500 8,908 46 U.S.C. 42106 1,000,000 1990 1.78156 1,781,560 4,000,000 1,781,560 46 U.S.C. 42108 50,000 1990 1.78156 89,078 200,000 89,078 46 U.S.C. 44102 5,000
  • 200
  • 1966 7.22912 36,146
  • 1,446
  • 22,500
  • 750
  • 22,500
  • 750
  • 46 U.S.C. 44103 5,000
  • 200
  • 1966 7.22912 36,146
  • 1,446
  • 22,500
  • 750
  • 22,500
  • 750
  • 31 U.S.C. 3802(a)(1) 5,000 1986 2.15628 10,781 22,500 10,781 31 U.S.C. 3802(a)(2) 5,000 1986 2.15628 10,781 22,500 10,781

    The new formula may result in a lower penalty than the current penalty. The catch-up penalty for 46 U.S.C. 42104 of $8,908, is actually lower than the current penalty of $9,000. This results from two things: (1) the lack of a specific penalty for a violation of 46 U.S.C. 42104 until 1990; and (2) using a multiplier based on the year the penalty was established or modified that excludes adjustments due to the FCPIAA. The later a penalty was established that excludes adjustments due to the FCPIAA, the smaller the multiplier. In this example, the latest penalty amount that excludes adjustments due to the FCPIAA for violating 46 U.S.C. 42104 is $5,000, established in 1990. The $5,000 penalty, therefore, is multiplied by 1.78156 percent to get the adjusted penalty of $8,908.

    In contrast, the oldest non-FCPIAA penalty for violating 46 U.S.C. 44103 was established in 1966 in the amount of $5,000. Accordingly, using the required table, such amount is multiplied by 7.22912 percent to get the adjusted penalty of $22,500.

    The 2015 Act also requires that agencies round up any increases in civil monetary penalties by a dollar regardless of the amount of the penalty, which differs from the prior rounding system that was based on the amount of a penalty. The penalty in 46 U.S.C. 42104 was between $1,000 and $10,000, and increases were therefore rounded to the nearest $1,000 (often the next highest $1,000), resulting in higher adjusted amounts.11

    11See 46 CFR 506.4.

    The Commission is also making a number of changes to other sections in part 506 to reflect the amendments made by the 2015 Act, including the frequency and calculation of future increases, how increases are rounded, and when they apply.

    This interim final rule is issued without prior public notice or opportunity for public comment. Under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), a final rule may be issued without notice and comment if the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. In this instance, the Commission finds, for good cause, that solicitation of public comment on this final rule is unnecessary and impractical.

    Specifically, Congress has mandated that the agency make the catch-up inflation adjustments through an interim final rule, and agencies are not required to conduct notice and comment prior to promulgation. The Commission, under the FCPIAA as amended by the 2015 Act, is required to make the adjustment to the civil monetary penalties according to a formula specified in the statute. The regulation requires ministerial, technical computations that are noncontroversial.

    The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Commission has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply and no regulatory flexibility analysis was prepared.

    The rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995, as amended. Therefore, Office of Management and Budget review is not required.

    This regulatory action is not a major rule as defined under 5 U.S.C. 804(2).

    List of Subjects in 46 CFR Part 506

    Administrative practice and procedure, Penalties.

    For the reasons stated in the preamble, Part 506 of title 46 of the Code of Federal Regulations is amended as follows:

    PART 506—CIVIL MONETARY PENALTY INFLATION ADJUSTMENT 1. The authority citation for part 506 continues to read as follows: Authority:

    28 U.S.C. 2461.

    2. Revise § 506.1 to read as follows:
    § 506.1 Scope and purpose.

    The purpose of this part is to establish a mechanism for the regular adjustment for inflation of monetary penalties and to adjust such penalties in conformity with the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2641 note) as originally amended by the Debt Collection Improvement Act of 1996, Public Law 104-134, April 26, 1996, and currently amended by the Federal Civil Penalties Inflation Act Adjustment Improvements Act of 2015, Public Law 114-74, in order to maintain the deterrent effect of civil monetary penalties and to promote compliance with the law.

    3. In § 506.3, revise the introductory text to read as follows:
    § 506.3 Civil monetary penalty inflation adjustment.

    The Commission shall, not later than August 1, 2016, and at least every year thereafter—

    4. Revise § 506.4 to read as follows:
    § 506.4 Cost of living adjustments of civil monetary penalties.

    (a) The inflation adjustment under § 506.3 will initially be determined by increasing the maximum civil monetary penalty for each civil monetary penalty by the initial cost-of-living adjustment. The inflation adjustment will subsequently be determined by increasing the maximum civil monetary penalty for each civil monetary penalty by the cost-of-living adjustment. Any increase determined under this section shall be rounded to the nearest multiple of $1.

    (b) Inflation adjustment. For purposes of paragraph (a) of this section, the term `cost-of-living adjustment' means the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of October preceding the adjustment exceeds the Consumer Price Index for the month of October 1 year before the month of October preceding the adjustment.

    (c) Initial adjustment. For purposes of paragraph (a) of this section, the term `initial cost-of-living-adjustment' means the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of October, 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of such civil monetary penalty was established or adjusted under a provision of law of civil monetary penalty. The initial cost-of-living adjustment may not exceed 150 percent of such penalty on November 2, 2015, the date of the enactment of the Federal Civil Penalties Inflation Act Adjustment Improvements Act of 2015.

    (d) Inflation adjustment. Maximum Civil Monetary Penalties within the jurisdiction of the Federal Maritime Commission are adjusted for inflation as follows:

    United States Code Citation Civil monetary penalty description Maximum
  • penalty amount prior to August 1, 2016
  • New adjusted maximum
  • penalty amount as of August 1, 2016
  • 46 U.S.C. 42304 Adverse impact on U.S. carriers by foreign shipping practices 1,600,000 1,978,690 46 U.S.C. 41107(a) Knowing and Willful violation/Shipping Act of 1984, or Commission regulation or order 45,000 56,467 46 U.S.C. 41107(b) Violation of Shipping Act of 1984, Commission regulation or order, not knowing and willful 9,000 11,293 46 U.S.C. 41108(b) Operating in foreign commerce after tariff suspension 80,000 112,934 46 U.S.C. 42104 Failure to provide required reports, etc./Merchant Marine Act of 1920 9,000 8,908 46 U.S.C. 42106 Adverse shipping conditions/Merchant Marine Act of 1920 1,600,000 1,781,560 46 U.S.C. 42108 Operating after tariff or service contract suspension/Merchant Marine Act of 1920 80,000 89,078 46 U.S.C. 44102 Failure to establish financial responsibility for non-performance of transportation 9,000
  • 300
  • 22,500
  • 750
  • 46 U.S.C. 44103 Failure to establish financial responsibility for death or injury 9,000
  • 300
  • 22,500
  • 750
  • 31 U.S.C. 3802(a)(1) Program Fraud Civil Remedies Act/makes false claim 9,000 10,781 31 U.S.C. 3802(a)(2) Program Fraud Civil Remedies Act/giving false statement 9,000 10,781
    5. Revise § 506.5 to read as follows:
    § 506.5 Application of increase to violations.

    Any adjustment in a civil monetary penalty under this part shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the adjustment takes effect.

    By the Commission.

    Rachel E. Dickon, Assistant Secretary.
    [FR Doc. 2016-15569 Filed 6-29-16; 8:45 am] BILLING CODE 6731-AA-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [DA 16-644] Adjustment of Civil Monetary Penalties To Reflect Inflation AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Inflation Adjustment Act) requires the Federal Communications Commission to amend its forfeiture penalty rules for inflation.

    DATES:

    This rule is effective August 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Donna Cyrus, Enforcement Bureau, 202-418-7325.

    SUPPLEMENTARY INFORMATION:

    On June 9, 2016, the Enforcement Bureau of the Federal Communications Commission adopted and released an order on delegated authority, DA 16-644, which adjusts the Commission's forfeiture penalties for inflation. On November 2, 2015, the President signed into law the Bipartisan Budget Act of 2015, which included, as Section 701 thereto, the 2015 Inflation Adjustment Act, which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), to improve the effectiveness of civil monetary penalties and maintain their deterrent effect. Under the act, federal agencies, including the Federal Communications Commission, must issue an interim final rulemaking and publish interim final rules by July 1, 2016, which will take effect by August 1, 2016. According to the 2015 Inflation Adjustment Act, the initial inflation adjustment will be the percentage by which the Consumer Price Index (CPI) for the month of October 2015 exceeds the CPI for the month of October of the calendar year during which the civil monetary penalty “was established or adjusted under a provision of law other than this Act.” The 2015 Inflation Adjustment Act requires the Director of the Office of Management and Budget (OMB) to issue, guidance to agencies on implementing the Act. OMB issued that guidance on February 24, 2016, and this Order follows that guidance. Pursuant to the 2015 Inflation Adjustment Act, we update the civil monetary penalties set forth in the Communications Act of 1934, as amended (Communications Act or Act), to reflect an “inflation adjustment” that derives from the “cost-of-living adjustment.” The cost-of-living adjustment reflects the total inflation that has taken place in the years since the penalties were last set or adjusted by statute or rule.

    This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

    The Commission will not send a copy of this Order per the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the rules are amended only to account for inflation and do not substantially affect the rights or obligations of non-agency parties.

    List of Subjects

    Administrative practice and procedure, Penalties.

    Federal Communications Commission.

    Lisa S. Gelb, Chief of Staff, Enforcement Bureau.
    Final Rules

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

    PART 1—PRACTICE AND PROCEDURE Subpart A—General Rules of Practice and Procedure 1. The authority citation for part 1 continues to read as follows: Authority:

    15 U.S.C. 79 et seq., 47 U.S.C. 151, 154(i) and (j), 155, 157, 225, 227, 303(r), and 309.

    2. Section 1.80 is amended by revising the table following paragraph (b)(8) “Section III. Non-Section 503 Forfeitures That Are Affected by the Downward Adjustment Factors” and revising paragraph (b)(9) to read as follows:
    § 1.80 Forfeiture proceedings. Section III. Non-Section 503 Forfeitures That Are Affected by the Downward Adjustment Factors Violation Statutory amount
  • ($)
  • Sec. 202(c) Common Carrier Discrimination $11,362, $568/day. Sec. 203(e) Common Carrier Tariffs 11,362, 568/day. Sec. 205(b) Common Carrier Prescriptions 22,723. Sec. 214(d) Common Carrier Line Extensions 2,272/day. Sec. 219(b) Common Carrier Reports 2,272/day. Sec. 220(d) Common Carrier Records & Accounts 11,362/day. Sec. 223(b) Dial-a-Porn 117,742. Sec. 227(e) Caller Identification 10,874/violation. 32,622/day for each day of continuing violation, up to 1,087,450 for any single act or failure to act. Sec. 364(a) Forfeitures (Ships) 9,468/day (owner). Sec. 364(b) Forfeitures (Ships) 1,894 (vessel master). Sec. 386(a) Forfeitures (Ships) 9,468/day (owner). Sec. 386(b) Forfeitures (Ships) 1,894 (vessel master). Sec. 634 Cable EEO 839.

    (9) Inflation adjustments to the maximum forfeiture amount.

    (i) Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Inflation Adjustment Act), Public Law 114-74 (129 Stat. 599-600), which amends the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, Public Law 101-410 (104 Stat. 890; 28 U.S.C. 2461 note), the statutory maximum amount of a forfeiture penalty assessed under this section shall be adjusted for inflation with an initial “catch-up” adjustment through an interim final rulemaking and interim final rules published by July 1, 2016, to take effect by August 1, 2016. Subsequent annual adjustments shall be published by January 15 each year. Catch-up adjustments will be based on the `cost-of-living adjustment' (CPI), which is the percentage (if any) by which the CPI for October in the year of the previous adjustment exceeds the CPI for October 2015. Annual inflation adjustments will be based on the percentage (if any) by which the CPI for October preceding the date of the adjustment exceeds the prior year's CPI for October. The Office of Management and Budget has provided “Table A: 2016 Civil Monetary Penalty Catch-Up Adjustment Multiplier by Calendar Year” (Table A) to determine the civil monetary penalty catch-up adjustment multiplier by calendar year. The Catch-up adjustment is determined by

    (A) Identifying from Table A, column A the latest year the penalty level or penalty range was established or last adjusted by statute or regulation (other than pursuant to the Inflation Adjustment Act), and from column B, identifying the corresponding multiplier to adjust the penalty level or range for inflation;

    (B) Multiplying the corresponding amount from column B by the amount of the maximum penalty level or the range of minimum and maximum penalties as most recently established or adjusted by statute or regulation (other than pursuant to the Inflation Adjustment Act before November 2, 2015);

    (C) Rounding to the nearest dollar; and

    (D) Comparing the new amount or range of the penalty with the amount or range in the prior year to ensure the maximum increase is not more than 150 percent of the most recent levels.

    (ii) The application of the inflation adjustments required by the 2015 Inflation Adjustment Act, 28 U.S.C. 2461 note, results in the following adjusted statutory maximum forfeitures authorized by the Communications Act:

    U.S. Code citation Maximum
  • penalty after
  • 2015 inflation
  • adjustment
  • act
  • adjustment
  • ($)
  • 47 U.S.C. 202(c) $11,362
  • 568
  • 47 U.S.C. 203(e) 11,362
  • 568
  • 47 U.S.C. 205(b) 22,723 47 U.S.C. 214(d) 2,272 47 U.S.C. 219(b) 2,272 47 U.S.C. 220(d) 11,362 47 U.S.C. 223(b) 117,742 47 U.S.C. 227(e) 10,874
  • 32,622
  • 1,087,450
  • 47 U.S.C. 362(a) 9,468 47 U.S.C. 362(b) 1,894 47 U.S.C. 386(a) 9,468 47 U.S.C. 386(b) 1,894 47 U.S.C. 503(b)(2)(A) 47,340
  • 473,402
  • 47 U.S.C. 503(b)(2)(B) 189,361
  • 1,893,610
  • 47 U.S.C. 503(b)(2)(C) 383,038
  • 3,535,740
  • 47 U.S.C. 503(b)(2)(D) 18,936
  • 142,021
  • 108,745
  • 47 U.S.C. 503(b)(2)(F) 1,087,450
  • 1,875
  • 47 U.S.C. 507(a) 47 U.S.C. 507(b) 275 47 U.S.C. 554 839 *         *         *         *         *         *         *
    [FR Doc. 2016-14801 Filed 6-29-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 202 [Docket DARS-2016-0008] RIN 0750-AI89 Defense Federal Acquisition Regulation Supplement: Deletion of Supplemental Coverage for the Definition of “Simplified Acquisition Threshold” (DFARS Case 2016-D007) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to delete the supplemental coverage for the definition “simplified acquisition threshold.” Federal Acquisition Regulation (FAR) final rule 2015-020 added to the FAR the simplified acquisition threshold for contracts to be awarded and performed, or purchases to be made, outside the United States in support of a humanitarian or peacekeeping operation.

    DATES:

    Effective June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Defense Acquisition Regulations System, Attn: Ms. Julie Hammond, OUSD (AT&L) DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060, telephone 571-372-6174.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD is amending the DFARS to delete the supplemental definition for “simplified acquisition threshold” with regard to humanitarian or peacekeeping operations at DFARS part 202. This supplemental definition was included in DFARS when there was no existing coverage in the FAR. The simplified acquisition threshold for humanitarian or peacekeeping operations has been added to the FAR under final rule 2015-020. There is no need to duplicate the definition in the DFARS; therefore, this rule removes the supplemental definition at DFARS part 202.

    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    41 U.S.C. 1707, Publication of Proposed Regulations, is the statute that applies to the publication of the Federal Acquisition Regulation (FAR). Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because the DFARS change to remove a definition that is being elevated to the FAR will not have any cost or administrative impact on contractors or offerors.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30.

    IV. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This case does not add any new provisions or clauses or impact any existing provisions or clauses.

    V. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

    VI. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 202

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 202 is amended as follows:

    PART 202—DEFINITIONS OF WORDS AND TERMS 1. The authority citation for 48 CFR part 202 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    202.101 [Amended]
    2. Amend section 202.101 by removing the definition of “Simplified acquisition threshold”.
    [FR Doc. 2016-15236 Filed 6-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212 and 252 [Docket DARS-2016-0015] RIN 0750-AI93 Defense Federal Acquisition Regulation Supplement: Pilot Program on Acquisition of Military Purpose Nondevelopmental Items (DFARS Case 2016-D014) AGENCY:

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

    ACTION:

    Interim rule.

    SUMMARY:

    DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that changes the criteria for the pilot program on acquisition of military purpose nondevelopmental items.

    DATES:

    Effective June 30, 2016.

    Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before August 29, 2016 to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2016-D014, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2016-D014” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2016-D014.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2016-D014” on your attached document.

    Email: [email protected] Include DFARS Case 2016-D014 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Mr. Dustin Pitsch, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Dustin Pitsch, telephone 571-372-6090.

    SUPPLEMENTARY INFORMATION: I. Background

    This interim rule revises the DFARS to implement section 892 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). Section 892 amends section 866 of the NDAA for FY 2011 (Pub. L. 111-383) to modify the criteria for use of the pilot program on acquisition of military purpose nondevelopmental items. Section 892 removes the requirements under the program for the use of competitive procedures and for awards to be made to nontraditional defense contractors. Section 892 also increases the threshold for use of the pilot program to contracts up to $100 million.

    Section 866 was implemented in DFARS rule 2011-D034, Pilot Program on Acquisition of Military Purpose Nondevelopmental Items (77 FR 2653), which allowed for the creation of the pilot program to test whether the streamlined procedures, similar to those available for commercial items, can serve as an effective incentive for nontraditional defense contractors to channel investment and innovation into areas that are useful to DoD and provide items developed exclusively at private expense to meet validated military requirements. The DFARS changes proposed by this rule will allow for increased opportunities to utilize the pilot program.

    II. Discussion and Analysis

    This rule amends DFARS subpart 212.71 by—

    • Deleting the term “nontraditional defense contractor” and the associated definition;

    • Removing the requirement that pilot program contracts be awarded using competitive procedures;

    • Increasing the maximum contract award value threshold for use of the pilot program from $53.5 million to $100 million; and

    • Revising the prescription for the provision at 252.212-7002 for use only when the pilot program will be used.

    Conforming changes are made to DFARS provision 252.212-7002, Pilot Program for Acquisition of Military-Purpose Nondevelopmental Items, to include removal of the requirement at paragraph (c) for offerors to represent by submission of an offer that the firm is a nontraditional contractor.

    This rule also makes one editorial change to provide at DFARS 212.7101 the full text of the definitions of “military-purpose nondevelopmental items” and “nondevelopmental items.”

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    DoD does not intend to apply the requirements of section 892 of the NDAA for FY 2016 to contracts at or below the simplified acquisition threshold (SAT) or for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items.

    A. Applicability to Contracts at or Below the SAT

    41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, Defense Procurement and Acquisition Policy (DPAP), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD did not make that determination. Therefore, this rule does not apply below the simplified acquisition threshold.

    B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD did not make that determination. While FAR part 12 commercial procedures may be used to acquire military purpose nondevelopmental items under this pilot program, the rule will not apply to the acquisition of commercial items.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    This rule is necessary to implement section 892 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016.

    The objective of the rule is to modify the criteria for the pilot program at DFARS subpart 212.71, Pilot Program for the Acquisition of Military Purpose Nondevelopmental Items, to increase the opportunities for use of the program. The rule removes the criteria that contracts must be awarded to “nontraditional defense contractors” and awards must be made using competitive procedures. The rule also increases the dollar threshold for the program to allow use on procurements up to $100 million.

    The changes to the pilot program will have a positive economic impact on small businesses that did not meet the definition of “nontraditional defense contractors” and have developed products that could be applied to a military purpose. According to data available in the Federal Procurement Data System for FY 2015, 6,514 unique small businesses were awarded a DoD contract in excess of the certified cost and pricing threshold ($750,000) and therefore did not meet the definition of “nontraditional defense contractor.” Prior to the changes made by this rule these small businesses were not eligible for an award under the pilot program. These small businesses will now be able to participate in the pilot program if they are developing a military purpose nondevelopmental item.

    This rule does not impose any new reporting, recordkeeping or other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. No significant alternatives were identified during the development of this rule.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2016-D014) in correspondence.

    VI. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    VII. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This interim rule implements section 892 of the NDAA for FY 2016 (Pub. L. 114-92), which amended section 866 of the NDAA for FY 2011 (Pub. L. 111-383) to—

    • Modify criteria for use of the pilot program in order to increase opportunities for use;

    • Remove the requirements under the program to use competitive procedures;

    • Remove requirements for awards to be made to nontraditional defense contractors; and

    • Increase the threshold for use of the program to contracts up to $100 million.

    The purpose of the pilot program is to test whether the streamlined procedures, similar to those available for commercial items, can serve as an effective incentive for nontraditional defense contractors to channel investment and innovation into areas that are useful to DoD and provide items developed exclusively at private expense to meet validated military requirements. This action is necessary because the pilot program expires on December 31, 2019, and, in order to realize any of the benefits from the statutory modifications made by this rule prior to the expiration of the pilot program, the changes made by this rule must take effect immediately. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments received in response to this interim rule in the formation of the final rule.

    List of Subjects in 48 CFR Parts 212 and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212 and 252 are amended as follows:

    1. The authority citation for 48 CFR parts 212 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 212—ACQUISITION OF COMMERCIAL ITEMS
    212.7100 [Amended]
    2. Section 212.7100 is amended by removing “(Pub. L. 111-383)” and adding “(Pub. L. 111-383), as modified by section 892 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92)” in its place. 3. Section 212.7101 is revised to read as follows:
    212.7101 Definitions.

    As used in this subpart—

    Military-purpose nondevelopmental item means a nondevelopmental item that meets a validated military requirement, as determined in writing by the responsible program manager, and has been developed exclusively at private expense. An item shall not be considered to be developed at private expense if development of the item was paid for in whole or in part through—

    (1) Independent research and development costs or bid and proposal costs, per the definition in FAR 31.205-18, that have been reimbursed directly or indirectly by a Federal agency or have been submitted to a Federal agency for reimbursement; or

    (2) Foreign government funding.

    Nondevelopmental item is defined in FAR 2.101 and also includes previously developed items of supply that require modifications other than those customarily available in the commercial marketplace if such modifications are consistent with the requirement at 212.7102-1(c)(1).

    212.7102-1 [Amended]
    4. Amend section 212.7102-1 by— a. In the introductory text, removing “The contracting officer may enter into contracts with nontraditional defense contractors for” and adding “The contracting officer may utilize this pilot program to enter into contracts for” in its place; b. Removing paragraph (a); c. Redesignating paragraphs (b) through (e) as paragraphs (a) through (d), respectively; d. In the newly redesignated paragraph (b), removing “$53.5 million” and adding “$100 million” in its place; and e. In the newly redesignated paragraph (c)(2), removing “(d)(1)” and adding “(c)(1)” in its place.
    212.7103 [Amended]
    5. Amend 212.7103 by removing “in all solicitations” and adding “in solicitations” in its place, and removing “for this pilot program” and adding “and plan to use the pilot program” in its place.
    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    252.212-7002 [Amended]
    6. Amend section 252.212-7002 by— a. Removing the clause date “(JUN 2012)” and adding “(JUN 2016)” in its place; b. In paragraph (a)— i. For the definition of “nondevelopmental item”, removing “FAR 2.101 and for the purpose of this subpart also includes” and adding “FAR 2.101 and also includes” in its place, and removing “of DFARS 212.7102-2(d)(1)” and adding “at DFARS 212.7102-1(c)(1)” in its place; and ii. Removing the definition of “nontraditional defense contractor”; c. In paragraph (b), removing “Nondevelopmental Items,” and adding “Nondevelopmental Items, as modified by section 892 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92),” in its place; and d. Removing paragraph (c).
    [FR Doc. 2016-15256 Filed 6-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 216, 225, and 252 [Docket DARS-2015-0045] RIN 0750-AI69 Defense Federal Acquisition Regulation Supplement: Defense Contractors Performing Private Security Functions (DFARS Case 2015-D021) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to consolidate all requirements for contractors performing private security functions outside the United States applicable to DoD contracts in the DFARS and make changes regarding applicability and high-level quality assurance standards.

    DATES:

    Effective June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Julie Hammond, telephone 571-372-6174.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 81496 on December 30, 2015, to consolidate all requirements for DoD contractors performing private security functions in certain designated operational areas in the DFARS at 225.302 and the clause at 252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States. The rule also proposed to identify the international high-quality assurance standard “ISO 18788: Management System for Private Security Operations” as an approved alternative to the American standard “ANSI/ASIS PSC.1-2012” currently required by DFARS clause 252.225-7039. One respondent submitted public comments in response to the proposed rule.

    II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final rule. There are no changes from the proposed rule in the final rule. A discussion of the comments is provided as follows:

    A. Analysis of Public Comments

    Comment: The respondent proposed that the clause at DFARS 252.225-7039 be amended to require a contractor to demonstrate compliance with the American National Standard, ANSI/ASIS PSC.1-2012, and/or the International Standard, ISO 18788, by producing a valid certificate of compliance from a nationally accredited certification body.

    Response: DoD does not have the statutory authority to require a certificate of compliance from a certification body accredited by a national accreditation body. Section 833 of the National Defense Authorization Act for Fiscal Year 2011 only authorized that the Secretary of Defense “may provide for the consideration of such certifications as a factor in the evaluation of proposals for award of a covered contract for the provision of private security functions.” Therefore, no changes are made in the rule.

    Comment: The respondent also proposed that the clause explicitly state that the requirements of ANSI/ASIS PSC.1-2012 “are incumbent upon subcontractors on relevant DoD contracts.”

    Response: The Government does not have privity of contract with subcontractors. However, paragraph (f) of the clause requires contractors to include the substance of the clause, to include paragraph (c)(4) of the clause, in covered subcontracts. Paragraph (c)(4) of the clause requires compliance with ANSI/ASIS PSC.1-2012 or ISO 18788.

    B. Other Changes

    For consistency in use of terminology in DFARS clause 252.225-7039, in paragraphs (c)(1) and (2), the term “employees of the Contractor” is removed and replaced with “Contractor personnel” in both places.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the Shelf Items

    This rule amends the DFARS to consolidate all requirements for contractors performing private security functions outside the United States applicable to DoD contracts in the DFARS and makes changes regarding applicability and high-level quality assurance standards. DFARS clause 252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States, and its prescription at DFARS 225.302-6 are amended. The revisions, however, do not affect applicability of the clause at or below the simplified acquisition threshold or to commercial item acquisitions.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    This final rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to consolidate all requirements for DoD contractors performing private security functions outside the U.S. from the FAR 25.302 and the clause at FAR 52.225-26, Contractors Performing Private Security Functions Outside the Unites States, in DFARS 225.302 and the clause at DFARS 252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States.

    The objectives of this rule are as follows:

    • Provide DoD contracting officers and contractors a single clause covering all requirements related to the performance of private security functions outside the United States that may be updated by DoD as policies are issued that affect only defense contractors.

    • Identify the international high-quality assurance standard “ISO 18788: Management System for Private Security Operations” as an approved alternative to the American standard “ANSI/ASIS PSC.1-2012” currently required by DFARS clause 252.225-7039.

    No comments were received from the public in response to the initial regulatory flexibility analysis.

    This final rule will apply to defense contractors performing private security functions outside of the United States in designated operational areas under DoD contracts. According to data available in the Federal Procurement Data System for fiscal year (FY) 2013, DoD awarded 159 contracts that required performance outside the United States, although not necessarily in a designated operation area, and cited the National American Industry Classification System code 561612, Security Guards and Patrol Services, of which 33 contracts (21%) were awarded to small businesses. In FY 2014, DoD awarded 123 such contracts, of which 31 contracts (25%) were to small businesses.

    The private security contractors are required to report incidents when: (1) A weapon is discharged by personnel performing private security functions; (2) personnel performing private security functions are attacked, killed, or injured; (3) persons are killed or injured or property is destroyed as a result of conduct by Contractor personnel; (4) a weapon is discharged against personnel performing private security functions or personnel performing such functions believe a weapon was so discharged; or (5) active, non-lethal countermeasures (other than the discharge of a weapon) are employed by personnel performing private security functions in response to a perceived immediate threat. As a regular record keeping requirement, private security contractors are required to keep appropriate records of personnel by registering in the Synchronized Predeployment Operational Tracker the equipment and weapons used by its personnel. The complexity of the work to prepare these records requires the expertise equivalent to that of a GS-11, step 5 with clerical and analytical skills to create the documents.

    There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant.

    VI. Paperwork Reduction Act

    This rule contains information collection requirements under the Paperwork Reduction Act (44 U.S.C. chapter 35). The Office of Management and Budget (OMB) has assigned OMB Control Number 0704-0549, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) part 225, Foreign Acquisition, and Defense Contractors Performing Private Security Functions Outside the United States.”

    List of Subjects in 48 CFR Parts 216, 225, and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 216, 225, and 252 are amended as follows:

    1. The authority citation for 48 CFR parts 216, 225, and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 216—TYPES OF CONTRACTS
    216.405-2-71 [Amended]
    2. In section 216.405-2-71, amend paragraph (b) by removing “FAR 52.225-26, Contractors Preforming Private Security Functions” and adding “252.225-7039, Defense Contractors Performing Private Security Functions Outside the United States” in its place.
    PART 225—FOREIGN ACQUISITION
    225.302-6 [Amended]
    3. Amend section 225.302-6 introductory text by removing “Outside the United States,” and adding “Outside the United States, instead of FAR clause 52.225-26, Contractors Performing Private Security Functions Outside the United States,” in its place.
    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. Amend section 252.225-7039 by— a. Removing the clause date “(JAN 2015)” and adding “(JUN 2016)” in its place; b. Redesignating paragraphs (a) and (b) as paragraphs (c) and (f), respectively; c. Adding new paragraphs (a) and (b); d. Revising newly redesignated paragraph (c); e. Adding paragraphs (d) and (e); f. In newly redesignated paragraph (f), removing “paragraph (b)” and adding “paragraph (f)” in its place.

    The additions and revision read as follows:

    252.225-7039 Defense Contractors Performing Private Security Functions Outside the United States.

    (a) Definitions. As used in this clause—

    Full cooperation—(1) Means disclosure to the Government of the information sufficient to identify the nature and extent of the incident and the individuals responsible for the conduct. It includes providing timely and complete response to Government auditors' and investigators' requests for documents and access to employees with information;

    (2) Does not foreclose any contractor rights arising in law, the FAR or the terms of the contract. It does not require—

    (i) The contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; or

    (ii) Any officer, director, owner, or employee of the contractor, including a sole proprietor, to waive his or her attorney-client privilege or Fifth Amendment rights; and

    (3) Does not restrict the contractor from—

    (i) Conducting an internal investigation; or

    (ii) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation.

    Private security functions means the following activities engaged in by a contractor:

    (1) Guarding of personnel, facilities, designated sites or property of a Federal agency, the contractor or subcontractor, or a third party.

    (2) Any other activity for which personnel are required to carry weapons in the performance of their duties in accordance with the terms of this contract.

    (b) Applicability. If this contract is performed both in a designated area and in an area that is not designated, the clause only applies to performance in the designated area. Designated areas are areas outside the United States of—

    (1) Contingency operations;

    (2) Combat operations, as designated by the Secretary of Defense;

    (3) Other significant military operations (as defined in 32 CFR part 159), designated by the Secretary of Defense upon agreement of the Secretary of State;

    (4) Peace operations, consistent with Joint Publication 3-07.3; or

    (5) Other military operations or military exercises, when designated by the Combatant Commander.

    (c) Requirements. The Contractor shall—

    (1) Ensure that all Contractor personnel who are responsible for performing private security functions under this contract comply with 32 CFR part 159 and any orders, directives, or instructions to contractors performing private security functions that are identified in the contract for—

    (i) Registering, processing, accounting for, managing, overseeing and keeping appropriate records of personnel performing private security functions;

    (ii) Authorizing, accounting for and registering in Synchronized Predeployment and Operational Tracker (SPOT), weapons to be carried by or available to be used by personnel performing private security functions;

    (iii) Identifying and registering in SPOT armored vehicles, helicopters and other military vehicles operated by Contractors performing private security functions; and

    (iv) In accordance with orders and instructions established by the applicable Combatant Commander, reporting incidents in which—

    (A) A weapon is discharged by personnel performing private security functions;

    (B) Personnel performing private security functions are attacked, killed, or injured;

    (C) Persons are killed or injured or property is destroyed as a result of conduct by Contractor personnel;

    (D) A weapon is discharged against personnel performing private security functions or personnel performing such functions believe a weapon was so discharged; or

    (E) Active, non-lethal countermeasures (other than the discharge of a weapon) are employed by personnel performing private security functions in response to a perceived immediate threat;

    (2) Ensure that Contractor personnel who are responsible for performing private security functions under this contract are briefed on and understand their obligation to comply with—

    (i) Qualification, training, screening (including, if applicable, thorough background checks) and security requirements established by 32 CFR part 159;

    (ii) Applicable laws and regulations of the United States and the host country and applicable treaties and international agreements regarding performance of private security functions;

    (iii) Orders, directives, and instructions issued by the applicable Combatant Commander or relevant Chief of Mission relating to weapons, equipment, force protection, security, health, safety, or relations and interaction with locals; and

    (iv) Rules on the use of force issued by the applicable Combatant Commander or relevant Chief of Mission for personnel performing private security functions;

    (3) Provide full cooperation with any Government-authorized investigation of incidents reported pursuant to paragraph (c)(1)(iv) of this clause and incidents of alleged misconduct by personnel performing private security functions under this contract by providing—

    (i) Access to employees performing private security functions; and

    (ii) Relevant information in the possession of the Contractor regarding the incident concerned; and

    (4) Comply with ANSI/ASIS PSC.1-2012, American National Standard, Management System for Quality of Private Security Company Operations—Requirements with Guidance or the International Standard ISO 18788, Management System for Private Security Operations—Requirements with Guidance (located at http://www.acq.osd.mil/log/PS/psc.html).

    (d) Remedies. In addition to other remedies available to the Government—

    (1) The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor or subcontractor personnel performing private security functions who fail to comply with or violate applicable requirements of this clause or 32 CFR part 159. Such action may be taken at the Government's discretion without prejudice to its rights under any other provision of this contract;

    (2) The Contractor's failure to comply with the requirements of this clause will be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of past performance; and

    (3) If this is an award-fee contract, the Contractor's failure to comply with the requirements of this clause shall be considered in the evaluation of the Contractor's performance during the relevant evaluation period, and the Contracting Officer may treat such failure to comply as a basis for reducing or denying award fees for such period or for recovering all or part of award fees previously paid for such period.

    (e) Rule of construction. The duty of the Contractor to comply with the requirements of this clause shall not be reduced or diminished by the failure of a higher- or lower-tier Contractor or subcontractor to comply with the clause requirements or by a failure of the contracting activity to provide required oversight.

    [FR Doc. 2016-15247 Filed 6-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 225 [Docket DARS-2016-0007] RIN 0750-AI88 Defense Federal Acquisition Regulation Supplement: Treatment of Interagency and State and Local Purchases (DFARS Case 2016-D009) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that is entitled “Treatment of Interagency and State and Local Purchases.” This section provides that contracts executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other Federal agencies or State or local governments.

    DATES:

    Effective June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy G. Williams, telephone 571-372-6106.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD published a proposed rule in the Federal Register at 81 FR 17053 on March 25, 2016, to implement section 897 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92). Section 897 provides that contracts executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration shall not be subject to the requirements under 10 U.S.C. chapter 148 (National Defense Technology and Industrial Base, Defense Investment, and Defense Conversion), to the extent that such contracts are for the purchase of products by other Federal agencies or State or local governments. One respondent submitted public comments in response to the proposed rule.

    II. Discussion and Analysis

    There are no changes from the proposed rule made in the final rule. The one respondent that submitted a comment fully supported the proposed rule.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This case does not add any new provisions or clauses or impact any existing provisions or clauses.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    This rule implements section 897 of the National Defense Authorization Act for Fiscal Year 2016. The objective of this rule is to eliminate the domestic source restrictions of 10 U.S.C. chapter 148 when contracts executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration, to the extent that such contracts are for the purchase of products by other Federal agencies or State or local governments.

    There were no significant issues raised by the public in response to the initial regulatory flexibility analysis.

    DoD does not anticipate frequent application of this rule. The rule removes the domestic source restriction for the specified items in the specified circumstances. In the rare instance in which the circumstances of the statute apply, it is possible that an item could be acquired from a foreign source, rather than a domestic source, which could potentially be a small business. It is not possible to estimate the number of small entities that may be affected, because it is unknown the extent to which the given circumstances may occur.

    There are no projected reporting, recordkeeping, or other compliance requirements.

    DoD has not identified any alternatives that would minimize any economic impact on small entities and still meet the requirements of the statute.

    VI. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 225

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is amended as follows:

    PART 225—FOREIGN ACQUISITION 1. The authority citation for 48 CFR part 225 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Amend section 225.7002-2 by adding paragraph (o) to read as follows:
    225.7002-2 Exceptions.

    (o) Acquisitions that are interagency, State, or local purchases that are executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration. According to section 897 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), such contracts shall not be subject to requirements under chapter 148 of title 10, United States Code (including 10 U.S.C. 2533a), to the extent such contracts are for purchases of products by other Federal agencies or State or local governments.

    [FR Doc. 2016-15249 Filed 6-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 252 [Docket DARS-2016-0022] RIN 0750-AI98 Defense Federal Acquisition Regulation Supplement: New Designated Country—Ukraine (DFARS Case 2016-D026) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add Ukraine as a new designated country under the World Trade Organization Government Procurement Agreement.

    DATES:

    Effective June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Christopher Stiller, telephone 571-372-6176.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On November 11, 2015, the World Trade Organization (WTO) Committee on Government Procurement approved the accession of Ukraine to the WTO Government Procurement Agreement (GPA). Ukraine submitted its instrument of accession to the Secretary General of the WTO on April 18, 2016. The GPA entered into force for Ukraine on May 18, 2016. The United States, which is also a party to the GPA, has agreed to waive discriminatory purchasing requirements for eligible products and suppliers of Ukraine beginning on May 18, 2016. Therefore, this rule adds Ukraine to the list of WTO GPA countries wherever it appears in the DFARS, as part of the definition of “designated country”.

    II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule only updates the list of designated countries in the DFARS by adding the newly designated country of Ukraine. The definition of “designated country” is updated in each of the following clauses; however, this revision does not impact the clause prescriptions for use, or applicability at or below the simplified acquisition threshold, or applicability to commercial items. The clauses are: DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements; and DFARS 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements.

    III. Publication of This Final Rule for Public Comment is not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is just updating the lists of designated countries in order to reflect that Ukraine is now a member of the WTO GPA. These requirements affect only the internal operating procedures of the Government.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

    VI. Paperwork Reduction Act

    This rule affects the information collection requirements in the provisions at DFARS 252.225-7020, Trade Agreements Certificate, and 252.225-7018, Photovoltaic Devices—Certificate, currently approved under OMB Control Number 0704-0229, entitled “Defense Federal Acquisition Regulation Supplement Part 225, Foreign Acquisition, and related clauses,” in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because the rule only affects the response of an offeror that is offering a product of Ukraine in an acquisition that exceeds $191,000. In 252.225-7018, the offeror of a product from Ukraine must now check a box at (d)(6)(i) of the provision. However, the offeror no longer needs to list a product from Ukraine under “other end products” at 252.225-7020(c)(2), because Ukraine is now a designated country.

    List of Subjects in 48 CFR Part 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 252 is amended as follows:

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for 48 CFR part 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    252.225-7017 [Amended]
    2. Amend section 252.225-7017 by— a. Removing the clause date of “(JAN 2016)” and adding “(JUN 2016)” in its place; and b. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”.
    252.225-7021 [Amended]
    3. Amend section 252.225-7021 by— a. Removing the basic clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; b. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”; and c. In the Alternate II clause— i. Removing the clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; and ii. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”.
    252.225-7045 [Amended]
    4. Amend section 252.225-7045 by— a. Removing the basic clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; b. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”; c. In the Alternate I clause— i. Removing the clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; and ii. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”; d. In the Alternate II clause— i. Removing the clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; and ii. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”; and e. In the Alternate III clause— i. Removing the clause date of “(OCT 2015)” and adding “(JUN 2016)” in its place; and ii. In paragraph (a), in the definition of “designated country” in paragraph (i), adding, in alphabetical order, the country of “Ukraine”.
    [FR Doc. 2016-15258 Filed 6-29-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 190 [Docket No. PHMSA-2016-0010] RIN-2137-AF16 Pipeline Safety: Inflation Adjustment of Maximum Civil Penalties AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

    ACTION:

    Interim final rule.

    SUMMARY:

    PHMSA is revising references in its regulations to the maximum civil penalties for violations of the Federal Pipeline Safety Laws, or any PHMSA regulation or order issued thereunder. Under the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” which further amended the “Federal Civil Penalties Inflation Adjustment Act of 1990,” federal agencies are required to adjust their civil monetary penalties effective August 1, 2016, and then annually thereafter, to account for changes in inflation.

    PHMSA finds good cause to amend the regulation related to civil penalties without notice and opportunity for public comment. For the reasons described below, advance public notice is unnecessary.

    DATES:

    The effective date of this interim final rule is August 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aaron Glaser, Attorney-Advisor, Pipeline Safety Division, Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, by telephone at 202-366-6318 or by email at [email protected]; Melanie Stevens, Attorney-Advisor, Pipeline Safety Division, Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, by telephone at 202-366-5466 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Procedures Background

    Section 701 of the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” (Pub. L. 114-72) (the 2015 Act) amended the “Federal Civil Penalties Inflation Adjustment Act of 1990” (Pub. L. 101-410) (Inflation Adjustment Act) to require that federal agencies adjust their civil penalties with an initial “catch-up” adjustment through an interim final rulemaking by July 1, 2016, as well as make subsequent annual adjustments for inflation. This interim rule adjusts the maximum civil penalties assessed under 49 U.S.C. 60101, et seq., or regulations or orders issued thereunder. These adjusted penalties will apply to violations occurring on or after the effective date of August 1, 2016.

    On February 24, 2016, the Office of Management and Budget (OMB) issued a “Memorandum for the Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” M-16-06 (OMB Memorandum M-16-06), providing guidance to federal agencies on how to update their civil penalties pursuant to the 2015 Act. OMB Memorandum M-16-06 directs agencies to use multipliers to adjust their civil monetary penalties, or the minimum and maximum penalties, based on the year the penalty was established or last adjusted by statute or regulation other than under the Inflation Adjustment Act (Base Year). For the catch-up adjustment, the agency must use the multiplier, based on the Consumer Price Index for October 2015, provided in the table of OMB Memorandum M-16-06 and multiply it by the current maximum penalty amount. After making an adjustment, all penalty levels must be rounded to the nearest dollar, but no penalty level may be increased by more than 150 percent of corresponding penalty levels in effect on November 2, 2015.

    PHMSA is revising the maximum civil penalty amounts in its regulations, consistent with the process outlined in OMB Memorandum M-16-06. The “Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011” (the 2011 Act) (Public Law No: 112-90) adjusted the maximum civil penalties for violations under 49 U.S.C. 60101, et seq. In 2013, PHMSA amended 49 Code of Federal Regulations (CFR) § 190.223(a) to conform to the 2011 Act, effective January 2, 2012. (78 FR 58897). Based on the 2012 effective date, a multiplier 1.02819 was used to calculate the updated penalties for violations under 49 U.S.C. 60101, et seq., and any regulation or order issued thereunder. The civil penalty amounts for violations of 49 U.S.C. 60103 and 60111 were last set by Congress in 1994 with the Revision of Title 49, United States Code Annotated, Transportation (Pub. L. 103-272), and last adjusted by PHMSA in 1996 via regulation amending 49 CFR 190.223(c) (61 FR 18515). The 1996 multiplier of 1.50245 was used to calculate the updated penalties for violations of 49 U.S.C. 60103 and 60111. Lastly, the penalty amount for violations of 49 U.S.C. 60129 was last set by Congress in 2002 with the passage of the “Pipeline Safety Improvement Act of 2002,” (Pub. L. 107-355), and last adjusted by PHMSA in 2005 via regulation amending 49 CFR 190.223(d) (70 FR 11137). The 2005 multiplier of 1.19397 was used to calculate the updated penalties for violations of 49 U.S.C. 60129. These revised penalties are shown as follows:

    Violated statute CFR Citation Base year Current maximum civil penalty Revised maximum civil penalty 49 U.S.C. 60101 et seq., and any regulation or order issued thereunder. 49 CFR 190.223(a) 2012 $200,000 for each violation for each day the violation continues, with a maximum penalty not to exceed $2,000,000 for a related series of violations $205,638 for each violation for each day the violation continues, with a maximum penalty not to exceed $2,056,380 for a related series of violations. 49 U.S.C. 60103;49 U.S.C. 60111 49 CFR 190.223(a) 1996 A penalty not to exceed $50,000, which may be in addition to other penalties under 40 U.S.C. 60101, et seq An administrative civil penalty not to exceed $75,123, which may be in addition to other penalties assessed under 49 U.S.C. 60101, et seq. 49 U.S.C. 60129 49 CFR 190.223(d) 2005 A penalty not to exceed $1,000 A penalty not to exceed $1,194.

    The 2015 Act only applies to penalties prospectively and does not retrospectively change any civil penalties previously assessed or enforced.

    Starting in January 2017, PHMSA is required to publish in the Federal Register annual inflation adjustments for each penalty levied under 49 U.S.C. 60101, et seq., and do so no later than January 15 of each year.

    The 2015 Act does not alter PHMSA's existing authority to assess penalties levied for violations under 49 U.S.C. 60101, et seq. Additionally, if future penalties or penalty adjustments are enacted by statute or regulation, PHMSA will not adjust these penalties for inflation in the first year after these penalties are in effect. PHMSA will apply new annual penalty levels to any penalties assessed on or after the date these new levels take effect.

    II. Justification for Interim Final Rule

    The Administrative Procedure Act (APA) authorizes agencies to forego providing the opportunity for prior public notice and comment if an agency finds good cause that notice and public procedure are unnecessary. See 5 U.S.C. 553(b)(3)(B). In this instance, PHMSA is required under the 2015 Act and directed by the OMB Guidance to publish this rule by July 1, 2016, with the penalty levels stated herein to take effect no later than August 1, 2016. Further, PHMSA is mandated by the 2015 Act and directed by the OMB Guidance to adjust the penalty levels pursuant to the specific procedures also stated herein. Any public comments received through notice and public procedure would therefore not affect PHMSA's obligation to comply with the 2015 Act or OMB Guidance, nor would they affect the methods used by PHMSA to adjust the penalty levels. PHMSA, therefore, finds good cause that APA notice and comment are unnecessary for this interim final rule.

    III. Rulemaking Analyses and Notices A. Statutory/Legal Authority for This Rulemaking

    This rule is published under the authority of the 2015 Act, as well 49 U.S.C. 60101 et seq. These statutes provide PHMSA with the authority to levy civil penalties for violations of the federal Pipeline Safety Laws. The 2015 Act requires penalties levied by federal agencies pursuant to these laws to be adjusted, and for the new adjusted penalties to take effect no later than August 1, 2016. Further, beginning in January 2017, the 2015 Act requires such penalties to be adjusted on an annual basis no later than January 15 of each year.

    B. Executive Orders 12866 and 13563, and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing DOT policies and procedures and determined to be non-significant under Executive Orders 12866 and 12563. This rule is considered a regulatory action under Section 3(e) of Executive Order 12866, and pursuant to Section 6(a)(3)(D) of Executive Order 12866. Further, this interim final rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation because it is limited to a ministerial act on which the agency has no discretion and the economic impact of this rule is minimal. (44 FR 11034). Accordingly, preparation of a regulatory evaluation is not warranted.

    This rule imposes no new costs upon persons conducting operations in compliance with federal pipeline statutes and regulations. Those operators not in compliance with these statutes and regulations may experience an increased cost, based on the penalties levied against them for non-compliance; however, this is an avoidable, variable cost and thus, is not considered in any evaluation of the significance of this regulatory action. The amendments in this rule could provide a deterrent effect that could potentially lead to safety benefits; however, PHMSA does not expect such benefits to be significant. Overall, it is anticipated that costs and benefits from this rule would be minimal in real dollars.

    C. Executive Order 13132

    PHMSA has analyzed this rule according to Executive Order 13132 on federalism. The interim final rule does not have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. The rule neither imposes substantial direct compliance costs on state and local governments nor preempts state law governing intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    D. Executive Order 13175

    This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 on consultation and coordination with Indian tribal governments. Because the rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

    E. Executive Order 13211

    This rule is not a “significant energy action” under Executive Order 13211 on actions concerning regulations that significantly affect energy supply, distribution, or use. It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs (OIRA) within OMB has not designated this rule as a significant energy action.

    F. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each agency to analyze proposed regulations and assess their impact on small businesses and other small entities to determine whether the rule is expected to have a significant impact on a substantial number of small entities. The provisions of this interim final rule may apply specifically to all businesses using pipelines to transport hazardous liquids, gas, and LNG in interstate commerce. Therefore, PHMSA certifies this rule would not have a significant economic impact on a substantial number of small entities.

    G. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $155,000,000 or more, adjusted for inflation, in any year for either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least-burdensome alternative that achieves the objective of the rule.

    H. Paperwork Reduction Act

    This interim final rule imposes no new requirements for recordkeeping or reporting.

    I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4375), requires federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. When developing potential regulatory requirements, PHMSA evaluates those requirements to consider the environmental impact of these amendments. Specifically, PHMSA evaluates the risk of release and resulting environmental impact; risk to human safety, including any risk to first responders; if the proposed regulation would be carried out in a defined geographic area; and the resources, especially in environmentally sensitive areas, that could be impacted by any proposed regulations.

    This interim final rule would be generally applicable to pipeline operators, and would not be carried out in a defined geographic area. The adjusted, increased civil penalties listed in this interim final rule may act as a deterrent to those violating the Federal Pipeline Safety Laws, or any PHMSA regulation or order issued thereunder. This may result in a positive environmental impact as a result of increased compliance with the Federal Pipeline Safety Laws and any PHMSA regulations or orders issued thereunder. Based on the above discussion, PHMSA concludes there are no significant environmental impacts associated with this interim final rule.

    J. Privacy Act

    Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70, pages 19477-78) or online at https://www.federalregister.gov/articles/2000/04/11/00-8505/privacy-act-of-1974-systems-of-records or https://www.thefederalregister.org/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

    K. Executive Order 13609 and International Trade Analysis

    Sections 3 and 4 of Executive Order 13609 direct an agency to conduct a regulatory analysis and ensure that a proposed rule does not cause unnecessary obstacles to foreign trade. This requirement applies if a rule constitutes a significant regulatory action, or if a regulatory evaluation must be prepared for the rule. This interim final rule is not a significant regulatory action, but a regulatory action under Section 3(e) of Executive Order 12866. PHMSA is not required under Executive Orders 12866 and 13563 to submit a regulatory analysis.

    L. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action in the Unified Agenda.

    List of Subjects in 49 CFR Part 190

    Administrative practice and procedure, Penalties, Pipeline safety.

    In consideration of the foregoing, PHMSA is amending 49 CFR part 190 as follows:

    PART 190—PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES 1. The authority citation for part 190 is revised to read as follows: Authority:

    33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; 49 CFR 1.97; Pub. L. 114-74, section 701; Pub. L. No: 112-90, section 2; Pub. L. 101-410, sections 4-6.

    2. Section 190.223 is amended by revising paragraphs (a) though (d) to read as follows:
    § 190.223 Maximum penalties.

    (a) Any person found to have violated a provision of 49 U.S.C. 60101 et seq., or any regulation or order issued thereunder is subject to an administrative civil penalty not to exceed $205,638 for each violation for each day the violation continues, except that the maximum administrative civil penalty may not exceed $2,056,380 for any related series of violations.

    (b) Any person found to have violated a provision of 33 U.S.C. 1321(j) or any regulation or order issued thereunder is subject to an administrative civil penalty under 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 19.4.

    (c) Any person found to have violated any standard or order under 49 U.S.C. 60103 is subject to an administrative civil penalty not to exceed $75,123, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.

    (d) Any person who is determined to have violated any standard or order under 49 U.S.C. 60129 is subject to an administrative civil penalty not to exceed $1,194, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.

    Issued in Washington, DC, under authority delegated in 49 CFR Part 1.97. Marie Therese Dominguez, Administrator.
    [FR Doc. 2016-15529 Filed 6-29-16; 8:45 am] BILLING CODE 4910-60-P
    SURFACE TRANSPORTATION BOARD 49 CFR Chapter X [Docket No. EP 719] Small Entity Size Standards Under the Regulatory Flexibility Act AGENCY:

    Surface Transportation Board (Board or STB).

    ACTION:

    Final statement of agency policy.

    SUMMARY:

    On July 11, 2013, the Board issued a notice of proposed size standards for purposes of the Regulatory Flexibility Act, along with a request for public comment. This decision discusses the comment received in response to the proposed size standards and adopts the proposed standard as the final statement of agency policy concerning the definition of “small business.”

    DATES:

    This policy statement is effective June 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Amy Ziehm at (202) 245-0391. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    The Regulatory Flexibility Act (RFA) requires agencies to consider the impact of their regulations on small entities,1 analyze effective alternatives that minimize the impact to small entities, and make their analyses available for public comment. The Small Business Administration (SBA) developed “size standards” to clarify the term small business and to carry out the purposes of the Small Business Act. Agencies can then use the SBA's size standards for purposes of defining “small entities” to comply with the RFA. However, an agency may establish other definitions for small business that are appropriate to the agency's activities after consultation with the SBA's Office of Advocacy and after opportunity for public comment. 5 U.S.C. 601(3). The SBA has promulgated regulations that classify “Line-Haul Railroads” with 1,500 or fewer employees and “Short Line Railroads” with 500 or fewer employees as small businesses. 13 CFR 121.201 (industry subsector 482).

    1 The RFA defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6).

    On July 16, 2013, the Board served a notice proposing its own small entity size standards for purposes of the RFA, along with a request for comment. 78 FR 42,484 (July 16, 2013). After consulting with the SBA's Office of Advocacy, the Board proposed to establish a small entity size standard based on its longstanding classification system, which classifies freight railroads as Class I, Class II, or Class III based on annual operating revenues.2 Specifically, the Board proposed to define “small business” as only those rail carriers that would be classified as Class III carriers. The Board stated that it believed that this definition is more realistic and useful than the general definitions previously established by the SBA. The Board also noted that this would create consistency with the Federal Railroad Administration (FRA), which in 2003 adopted the Class III standard as its definition of a small business.

    2 Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $38,060,383 or less when adjusted for inflation using 2014 data. Class II rail carriers have annual operating revenues of up to $250 million in 1991 dollars or up to $475,754,802 when adjusted for inflation using 2014 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    The American Short Line and Regional Railroad Association (ASLRRA) submitted a comment on August 5, 2013, opposing the Board's proposal. ASLRRA agrees with the SBA's current definition of small business, which uses the number of employees, rather than revenue, as the relevant metric. It maintains that revenue is an unreliable metric for determining whether a railroad is a small business because railroads are “so capital intensive their revenues must provide a return on that huge investment or they cannot stay in business” and because “small railroad revenues are driven largely by the types of commodities they happen to carry.” (ASLRRA Comment 3) ASLRRA argues that changing the definition would exclude many Class II railroads from the small business designation, and would thus “strip them from the financial impact review that is the right of small entities during the rulemaking process pursuant to the Regulatory Flexibility Act.” (Id.) Finally, ASLRRA claims that Class II railroads have little in common with Class I railroads and share more characteristics with the smaller Class III railroads. (Id. at 4.)

    Despite ASLRRA's objection to the use of our revenue classifications over employee counts to define a small business, we find that it is the more appropriate basis for doing so. Even if, as ASLRRA argues, there is some variation between carriers of similar employment levels due, in part, to the types of commodities being shipped, that alone does not mean that employment level represents the better approach to defining a small business. As the Board explained in the notice, the system of classifying railroads based on revenue is used pervasively by the Board and the railroad industry. The agency has used revenue to classify rail carriers since as early as 1911, and the agency's governing statute, precedent, and regulations often impose different requirements depending on the class of carrier involved. The validity of using revenues to define carrier size has thus been sufficiently demonstrated over time. ASLRRA has not demonstrated that using a size standard based on employment levels is superior to the revenue basis the agency and railroad industry have used for decades.

    We now address whether the definition of small business should or should not include Class II carriers. The Board acknowledges ASLRRA's concerns regarding Class II rail carriers and recognizes the differences between Class I, Class II, and Class III railroads. However, the Board does not believe that Class II carriers should be classified as small businesses. Under the Board's governing statutes and regulations, special exceptions are made for Class III carriers, but not Class II carriers.3 The Board's decision to limit the definition of small business solely to Class III carriers is therefore consistent with the broader regulatory scheme and merely formalizes what is already a common understanding of a small business in the railroad industry.

    3 For example, the Board created a class exemption for acquisitions of rail lines by Class III carriers (49 CFR Subpart E—Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail Carriers); Class III carriers are exempt from labor protective conditions for line acquisitions and mergers (49 U.S.C. 11326(c)); and Class III carriers are the only carriers allowed to file Feeder Line applications (49 U.S.C. 10907(a)).

    In addition, the Board also believes there is significant utility in maintaining consistency with the practices of the Federal Railroad Administration, which adopted the same definition of small entity for RFA purposes. Final Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws, 68 FR 24,891 (May 9, 2003); see also Interim Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws, 62 FR 43,024 (Aug. 11, 1997). Having two agencies that play complementary roles in railroad industry regulation use different definitions of small business could result in lack of uniformity in the adoption of Federal regulations. In particular, an entity could be considered a small entity for purposes of FRA rules but not a small entity for purposes of STB rules. Not altering the Board's definition of a small business would also perpetuate the incongruous situation of the FRA relying on the Board's classification system as a basis for defining a small business, but the Board not doing so itself.

    For the reasons set forth above, the Board will define small business for the purpose of Regulatory Flexibility Act analyses to mean those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1.

    It is ordered:

    1. For the purpose of Regulatory Flexibility Act analyses, the Board adopts the definition of “small business” to mean those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1.

    2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    3. Notice of this decision will be published in the Federal Register.

    4. This decision is effective on June 30, 2016.

    Decided: June 22, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Commissioner Begeman dissented with a separate expression.

    Tia Delano, Clearance Clerk.

    COMMISSIONER BEGEMAN, dissenting:

    I am a strong proponent of the notice and comment process and find it especially important given the Board's extreme ex parte communication restrictions. So when the only comments received are from the stakeholders most affected, and those stakeholders express strong opposition to a Board proposal, I think we are obligated to carefully consider the concerns expressed and reassess the wisdom of our approach. Upon doing so here, I have concluded this proposal should be withdrawn.

    The American Short Line and Regional Railroad Association (ASLRRA), which represents 550 Class II and Class III rail carriers across the country, filed in strong opposition to the Board's July 2013 proposal to alter its small entity definition for Regulatory Flexibility Act (RFA) purposes. ASLRRA argued that the Board's proposal to use revenue rather than number of employees (the measure developed by the Small Business Administration that agencies can use to comply with the RFA) would effectively lump all Class II carriers with Class I carriers for RFA purposes, an unreasonable outcome given the significant differences between those carrier types. ASLRRA further argued that the Board's proposal would be “detrimental to Class II carriers.” I find ASLRRA's concerns alarming.

    I am not convinced that the action the Board is taking today is necessary or somehow worth the potential harms described by ASLRRA. After all, the majority's decision does not dispute ASLRRA's claims. It appears the driving factor in this decision is the majority's desire to create “consistency” with the Federal Railroad Administration. While consistency may be fine, it certainly is not a very compelling reason since the two agencies have used different small business definitions for 13 years without issue.

    There are a host of stale proceedings piled up at the Board and I am all for the Chairman moving the docket. But if (after three years) the majority was merely going to dismiss the only comment received from representatives of the parties affected, there was no real point in the Board inviting comment in the first place. I dissent.

    [FR Doc. 2016-15437 Filed 6-29-16; 8:45 am] BILLING CODE 4915-01-P
    81 126 Thursday, June 30, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 305 [Docket No. APHIS-2013-0081] RIN 0579-AD90 Standardizing Phytosanitary Treatment Regulations: Approval of Cold Treatment and Irradiation Facilities; Cold Treatment Schedules; Establishment of Fumigation and Cold Treatment Compliance Agreements AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    We are proposing to amend the phytosanitary treatment regulations to establish generic criteria that would allow for the approval of new cold treatment facilities in the Southern and Western States of the United States. These criteria, if met, would allow us to approve new cold treatment facilities without rulemaking and facilitate the importation of fruit requiring cold treatment while continuing to provide protection against the introduction of pests of concern into the United States. We are also proposing to amend the fruit cutting and inspection requirements in the cold treatment regulations in order to expand cutting and inspection to commodities that have been treated for a wider variety of pests of concern. This action would provide for a greater degree of phytosanitary protection. We are also proposing to add requirements concerning the establishment of compliance agreements for all entities that operate fumigation facilities. Finally, we are proposing to harmonize language concerning State compliance with facility establishment and parameters for the movement of consignments from the port of entry or points of origin in the United States to the treatment facility in the irradiation treatment regulations with proposed language in the cold treatment regulations. These actions would serve to codify and make enforceable existing procedures concerning compliance agreements for these facilities.

    DATES:

    We will consider all comments that we receive on or before August 29, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0081.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2013-0081, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0081 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Mr. David B. Lamb, Senior Regulatory Policy Specialist, IRM, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 851-2103.

    SUPPLEMENTARY INFORMATION:

    Background

    The phytosanitary treatments regulations in 7 CFR part 305 set out general requirements for certifying or approving treatment facilities and for performing treatments listed in the Plant Protection and Quarantine (PPQ) Treatment Manual 1 for fruits, vegetables, and other articles to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States. Within part 305, § 305.6 (referred to below as the regulations) sets out requirements for treatment procedures, monitoring, facilities, and enclosures needed for performing sustained refrigeration (cold treatment) sufficient to kill certain insect pests associated with imported fruits and vegetables and with regulated articles moved interstate from quarantined areas within the United States. Under the regulations, all domestic facilities used to provide cold treatment for these articles must operate under a compliance agreement with the Animal and Plant Health Inspection Service (APHIS) and be certified as capable of delivering required cold treatment and handling articles to prevent reinfestation of treated articles. An inspector 2 monitors all domestic treatments. The regulations require safeguards to prevent the escape of pests during transportation to and while at the facility. These include, but are not limited to, inspections, precooling, and physical separation of untreated and treated articles. The facility must maintain records of all treatments and must periodically be recertified. These conditions have allowed for the safe, effective treatment of many different kinds of articles, as is demonstrated by the track record of cold treatment facilities currently operating in the United States and other countries.

    1 The PPQ Treatment Manual is available at (http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf).

    2 Section 305.1 defines an inspector as “Any individual authorized by the Administrator of APHIS or the Commissioner of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this part.”

    Cold Treatment in Southern and Western States

    In § 305.6, paragraph (b) allows cold treatment facilities to be located in the area north of 39° latitude and east of 104° longitude. When the cold treatment regulations were established, areas outside of these coordinates were identified as having conditions favorable for the establishment of exotic fruit flies. The location restrictions served as an additional safeguard against the possibility that fruit flies could escape from imported articles prior to treatment and become established in the United States.

    Although the regulations initially did not allow cold treatment facilities to be located in Southern and Western States, APHIS periodically received requests for exemptions. In response to these requests, APHIS conducted site-specific evaluations for these locations and determined that regulated articles can be safely transported to, handled in, and treated by specific cold treatment facilities outside of the areas established by the regulations under special conditions to mitigate the possible escape of pests of concern. Over the years, APHIS has amended its regulations to allow cold treatment facilities to be located at the maritime ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; Hartsfield-Atlanta International Airport, Atlanta, GA; and, most recently, MidAmerica St. Louis Airport, Mascoutah, IL.

    In addition to those requests, certain importers of fruits and vegetables have shown considerable interest in locating cold treatment facilities in places that are not currently allowed under the regulations (e.g., Miami and Port Everglades, FL, and Savannah, GA).

    Proposed Changes to the Regulations Governing Cold Treatment Facilities in Southern and Western States

    In anticipation of future requests to locate additional cold treatment facilities in the Southern and Western States of the United States, we are proposing to establish generic phytosanitary criteria that would replace the current location-specific criteria for cold treatment facilities at the ports mentioned previously and would also apply to new cold treatment facilities in the Southern and Western States of the United States. The proposed criteria are similar to those successfully used for the approval of new irradiation facilities in the Southern United States found in § 305.9 of the regulations, as untreated fruit moving to irradiation facilities in those States presents the same pest risks as untreated fruit moving to cold treatment facilities. We would not require currently approved cold treatment facilities in Southern and Western States to immediately meet the proposed generic criteria since the specific requirements presently in place for each facility would continue to provide adequate phytosanitary protection. Nevertheless, we would require currently approved facilities to meet the new generic requirements as each comes up to renew its required recertification, which takes place at 3 year intervals or at other times as determined by APHIS based on treatments performed, commodities handled, and operations conducted at the facility.

    All cold treatment facilities in the Southern and Western States would be required to meet the current criteria for cold treatment facilities north of 39° latitude and east of 104° longitude, in addition to the proposed generic criteria. These generic criteria would be supplemented as necessary by additional measures, which would be described in a compliance agreement (discussed below), based on pests of concern associated with specific regulated articles to be treated at the facility and the location of the specific facility. Facilities that meet these requirements could then be approved for the treatment of regulated articles that are imported, moved interstate from Hawaii or U.S. territories, or moved interstate from areas quarantined for certain pests of concern.

    Using APHIS-approved cold treatment facilities located in the United States, rather than those located outside of the United States, to treat imported articles offers the advantage of greater ease of monitoring treatment. Using generic criteria, rather than site by site approval, for future cold treatment facilities located in Southern and Western States would make explicit our criteria for approving these facilities while eliminating the need to undertake rulemaking in order to approve new facilities.

    To support this action, we have prepared a treatment evaluation document (TED) entitled “Phytosanitary Criteria for Establishing Locations for Cold Treatment Facilities in Areas of the United States Currently Not Allowed.” Copies of the TED may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT and may be viewed on the Internet on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and the location and hours of the reading room). In the TED, we concluded that the pest risks presented by cold treatment facilities in the Southern and Western States can be adequately managed through the use of special conditions to mitigate the possible escape of pests of concern.

    We are therefore proposing to amend the regulations by replacing the current specific criteria for cold treatment facilities at the maritime ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; MidAmerica St. Louis Airport, Mascoutah, IL; and Hartsfield-Atlanta International Airport, Atlanta, GA, in § 305.6 with generic phytosanitary criteria for any cold treatment facility in a Southern or Western State. The proposed generic criteria would have to be followed in addition to the current requirements that apply to all cold treatment facilities. The proposed generic criteria for new facilities in the Southern and Western States are based on the current conditions for allowing cold treatment facilities at the maritime ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; MidAmerica St. Louis Airport, Mascoutah, IL; and Hartsfield-Atlanta International Airport, Atlanta, GA.

    In proposed paragraph (b)(1)(i) of § 305.6, we would require that prospective facility operators submit a detailed layout of the facility site and its location to APHIS. APHIS would evaluate plant health risks based on the proposed location and layout of the facility site before a facility is approved. APHIS would only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from the port of entry or points of origin in the United States. Proposed paragraph (b)(1)(ii) of § 305.6 provides that the State government of the Southern or Western State in which the facility would be located would also have to concur in writing with the location of the cold treatment facility; if it does not concur, the State government must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, then APHIS and the State would need to agree on a strategy to resolve such risks before APHIS approved the facility. If the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.

    Under this proposal, paragraphs (b)(1)(iii) and (b)(1)(iv) of § 305.6 would provide, respectively, that untreated articles may not be removed from their packaging prior to treatment under any circumstances, and that facilities must have contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles if the facility were unable to properly treat a shipment. Alternatively, facilities could be approved to apply alternative treatments, if available, such as fumigation with methyl bromide or irradiation.

    Proposed paragraph (b)(1)(v) of § 305.6 would allow a cold treatment facility to treat only those articles that are approved by APHIS for treatment at that facility. If, during the approval process for regulated articles, APHIS determines that additional safeguards (such as trapping for specific pests using specific lures, inspection for any pests of concern not mitigated by cold treatment or to monitor pest population in the consignment, or applying required treatments in addition to cold treatment) are deemed necessary during transport or while at a specific cold treatment facility, the compliance agreement for the facility would be amended accordingly.

    Under proposed paragraph (b)(1)(vi) of § 305.6, APHIS, the importer, and the cold treatment facility would need to agree on arrangements for treatment before the departure of a consignment from its country of origin or point of origin in the United States. This would ensure that untreated shipments of regulated articles arriving at the facility would not have to wait for an extended period of time for cold treatment. The expeditious treatment of the articles would minimize the risk of pests of concern maturing in fruits, vegetables, or other articles. In addition, we are proposing that APHIS and the cold treatment facility would have to agree in advance about all parameters, such as time, routing, and conveyance, by which every consignment would move from the port of entry or points of origin in the United States to the cold treatment facility. In most instances, this would be determined by establishing the shortest route between the port of entry or points of origin in the United States and the cold treatment facility that does not include an area that contains host material for pests of concern during the time of year that the host material is most abundant in the region. This route would then be used at all times of the year, since an area that is free of host material during the time of year that it is most abundantly grown, would be unlikely to grow host material at any other time of year. This predetermined route would reduce the amount of time that a shipment would have to wait before undergoing cold treatment and would reduce the risk that any pests of concern in the shipments would come into contact with host material en route to the cold treatment facility. If APHIS and the cold treatment facility cannot reach agreement in advance on all parameters by which consignments would move from the port of entry or points of origin in the United States then no consignments may be moved to that facility until an agreement has been reached.

    We are also proposing to require in paragraph (b)(1)(vii) of § 305.6 that the conveyance transporting the regulated article to the cold treatment facility would need to be refrigerated using motorized refrigeration equipment to a temperature that would minimize the mobility of the pests of concern for the article. Fruits and vegetables requiring cold treatment are typically transported in refrigerated conveyances in order to preserve freshness of the commodity and prevent development of toxins that may affect their flavor.

    Proposed paragraph (b)(1)(viii) of § 305.6 would stipulate that the cold treatment facility would be required to apply all required post-treatment safeguards as required by the compliance agreement to provide phytosanitary protection (e.g., larger consignments broken up into smaller boxes following treatment and those treated articles subsequently packaged in pest-proof containers per an agreement between the treatment facility and the importer) before releasing the articles to the importer or the importer's designated representative or before moving the articles interstate. Paragraph (b)(1)(ix) would require the facility to remain locked when not in operation. These requirements are intended to minimize the risk of cross-contamination between treated and untreated articles and to prevent unauthorized persons access to the facility, which may result in the unintended entry of pests of concern.

    The current regulations for cold treatment facilities at the maritime ports of Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; and Hartsfield-Atlanta International Airport, Atlanta, GA, require blacklight or sticky paper to be used within the cold treatment facility and other trapping methods to be used within the 4 square miles surrounding the facility. Proposed paragraph (b)(1)(x) of § 305.6 requires, in addition, that the facility maintain and provide APHIS an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility. APHIS will use this information to determine if any host material of concern is present. To help prevent establishment of pests in the unlikely event that they escape despite the required precautions, the presence of any host material within 4 square miles of the facility would then necessitate specific trapping or other pest monitoring activities to help prevent establishment of any escaped pests of concern, which would be funded by the facility and described in the compliance agreement. All trapping and pest monitoring activities would need to be approved by APHIS.

    The cold treatment facility would also need to have a pest management plan within the facility, which would cover such topics as monitoring for pests in storage and treatment areas and the actions to be taken in the event of the detection of pests within the facility. Cold treatment facilities would also be required to comply with any additional requirements that APHIS might require for a particular facility based on local conditions and any other risk factors of concern. This could include inspection for certain pests for which cold treatment is not an approved treatment, such as mites and scales. Proposed paragraph (b)(1)(xi) of § 305.6 would require that facilities comply with any additional APHIS requirements including, but not limited to, the use of pest-proof packaging and container seals. Such additional requirements would be contained in a compliance agreement. Compliance agreements are required for all facilities in paragraph (f) of § 305.6, which we are proposing to amend as detailed below under the heading “Cold Treatment Facilities in All the United States.”

    We also propose to add language specifying the way in which domestically produced fruit would be safeguarded when moving interstate from areas within the United States that are quarantined for fruit flies. In proposed paragraph (b)(2) of § 305.6, we would stipulate that, for articles that are moved interstate from areas quarantined for fruit flies, cold treatment facilities would be permitted to be located within or outside of the quarantined area. If the articles are treated outside the quarantined area, they would have to be accompanied to the facility by a limited permit issued in accordance with 7 CFR 301.32-5(b) of our fruit fly regulations and must be moved in accordance with any safeguards determined appropriate by APHIS. These additions are necessary because the current cold treatment regulations do not address interstate movement and this addition would serve to clarify our requirements.

    Cold Treatment Facilities in All the United States

    In paragraph (a) of § 305.6, we are proposing to expand our requirements for initial facility certification and recertification. A prospective facility would only be certified if the Administrator determines that the location of that facility is operationally feasible insofar as the Federal agencies involved in its operation and oversight have adequate resources to conduct the necessary operations at the facility, that the pest risks can be managed at that location, and that the facility meets all criteria for approval. Facility recertification would continue to be required at 3 year intervals or at other times as determined by APHIS based on treatments performed, commodities handled, and operations conducted at the facility.

    Currently, as part of the approval process for cold treatment facilities, APHIS considers whether a proposed cold treatment facility is located within the local commuting area for APHIS employees so that they will be able to perform the oversight and monitoring activities required by § 305.6. When imported articles are to be treated at a facility, APHIS also considers whether the facility is located within an area over which the U.S. Department of Homeland Security (DHS) 3 has customs authority for enforcement purposes. We are proposing to amend paragraph (e) of § 305.6, which contains requirements for monitoring and interagency agreements for cold treatment facilities, to require all cold treatment facilities to be located within the local commuting area for APHIS employees 4 for oversight and monitoring purposes. For facilities treating imported articles, we are also proposing that the location of the facility would have to be within an area over which DHS has customs authority for enforcement purposes.

    3 The U.S. Department of Homeland Security is assigned authority to accept entries of merchandise, to collect duties, and to enforce the provisions of the customs and navigation laws in force.

    4 Commuting area would be determined by contacting the local APHIS Plant Protection and Quarantine office, State Plant Health Director, located in each State, Eastern Regional Office, or Western Regional Office.

    The regulations in § 305.6(d)(15) currently stipulate that an inspector will sample and cut fruit from consignments that have been cold treated for Mediterranean fruit fly (Medfly) in order to monitor treatment effectiveness. We are proposing to expand the fruit cutting and inspection requirements in order to state that consignments treated for other fruit flies and pests of concern may be subject to sampling and cutting. This would create an extra level of phytosanitary security for cold treated shipments.

    If the national plant protection organization cuts and inspects the commodity in the exporting country as part of a biometric sampling protocol that we have approved, however, we are proposing that we may waive this requirement. In such instances, inspection and cutting would be duplicative.

    Paragraph (f) of § 305.6 currently requires that cold treatment facilities located in the United States must enter into a compliance agreement with APHIS. These compliance agreements set out requirements for equipment, temperature, circulation, and other operational requirements for performing cold treatment to ensure that treatments are administered properly. They also allow for inspection by APHIS in order to monitor compliance with those requirements. Paragraph (g) contains requirements for facilities located outside the United States, which may only operate under a bilateral workplan. A bilateral workplan may contain some of the same requirements as a domestic compliance agreement, with the potential addition of trust fund agreement information regarding payment of the salaries and expenses of APHIS employees on site. We are proposing to combine these requirements into a single paragraph that would set out the requirements that both domestic and foreign cold treatment facilities and importers would have to meet in order to enter into a compliance agreement with APHIS. We are also proposing to add language regarding compliance agreements required in association with articles moved interstate from Hawaii and the U.S. territories. These requirements are consistent with those required for importers shipping articles to irradiation facilities located in the southern United States and are necessary to ensure that consignments of fruits or vegetables are not diverted to any destination other than an approved treatment facility, to prevent escape of plant pests from the articles to be treated during their transit from the port of first arrival into the United States to the approved cold treatment facility, and to ensure that APHIS is aware of the time, route, and conveyance by which consignments will move to the treatment facility.

    Fumigation Treatment and Compliance Agreements

    We are proposing to add a section to the regulations concerning fumigation treatment found in § 305.5 to provide that both domestic and foreign fumigation treatment facilities and importers enter into a compliance agreement with APHIS, and agree to comply with any requirements deemed necessary by the Administrator. Although we currently enter into compliance agreements with domestic chemical treatment facilities and have done so for more than 20 years, the addition of a requirement for compliance agreements to the fumigation treatment regulations will add a degree of enforceability to the terms of those agreements in addition to codifying our existing practices.

    We are also proposing to add a requirement concerning establishment of a compliance agreement, or an equivalent agreement such as a workplan agreement, for those fumigation treatment facilities located outside the United States. Such facilities had not been previously required to sign such an agreement to treat articles imported into the United States under the fumigation treatment regulations. The proposed requirements would be identical to those found in the sections of the treatment regulations concerning cold treatment and heat treatment, and would be added in a new paragraph (c) in § 305.5.

    Irradiation Treatment and State and Facility Compliance

    We are proposing to harmonize the language concerning State compliance with irradiation treatment facility establishment and facility agreements found in § 305.9 with the proposed language concerning this compliance in the cold treatment regulations.

    Section 305.9(a)(1)(ii) states that the government of the State in which the facility is to be located must concur in writing with the establishment of the facility or, if it does not concur, must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, APHIS and the State will agree on a strategy to resolve the pest risk concerns prior to APHIS approval. We would add that, if the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.

    Section 305.9(a)(1)(vi) states that APHIS and the irradiation treatment facility must agree on all parameters, such as time, routing, and conveyance, by which the consignment will move from the port of entry or points of origin in the United States to the treatment facility. We are proposing to clarify that if APHIS and the facility cannot reach agreement in advance on these parameters then no consignments may be moved to that facility until an agreement has been reached.

    Definitions

    We are also proposing to add a definition for “treatment facility” as follows to the regulations in § 305.1: “Any APHIS-certified place, warehouse, or approved enclosure where a treatment is conducted to mitigate a plant pest.” This is intended to provide clarity and guidance in the regulations as the term is included in the proposed additions to the regulations.

    Treatment Schedules

    Finally, the current regulations in § 305.2, paragraph (b), state that approved treatment schedules are set out in the PPQ Treatment Manual. Section 305.3 sets forth a process for adding, revising, or removing treatment schedules in the PPQ Treatment Manual. Paragraph (a)(1) provides that removal of a treatment schedule is subject to public comment.

    We are proposing to remove a cold treatment schedule from the PPQ Treatment Manual. Treatment schedule T107-f was authorized for use on shipments of Ya pears (Pyrus x bretscheideri) from APHIS-authorized areas within Shandong Province, China, in order to provide phytosanitary protection against the Oriental fruit fly (Bactrocera dorsalis). Based on Oriental fruit fly trapping results and climatological and biological considerations, we have determined that cold treatment of Ya pears is no longer necessary and are therefore proposing to remove the treatment schedule. All other requirements regarding the importation of Ya pears would remain in place.

    Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

    In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

    We are proposing to establish general criteria for new cold treatment facilities in the Southern and Western United States. These general criteria would be supplemented as necessary by additional measures, which would be described in the facility's compliance agreement, based on pests of concern associated with specific regulated articles to be treated at the facility and the location of the specific facility.

    We do not anticipate that the proposed rule would have an economic impact, since it would simply set forth the general criteria, not approve any new facilities.

    Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

    Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2013-0081. Please send a copy of your comments to: (1) APHIS, using one of the methods described under ADDRESSES at the beginning of this document, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250.

    APHIS is proposing to amend the phytosanitary treatment regulations to establish generic criteria that would allow for the approval of new cold treatment facilities in the Southern and Western States of the United States. These criteria, if met, would allow APHIS to approve new cold treatment facilities without rulemaking and facilitate the importation of fruit requiring cold treatment while continuing to provide protection against the introduction of pests of concern into the United States. APHIS is also proposing to amend the fruit cutting and inspection requirements in the cold treatment regulations in order to expand cutting and inspection to commodities that have been treated for a wider variety of pests of concern. This action would provide for a greater degree of phytosanitary protection. Finally, APHIS is proposing to add requirements concerning the establishment of compliance agreements for those entities that operate fumigation facilities. This action would serve to codify and make enforceable existing procedures concerning compliance agreements for these facilities.

    Implementing this rule will require the completion of compliance agreements, facility certification, detailed layouts of facilities and maps of the surrounding areas, State concurrence letters, limited permits, and contingency plans.

    We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

    (1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

    (2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

    Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.5 hours per response.

    Respondents: NPPO, facility operators, importers, and State governments.

    Estimated annual number of respondents: 15.

    Estimated annual number of responses per respondent: 3.

    Estimated annual number of responses: 42.

    Estimated total annual burden on respondents: 21 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

    Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    List of Subjects in 7 CFR Part 305

    Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements.

    Accordingly, we propose to amend 7 CFR part 305 as follows:

    PART 305—PHYTOSANITARY TREATMENTS 1. The authority citation for part 305 continues to read as follows: Authority:

    7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. Section 305.1 is amended by adding, in alphabetical order, a definition for treatment facility to read as follows:
    § 305.1 Definitions.

    Treatment facility. Any APHIS-certified place, warehouse, or approved enclosure where a treatment is conducted to mitigate a plant pest.

    3. Section 305.5 is amended by redesignating paragraph (c) as paragraph (d) and adding a new paragraph (c).

    The addition reads as follows:

    § 305.5 Chemical treatment requirements.

    (c) Compliance agreements. Any person who conducts a fumigation or operates a facility where fumigation is conducted for phytosanitary purposes must sign a compliance agreement with APHIS.

    (1) Fumigation treatment facilities treating imported articles. (i) Compliance agreements with importers and facility operators for fumigation in the United States. If fumigation treatment of imported articles is conducted in the United States, both the importer and the fumigation treatment facility operator or the person who conducts fumigation must sign compliance agreements with APHIS. In the importer compliance agreement, the importer must agree to comply with any additional requirements found necessary by APHIS to ensure the shipment is not diverted to a destination other than an approved treatment facility and to prevent escape of plant pests from the articles to be treated during their transit from the port of first arrival to the fumigation treatment facility in the United States. In the facility compliance agreement, the fumigation facility operator or the person who conducts fumigation must agree to comply with the requirements of this section and any additional requirements found necessary by APHIS to prevent the escape of any pests of concern that may be associated with the articles to be treated.

    (ii) Compliance agreements with fumigation treatment facilities outside the United States. If fumigation treatment of imported articles is conducted outside the United States, the fumigation treatment facility operator or the person who conducts the fumigation must sign a compliance agreement or an equivalent agreement with APHIS and the national plant protection organization (NPPO) of the country in which the facility is located. In this agreement, the fumigation treatment facility operator or person conducting the fumigation must agree to comply with the requirements of this section, and the NPPO of the country in which the facility is located must agree to monitor that compliance and to inform the Administrator of any noncompliance.

    (2) Fumigation treatment facilities treating articles moved interstate from Hawaii and U.S. territories. Fumigation treatment facilities treating articles moved interstate from Hawaii and U.S. territories must complete a compliance agreement with APHIS as provided in § 318.13-3(d) of this chapter.

    (3) Fumigation treatment facilities treating articles moved interstate from areas quarantined for fruit flies. Fumigation treatment facilities treating articles moved interstate from areas quarantined for fruit flies must complete a compliance agreement with APHIS as provided in § 301.32-6 of this chapter.

    (4) Fumigation treatment facilities treating articles moved interstate from areas quarantined for Asian citrus psyllid. Fumigation treatment facilities treating articles moved interstate from areas quarantined only for Asian citrus psyllid, and not for citrus greening, must complete a compliance agreement with APHIS as provided in § 301.76-8 of this chapter.

    4. Section 305.6 is amended as follows: a. In the introductory text of paragraph (a), by adding two new sentences before the last sentence. b. By redesignating paragraph (a)(2) as paragraph (a)(3). c. By adding new paragraph (a)(2). d. By revising paragraph (b). e. By revising paragraph (d)(15). f. In paragraph (e), by adding two new sentences after the last sentence. g. By revising paragraph (f). h. By removing paragraphs (g) and (h).

    The additions and revisions read as follows:

    § 305.6 Cold treatment requirements.

    (a) * * * A facility will only be certified or recertified if the Administrator determines that the location of the facility is such that those Federal agencies involved in its operation and oversight have adequate resources to conduct the necessary operations at the facility, that the pest risks can be managed at that location, and that the facility meets all criteria for approval. Other agencies that have regulatory oversight and requirements must concur in writing with the establishment of the facility prior to APHIS approval. * * *

    (2) Be capable of preventing the escape and spread of pests while regulated articles are at the facility; and

    (b)(1) Location of facilities. Where certified cold treatment facilities are available, an approved cold treatment may be conducted for any imported regulated article either prior to shipment to the United States or in the United States. For any regulated article moved interstate from Hawaii or U.S. territories, cold treatment may be conducted either prior to movement to the mainland United States or in the mainland United States. Cold treatment facilities may be located in any State on the mainland United States. For cold treatment facilities located in the area south of 39° latitude and west of 104° longitude, the following additional conditions must be met:

    (i) Prospective facility operators must submit a detailed layout of the facility site and its location to APHIS. APHIS will evaluate plant health risks based on the proposed location and layout of the facility site. APHIS will only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from the port of entry or points of origin in the United States.

    (ii) The government of the State in which the facility is to be located must concur in writing with the location of the facility or, if it does not concur, must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, APHIS and the State must agree on a strategy to resolve the pest risk concerns prior to APHIS approval. If the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.

    (iii) Untreated articles may not be removed from their packaging prior to treatment under any circumstances.

    (iv) The facility must have contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles if the facility is unable to properly treat a shipment.

    (v) The facility may only treat articles approved by APHIS for treatment at the facility. Approved articles will be listed in the compliance agreement required in paragraph (f) of this section.

    (vi) Arrangements for treatment must be made before the departure of a consignment from its port of entry or points of origin in the United States. APHIS and the facility must agree on all parameters, such as time, routing, and conveyance, by which the consignment will move from the port of entry or points of origin in the United States to the treatment facility. If APHIS and the facility cannot reach agreement in advance on these parameters then no consignments may be moved to that facility until an agreement has been reached.

    (vii) Regulated articles must be conveyed to the facility in a refrigerated (via motorized refrigeration equipment) conveyance at a temperature that minimizes the mobility of the pests of concern for the article.

    (viii) The facility must apply all post-treatment safeguards required for certification under paragraph (a) of this section before releasing the articles.

    (ix) The facility must remain locked when not in operation.

    (x) The facility must maintain and provide APHIS with an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility. Proximity of host material to the facility will necessitate trapping or other pest monitoring activities, funded by the facility, to help prevent establishment of any escaped pests of concern, as approved by APHIS; these activities will be listed in the compliance agreement required in paragraph (f) of this section. The treatment facility must have a pest management plan within the facility.

    (xi) The facility must comply with any additional requirements including, but not limited to, the use of pest-proof packaging and container seals, that APHIS may require to prevent the escape of plant pests during transport to and from the cold treatment facility itself, for a particular facility based on local conditions, and for any other risk factors of concern. These activities will be listed in the compliance agreement required in paragraph (f) of this section.

    (2) For articles that are moved interstate from areas quarantined for fruit flies, cold treatment facilities may be located either within or outside of the quarantined area. If the articles are treated outside the quarantined area, they must be accompanied to the facility by a limited permit issued in accordance with § 301.32-5(b) of this chapter and must be moved in accordance with any safeguards determined to be appropriate by APHIS.

    (d) * * *

    (15) An inspector will sample and cut fruit from each consignment after it has been cold treated to monitor treatment effectiveness. If a single live pest of concern in any stage of development is found, the consignment will be held until an investigation is completed and appropriate remedial actions have been implemented. If APHIS determines at any time that the safeguards contained in this section do not appear to be effective against the pests of concern, APHIS may suspend the importation of fruits from the originating country and conduct an investigation into the cause of the deficiency. APHIS may waive the sampling and cutting requirement of this paragraph, provided that the national plant protection organization of the exporting country has conducted such sampling and cutting in the exporting country as part of a biometric sampling protocol approved by APHIS.

    (e) * * * Facilities must be located within the local commuting area for APHIS employees for inspection purposes. Facilities treating imported articles must also be located within an area over which the U.S. Department of Homeland Security is assigned authority to accept entries of merchandise, to collect duties, and to enforce the provisions of the customs and navigation laws in force.

    (f) Compliance agreements. Any person who operates a facility where cold treatment is conducted for phytosanitary purposes must sign a compliance agreement with APHIS.

    (1) Compliance agreements with importers and facility operators for cold treatment in the United States. If cold treatment of imported articles is conducted in the United States, both the importer and the operator of the cold treatment facility or the person who conducts the cold treatment must sign compliance agreements with APHIS. In the importer compliance agreement, the importer must agree to comply with any additional requirements found necessary by APHIS to ensure the shipment is not diverted to a destination other than an approved treatment facility and to prevent escape of plant pests from the articles to be treated during their transit from the port of first arrival to the cold treatment facility in the United States. In the facility compliance agreement, the facility operator or person conducting the cold treatment, must agree to comply with the requirements of this section and any additional requirements found necessary by APHIS to prevent the escape of any pests of concern that may be associated with the articles to be treated.

    (2) Compliance agreements with cold treatment facilities outside the United States. If cold treatment of imported articles is conducted outside the United States, the operator of the cold treatment facility must sign a compliance agreement or an equivalent agreement with APHIS and the NPPO of the country in which the facility is located. In this agreement, the facility operator must agree to comply with the requirements of this section, and the NPPO of the country in which the facility is located must agree to monitor that compliance and inform the Administrator of any noncompliance.

    (3) Cold treatment facilities treating articles moved interstate from Hawaii and U.S. territories. Cold treatment facilities treating articles moved interstate from Hawaii and the U.S. territories must complete a compliance agreement with APHIS as provided in § 318.13-3(d) of this chapter.

    5. Section 305.9 is amended: a. By revising paragraph (a)(1)(ii). b. By revising paragraph (a)(1)(vi).

    The revisions read as follows:

    § 305.9 Irradiation treatment requirements.

    (a) * * *

    (1) * * *

    (ii) The government of the State in which the facility is to be located must concur in writing with the location of the facility or, if it does not concur, must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, APHIS and the State must agree on a strategy to resolve the pest risk concerns prior to APHIS approval. If the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.

    (vi) Arrangements for treatment must be made before the departure of a consignment from its port of entry or points of origin in the United States. APHIS and the facility must agree on all parameters, such as time, routing, and conveyance, by which the consignment will move from the port of entry or points of origin in the United States to the treatment facility. If APHIS and the facility cannot reach agreement in advance on these parameters then no consignments may be moved to that facility until an agreement has been reached.

    Done in Washington, DC, this 24th day of June 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-15568 Filed 6-29-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1260 [No. AMS-LPS-15-0084] Amendment to the Beef Promotion and Research Rules and Regulations; Withdrawal AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Withdrawal of proposed rule.

    SUMMARY:

    This document informs the public that the Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture (USDA) is withdrawing the proposed rule published in the Federal Register (81 FR 14022) on March 16, 2016, regarding the Beef Promotion and Research Order (Order) established under the Beef Promotion and Research Act of 1985 (Act). The proposed rule is being withdrawn because of an error noted in the formula determining the assessment rate on imported veal carcass weight and to provide the calculation to establish the assessment rate on importer veal and veal products.

    DATES:

    The proposed rule published on March 26, 2016 (81 FR 14022), is withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Michael Dinkel, Agricultural Marketing Specialist; Research and Promotion Division, Room 2610-S; Livestock, Poultry, and Seed Program; AMS, USDA, STOP 0249; 1400 Independence Avenue SW., Washington, DC 20250-0249; facsimile 202/720-1125; telephone 301/352-7497, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The Act authorized the establishment of a national beef promotion and research program. The final Order was published in the Federal Register (51 FR 21632) on July 18, 1986, and the collection of assessments began on October 1, 1986. The program is administered by the Cattlemen's Beef Promotion and Research Board, appointed by the Secretary of Agriculture from industry nominations, and composed of 100 cattle producers and importers. The program is funded by a $1-per-head assessment on producer marketing of cattle in the U.S. and on imported cattle, as well as an equivalent amount on imported beef and beef products. The U.S. Customs and Border Protection Service collects assessments from importers.

    On March 16, 2016, AMS published in the Federal Register (81 FR 14022) a proposed rule amending the Order established under the Act to add Harmonized Tariff Schedule (HTS) codes for veal and veal products not currently covered under the Order and to update the carcass weight for imported veal carcasses used to determine the assessment rate for imported veal and veal products.

    Following publication, AMS discovered an error in the carcass weight of imported veal carcasses used to determine the assessment rate for imported veal and veal products. The correct weight used to calculate the assessment rate was published as 151 pounds, but the correct weight is 154 pounds. In addition, the industry recently requested the formula for how the assessment rate for imported veal and veal products is calculated. As a result of both the discovered error and the industry request, AMS is withdrawing the proposed rule and will publish a new proposed rule with the corrected carcass weight and formula.

    Dated: June 17, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-14823 Filed 6-29-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF ENERGY 10 CFR Part 460 Draft Environmental Assessment for Notice of Proposed Rulemaking, “Energy Conservation Standards for Manufactured Housing” With Request for Information on Impacts to Indoor Air Quality AGENCY:

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

    ACTION:

    Notice of availability; request for public comment, and request for information.

    SUMMARY:

    Section 413 of the Energy Independence and Security Act of 2007 (EISA) directs the U.S. Department of Energy (DOE) to establish energy conservation standards for manufactured housing. Section 413 further directs DOE to base its energy conservation standards on the most recent version of the International Energy Conservation Code (IECC) and any supplements to that document, except where DOE finds that the IECC is not cost effective or where a more stringent standard would be more cost effective, based on the impact of the IECC on the purchase price of manufactured housing and on total lifecycle construction and operating costs. On June 17, 2016, DOE published a notice of proposed rulemaking in the Federal Register pertaining to energy efficiency for manufactured housing.

    Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE Office of Energy Efficiency and Renewable Energy (EERE) has prepared a draft environmental assessment (EA) to evaluate the environmental impacts of this proposed action. DOE is seeking public comment on the environmental issues addressed in the EA. In conjunction with issuance of this draft EA for public review and comment, DOE is issuing a request for information that will help it analyze potential impacts on indoor air quality (IAQ) from the proposed energy conservation standards, in particular sealing manufactured homes tighter.

    DATES:

    Comments regarding this draft EA and/or information on IAQ must be received on or before August 15, 2016.

    ADDRESSES:

    Written comments should be sent to Roak Parker at U.S. Department of Energy, 15013 Denver West Parkway, Golden, CO 80401, or by email at [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the draft environmental assessment should be directed to Roak Parker at [email protected] or by telephone at (240) 562-1645. The draft environmental assessment also is available for viewing in the Golden Public Reading Room at: www.energy.gov/node/1840021.

    SUPPLEMENTARY INFORMATION:

    DOE has published a notice of proposed rulemaking in the Federal Register pertaining to energy efficiency for manufactured housing. 81 FR 39756 (June 17, 2016). Pursuant to the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), DOE EERE has prepared a draft environmental assessment (EA) to evaluate the environmental impacts of this proposed action. DOE is seeking public comment on the environmental issues addressed in the EA. In conjunction with issuance of this draft EA for public review and comment, DOE is issuing a request for information that will help it analyze potential impacts on indoor air quality (IAQ) from the proposed energy conservation standards, in particular sealing manufactured homes tighter.

    Statutory Authority: National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.).

    Issued in Golden, CO, on June 21, 2016. Robin L. Sweeney, Director, Environment, Safety and Health Office, Office of Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-15328 Filed 6-29-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF COMMERCE Bureau of the Census 15 CFR Chapter I [Docket Number 160526465-6465-01] Proposed 2020 Census Residence Criteria and Residence Situations AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Proposed criteria and request for comment.

    SUMMARY:

    The Bureau of the Census (U.S. Census Bureau) is providing notification and requesting comment on the proposed “2020 Census Residence Rule and Residence Situations.” In addition, this document contains a summary of comments received in response to the May 20, 2015, Federal Register document, as well as the Census Bureau's responses to those comments. The residence criteria are used to determine where people are counted during each decennial census. Specific residence situations are included with the criteria to illustrate how the criteria are applied.

    DATES:

    To ensure consideration, comments must be received by August 1, 2016.

    ADDRESSES:

    Direct all written comments regarding the proposed “2020 Census Residence Rule and Residence Situations” to Karen Humes, Chief, Population Division, U.S. Census Bureau, Room 6H174, Washington, DC 20233; or Email [POP.2020.Residence [email protected]].

    FOR FURTHER INFORMATION CONTACT:

    Population and Housing Programs Branch, U.S. Census Bureau, 6H185, Washington, DC 20233, telephone (301) 763-2381; or Email [POP.2020 [email protected]].

    SUPPLEMENTARY INFORMATION: A. Background

    The U.S. Census Bureau is committed to counting every person in the 2020 Census once, only once, and in the right place. The fundamental reason that the decennial census is conducted is to fulfill the Constitutional requirement (Article I, Section 2) to apportion the seats in the U.S. House of Representatives among the states. Thus, for a fair and equitable apportionment, it is crucial that the Census Bureau counts everyone in the right place during the decennial census.

    The residence criteria are used to determine where people are counted during each decennial census. Specific residence situations are included with the criteria to illustrate how the criteria are applied.

    1. The Concept of Usual Residence

    The Census Act of 1790 established the concept of “usual residence” as the main principle in determining where people were to be counted, and this concept has been followed in all subsequent censuses. “Usual residence” has been defined as the place where a person lives and sleeps most of the time. This place is not necessarily the same as a person's voting residence or legal residence.

    Determining usual residence is straightforward for most people. However, given our nation's wide diversity in types of living arrangements, the concept of usual residence has a variety of applications. Some examples include people experiencing homelessness, people with a seasonal/second residence, people in prisons, people in the process of moving, people in hospitals, children in shared custody arrangements, college students, live-in employees, military personnel, and people who live in workers' dormitories.

    Applying the usual residence concept to real living situations means that people will not always be counted at the place where they happen to be staying on Census Day (April 1, 2020) or at the time they complete their census questionnaire. For example, some of the ways that the Census Bureau applies the concept of usual residence include the following:

    • People who are away from their usual residence while on vacation or on a business trip on Census Day are counted at their usual residence.

    • People who live at more than one residence during the week, month, or year are counted at the place where they live most of the time.

    • People without a usual residence are counted where they are staying on Census Day.

    • People in certain types of group facilities 1 on Census Day are counted at the group facility.

    1 In this document, “group facilities” (referred to also as “group quarters” (GQ)) are defined as places where people live or stay in group living arrangements, which are owned or managed by an entity or organization providing housing and/or services for the residents.

    2. Reviewing the “2020 Census Residence Rule and Residence Situations”

    Every decade, the Census Bureau undertakes a review of the “Residence Rule and Residence Situations” to ensure that the concept of usual residence is interpreted and applied as intended in the decennial census, and that these interpretations are consistent with the intent of the Census Act of 1790, which was authored by a Congress that included many of the framers of the U.S. Constitution and directed that people were to be counted at their usual residence. This review also serves as an opportunity to identify new or changing living situations resulting from societal change, and to create or revise the guidance regarding those situations in a way that is consistent with the concept of usual residence.

    This decade, as part of the review, the Census Bureau requested public comment on the “2010 Census Residence Rule and Residence Situations” through the Federal Register (80 FR 28950) on May 20, 2015, to allow the public to recommend any changes they would like to be considered for the 2020 Census. The Census Bureau received 252 comment submission letters or emails that contained 262 total comments. (Some comment submissions included comments or suggestions on more than one residence situation.) A summary of these comments and the Census Bureau's responses are included in section B of this document.

    In addition to the Census Bureau's responses to comments that are described in section B of this document, section C provides a summary of each of the proposed changes to where people would be counted in the 2020 Census compared to the 2010 Census. These proposed changes are based on the consideration of public comments received, as well as an internal review of the criteria and situations.

    The Census Bureau is requesting public comment on the proposed “2020 Census Residence Rule and Residence Situations”, as listed in section D of this document. The Census Bureau is requesting public comment on the proposed “2020 Census Residence Rule and Residence Situations,” as listed in section D of this document. The Census Bureau anticipates publishing the final “2020 Census Residence Rule and Residence Situations” by the end of 2016. At that time, the Census Bureau will also respond to the comments received regarding the proposed “2020 Census Residence Rule and Residence Situations.”

    B. Summary of Comments Received in Response to a Review of the “2010 Census Residence Rule and Residence Situations”

    On May 20, 2015, the Census Bureau published a document in the Federal Register asking for public comment on the “2010 Census Residence Rule and Residence Situations.” Of the 262 comments received, 162 pertained to where prisoners 2 are counted, and 87 pertained to where military personnel overseas are counted. Two comments pertained to people in group homes for juveniles, two comments to people in residential treatment centers for juveniles, and one comment to students in boarding schools. Also, one comment pertained to the residence criteria, and one comment to each of four other residence situations: Visitors on Census Day, people who live in more than one place, people without a usual residence, and nonrelatives of the householder. Finally, three comments covered broader issues: One pertaining to how the residence criteria and situations are communicated, one pertaining to how field staff is trained on the residence criteria and situations, and one on how alternative addresses are collected from certain types of group facilities.

    2 The majority of comments received on this topic used the terms `prisoner,' `incarcerated,' or `inmate.' Although the terminology is not exactly what is used in the residence rule documentation, the context of the comments suggests that they apply to people in federal and state prisons (GQ type 102 and 103), local jails and other municipal confinement facilities (GQ type 104), and possibly federal detention centers (GQ type 101). References in this document to “prisons,” or “prisoners,” should be interpreted as referring to all of these GQ types.

    1. Comments on Prisoners

    Of the 162 comments pertaining to prisoners, 156 suggested that prisoners should be counted at their home or pre-incarceration address. The rationales included in these comments were as follows:

    • Counting prisoners at the prison inaccurately represents the prisoners' home communities, inflates the political power of the area where the prison is located, and deflates the political power in the prisoners' home communities. This distorts the redistricting process.

    • Counting prisoners away from their home address goes against the principle of equal representation.

    • The current residence criteria for prisoners is inconsistent with some states' laws regarding residency for elections.

    • The “usual residence” concept itself should change, as it relates to incarcerated persons, because the tremendous increase in the number of incarcerated people in the last 30 years, and the Supreme Court's support of equal representation, warrants a change in the interpretation of the concept of “usual residence.”

    • Prisoners do not interact or participate in the civic life of the community where they are incarcerated, are there involuntarily, and generally do not plan to remain in that community upon their release.

    • One comment stated that inmates in local jails who are awaiting trial are presumed innocent, and therefore should not be counted at the jail.

    Six comments were in support of the 2010 practice of counting prisoners at the prison, stating that adjusting prisoners' locations would be difficult, expensive, add unneeded complexity, and would be prone to inaccuracy. Of the six comments in support of counting prisoners at the prison, one mentioned a concern that adjusting the prisoners' locations could disenfranchise minorities in rural areas, and four said that changing the current practice could open the door to future census population count adjustments motivated by political gain.

    Census Bureau Response: The Census Bureau has determined that the practice of counting prisoners at the correctional facility for the 2020 Census would be consistent with the concept of usual residence, as established by the Census Act of 1790. As noted in section A.1 of this document, “usual residence” is defined as the place where a person lives and sleeps most of the time, which is not always the same as their legal residence, voting residence, or where they prefer to be counted. Therefore, counting prisoners anywhere other than the facility would violate the concept of usual residence, since the majority of people in prisons live and sleep most of the time at the prison.

    States are responsible for legislative redistricting. The Census Bureau works closely with the states and recognizes that some states have decided, or may decide in the future, to `move' their prisoner population back to the prisoners' pre-incarceration addresses for redistricting and other purposes. Therefore, following the 2020 Census, the Census Bureau plans to offer a product that states can request, in order to assist them in their goals of reallocating their own prisoner population counts. Any state that requests this product will be required to submit a data file (indicating where each prisoner was incarcerated on Census Day, as well as their pre-incarceration address) in a specified format. The Census Bureau will review the submitted file and, if it includes the necessary data, provide a product that contains supplemental information the state can use to construct alternative within-state tabulations for its own purposes. However, the Census Bureau will not use the information in this product to make any changes to the official decennial census counts.

    The Census Bureau also plans to provide group quarters data after the 2020 Census sooner than it was provided after the 2010 Census. For the 2010 Census, the Census Bureau released the Advance Group Quarters Summary File showing the seven major types of group quarters, including correctional facilities for adults and juvenile facilities. This early 3 release of data on the group quarters population was beneficial to many data users, including those in the redistricting community who must consider whether to include or exclude certain populations when redrawing boundaries as a result of state legislation. The Census Bureau is planning to incorporate similar group quarters information in the standard Redistricting Data (Pub. L. 94-171) Summary File for 2020.

    3 The Advance Group Quarters Summary File was released on April 20, 2011, which was earlier than when that GQ data was originally planned to be released in the Summary File 1 that was released on June 16—August 25, 2011. The earlier release made it easier to use these GQ data in conjunction with the Redistricting Data (Pub. L. 94-171) Summary File, which was released on February 3-March 24, 2011.

    2. Comments on the Military Overseas

    Of the 87 comments received pertaining to the military overseas, all suggested that the Census Bureau treat military personnel who are temporarily deployed overseas on a short-term basis differently than military personnel who are stationed overseas on a more long-term basis. More specifically, these comments suggested that military personnel who are deployed overseas should be counted at their home base or port. The commenters also suggested that the Census Bureau work with military bases to locate more accurate administrative records for counting deployed military and use administrative records to provide socioeconomic information on the deployed military.

    In the 2010 Census, the Census Bureau counted all military personnel deployed or stationed overseas in their `home of record' state for apportionment purposes only. Their home of record was provided by the Department of Defense (DOD), 4 and those state counts were added to the state population counts that were used to calculate the apportionment of seats for each state in the U.S. House of Representatives.

    4 Home of record is generally the permanent home of the person at the time of entry or re-enlistment into the Armed Forces, as included on personnel files. If home of record information was not available for a person, the DOD used the person's “legal residence” (the residence a member declares for state income tax withholding purposes), or thirdly, “last duty station,” to assign a home state.

    The commenters not only indicated that they want military personnel deployed overseas to be counted at their “usual residence,” “last duty station,” or “home base or port,” (which are inferred to mean the same thing), but also that they want the Census Bureau to collect all decennial census demographic data on these personnel and include them in the local community-level resident population counts, rather than only using a basic population count of them for determining the state-level apportionment counts. For example, many comments referred to the need for counting deployed military in the communities where they usually reside, because doing otherwise “produces flawed data that harms funding and planning in military communities.” Another comment referred to ensuring “communities have the needed resources to support these soldiers and their families.” These and other comments may refer to local-level planning and funding that is normally determined using the Census resident population data (available down to the block level) and not the apportionment counts, which are only available at the state level.

    To support the argument for counting deployed military overseas at their usual residence in the United States, one of the 87 commenters compared how the Census Bureau counts U.S. military personnel deployed to a land-based location overseas versus U.S. military personnel on U.S. military vessels with a U.S. homeport. The “2010 Census Residence Rule and Residence Situations” stated that the latter are “counted at the onshore U.S. residence where they live and sleep most of the time. If they have no onshore U.S. residence, they are counted at their vessel's homeport.” The commenter argued that this is inconsistent with how the Census Bureau has counted military personnel who are deployed to a land-based location overseas (while stationed at a location in the United States), and asked that all branches of service be treated the same and counted at their residence or home base/port.

    Census Bureau Response: The Census Bureau has determined that there is a distinction between personnel who are deployed overseas and those who are stationed or assigned overseas. Deployments are typically short in duration, and the deployed personnel will be returning to their usual residence where they are stationed or assigned in the United States after their temporary deployment ends. Personnel stationed or assigned overseas generally remain overseas for longer periods of time, and often do not return to the previous stateside location from which they left. Therefore, counting deployed personnel at their usual residence in the United States follows the standard interpretation of the residence criteria to count people at their usual residence if they are temporarily away for work purposes. This change would provide consistency with how the Census Bureau counts U.S. military personnel on U.S. military vessels.

    Based on the considerations described in the previous paragraph, for the 2020 Census, the Census Bureau proposes using administrative data from the DOD to count deployed personnel at their usual residence in the United States.5 The Census Bureau would continue to count military and civilian employees of the U.S. Government who are stationed or assigned outside the United States, and their dependents living with them, in their home state, for apportionment purposes only, using administrative data provided by the DOD and the other federal agencies that employ them.

    5 The ability to successfully integrate the DOD data on deployed personnel into the resident population counts must be evaluated and confirmed prior to the 2020 Census.

    3. Comments on Group Homes for Juveniles and Residential Treatment Centers for Juveniles

    Two comments pertained to group homes for juveniles and two comments to residential treatment centers for juveniles. All four of the comments supported counting the juveniles in these situations at their “household residence.” One of the commenters on the group homes and one of the commenters on the residential treatment centers further stated that the juveniles should only be counted at their household residence if it is in the same state as the facility. If the residence is not in the same state, these two commenters stated that the juvenile should be counted at the facility. All four commenters argued that counting juveniles at the facility inflates the political power of the area where the facility is located and dilutes the representation of the juveniles' home communities.

    Census Bureau Response: The Census Bureau reviewed where juveniles in these types of facilities are counted, based on the concept of usual residence. Most juveniles living in group homes are there for long periods of time and do not have a usual home elsewhere. The group home is where they live and sleep most of the time, so that is their usual residence. Conversely, most people in residential treatment centers for juveniles only stay at the facility temporarily and often have a usual home elsewhere that they return to after treatment is completed.

    Based