Federal Register Vol. 81, No.145,

Federal Register Volume 81, Issue 145 (July 28, 2016)

Page Range49517-49854
FR Document

81_FR_145
Current View
Page and SubjectPDF
81 FR 49634 - Request for Information on Payday Loans, Vehicle Title Loans, Installment Loans, and Open-End Lines of CreditPDF
81 FR 49853 - National Korean War Veterans Armistice Day, 2016PDF
81 FR 49849 - Anniversary of the Americans with Disabilities Act, 2016PDF
81 FR 49698 - Temporary Emergency Committee of the Board of Governors; Sunshine Act MeetingPDF
81 FR 49712 - In the Matter of American Transportation Holdings, Inc.; Order of Suspension of TradingPDF
81 FR 49712 - Authority To Submit Declarations and Claim Privileges on Behalf of the United States Under Military Rules of Evidence 505 and 506PDF
81 FR 49714 - Eleventh Meeting Special Committee 231 TAWSPDF
81 FR 49619 - Finished Carbon Steel Flanges From India, Italy, and Spain: Initiation of Less-Than-Fair-Value InvestigationsPDF
81 FR 49634 - Scientific Integrity Office; Notice of Availability and Request for Public CommentPDF
81 FR 49625 - Finished Carbon Steel Flanges From India: Initiation of Countervailing Duty InvestigationPDF
81 FR 49662 - Medicare Program; Request for an Exception to the Prohibition on Expansion of Facility Capacity Under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral ProhibitionPDF
81 FR 49660 - Notice of Opportunity for Hearing on Compliance of Arkansas State Plan Provisions Concerning Provision of Benefits During a Reasonable Opportunity Period With Titles XI and XIX (Medicaid) of the Social Security ActPDF
81 FR 49695 - In the Matter of Troy A. MoreheadPDF
81 FR 49691 - In the Matter of Kyle Lynn DickersonPDF
81 FR 49690 - Virgil C. Summer Nuclear Station, Units 2 and 3; South Carolina Electric & Gas Company; Main Control Room Emergency Habitability System Design ChangesPDF
81 FR 49685 - Notice Announcing the Automated Commercial Environment (ACE) Protest Module as the Sole CBP-Authorized Method for Filing Electronic ProtestsPDF
81 FR 49649 - Public Water System Supervision Program Revision for the State of FloridaPDF
81 FR 49618 - Foreign-Trade Zone (FTZ) 249-Pensacola, Florida; Notification of Proposed Production Activity GE Renewables North America, LLC, Subzone 249A, (Wind Turbine Nacelles, Hubs, and Drivetrains), Pensacola, FloridaPDF
81 FR 49619 - Approval of Subzone Status-Flemish Master Weavers-Sanford, MainePDF
81 FR 49712 - SunTx Capital III Management Corp., et al.-Control-TBL Group, Inc.; GBJ, Inc.; Echo Tours and Charters L.P.PDF
81 FR 49718 - National Research Advisory Council; Notice of MeetingPDF
81 FR 49716 - Submission for OMB Review; Comment RequestPDF
81 FR 49613 - Waybill Data Reporting for Toxic Inhalation Hazards; WithdrawalPDF
81 FR 49687 - National Cooperative Geologic Mapping Program (NCGMP) and National Geological and Geophysical Data Preservation Program (NGGDPP) Advisory CommitteePDF
81 FR 49633 - Proposed Information Collection; Comment Request; Reporting Requirements for Sea Otter Interactions With the Pacific Sardine Fishery; Coastal Pelagic Species Fishery Management PlanPDF
81 FR 49614 - Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Fisheries in the Gulf of Alaska; Reopening of Comment PeriodPDF
81 FR 49646 - Notice of Commissioner and Staff Attendance at the National Association of Regulatory Utility Commissioners Summer Committee MeetingsPDF
81 FR 49638 - Combined Notice of Filings #1PDF
81 FR 49653 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 49715 - Submission for OMB Review; Comment RequestPDF
81 FR 49689 - Notice of Intent To Seek Approval To Extend a Current Information CollectionPDF
81 FR 49717 - Solicitation of Nominations for Appointment to the Research Advisory Committee on Gulf War Veterans' IllnessesPDF
81 FR 49689 - Revision of OMB Circular No. A-130, “Managing Information as a Strategic Resource”PDF
81 FR 49635 - Privacy Act of 1974; System of RecordsPDF
81 FR 49674 - Prescription Drug User Fee Rates for Fiscal Year 2017PDF
81 FR 49687 - Notice of Public Meeting, Dakotas Resource Advisory Council MeetingPDF
81 FR 49688 - Notice of Filing of Plats of Survey, New MexicoPDF
81 FR 49684 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 49686 - Receipt of an Application for an Incidental Take Permit for Karner Blue Butterfly, From the Slack Chemical Company, and Availability of Proposed Habitat Conservation PlanPDF
81 FR 49681 - Oncologic Drugs Advisory Committee; Notice of MeetingPDF
81 FR 49680 - Psychopharmacologic Drugs Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Notice of MeetingPDF
81 FR 49647 - Brentwood Dam Ventures, LLC; Notice of Proposed Termination of Exemption by Implied Surrender and Soliciting Comments, Protests and Motions To IntervenePDF
81 FR 49640 - California Department of Water Resources; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 49644 - Tri-State Generation and Transmission Association, Inc.; Notice of Petition for Partial WaiverPDF
81 FR 49637 - Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Notice of the Technical Workshop on the Draft Data Dictionary Attached to the Data Collection for Analytics and Surveillance and Market-Based Rate Purposes Notice of Proposed RulemakingPDF
81 FR 49591 - Ownership Information in Market-Based Rate Filings; WithdrawalPDF
81 FR 49636 - Kenai Hydro, LLC ; Notice of Scoping Meetings and Environmental Site Review and Soliciting Scoping CommentsPDF
81 FR 49641 - Cyber Systems in Control CentersPDF
81 FR 49590 - Collection of Connected Entity Data From Regional Transmission Organizations and Independent System Operators; WithdrawalPDF
81 FR 49635 - Gresham Municipal Utilities; Notice of Availability of Environmental AssessmentPDF
81 FR 49638 - Southwest Power Pool, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 49639 - Billing Procedures for Annual Charges for the Costs of Other Federal Agencies for Administering Part I of the Federal Power Act; Notice Reporting Costs for Other Federal Agencies' Administrative Annual Charges for Fiscal Year 2015PDF
81 FR 49644 - Water Street Land, LLC; Notice of Application Tendered for Filing With the Commission and Soliciting Additional Study RequestsPDF
81 FR 49664 - Animal Drug User Fee Rates and Payment Procedures for Fiscal Year 2017PDF
81 FR 49580 - Standards for Business Practices and Communication Protocols for Public UtilitiesPDF
81 FR 49646 - Combined Notice of FilingsPDF
81 FR 49647 - Ninnescah Wind Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 49646 - Rush Springs Wind Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 49637 - Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 49645 - Combined Notice of Filings #2PDF
81 FR 49648 - Combined Notice of Filings #1PDF
81 FR 49688 - Porcelain-on-Steel Cooking Ware From China; DeterminationPDF
81 FR 49635 - Withdrawal of Notice of Intent To Prepare an Environmental Impact Statement for Western Lake Erie Basin, Blanchard River Watershed StudyPDF
81 FR 49659 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review; CancelationPDF
81 FR 49657 - Board of Scientific Counselors, Office of Public Health Preparedness and Response; MeetingsPDF
81 FR 49698 - Self-Regulatory Organizations; BATS Exchange, Inc.; Order Approving a Proposed Rule Change, as Modified by Amendment No. 6, To Amend BATS Rule 14.11(i) To Adopt Generic Listing Standards for Managed Fund SharesPDF
81 FR 49709 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Price Improvement XL PricingPDF
81 FR 49705 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Modify the Complimentary Services Offered to Certain New ListingsPDF
81 FR 49708 - Submission for OMB Review; Comment RequestPDF
81 FR 49714 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 49618 - Agenda and Notice of Public Meeting of the New Mexico Advisory CommitteePDF
81 FR 49632 - Hydrofluorocarbon Blends and Components Thereof From the People's Republic of China: Notice of Correction to the Final Determination of Sales at Less Than Fair ValuePDF
81 FR 49633 - Fisheries of the Gulf of Mexico; Southeast Data, Assessment, and Review (SEDAR); Assessment Webinar for Gulf of Mexico Data-Limited SpeciesPDF
81 FR 49669 - Animal Generic Drug User Fee Rates and Payment Procedures for Fiscal Year 2017PDF
81 FR 49683 - National Cancer Institute Notice of Closed MeetingsPDF
81 FR 49619 - Foreign-Trade Zone (FTZ) 189-Kent/Ottawa/Muskegon Counties, Michigan; Notification of Proposed Production Activity; Adient US LLC; Subzone 189D (Motorized Seat Adjusters for Motor Vehicles); Holland and Zeeland, MichiganPDF
81 FR 49628 - Dioctyl Terephthalate From the Republic of Korea: Initiation of Less-Than-Fair-Value InvestigationPDF
81 FR 49624 - Antidumping Duty Investigation of 1,1,1,2 Tetrafluoroethane (R-134a) From the People's Republic of China: Postponement of Preliminary Determination of Antidumping Duty InvestigationPDF
81 FR 49673 - Blood Donor Deferral Policy for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products; Establishment of a Public Docket; Request for CommentsPDF
81 FR 49652 - Notice of Agreements FiledPDF
81 FR 49678 - Agency Information Collection Activities; Proposed Collection; Comment Request; Pre-Submission Program for Medical DevicesPDF
81 FR 49681 - Biosimilar User Fee Rates for Fiscal Year 2017PDF
81 FR 49659 - National Center for Chronic Disease Prevention and Health Promotion, Interagency Committee on Smoking and Health (ICSH)PDF
81 FR 49657 - National Center for Injury Prevention and Control (NCIPC), Board of Scientific Counselors, National Center for Injury Prevention and Control, (BSC, NCIPC)PDF
81 FR 49659 - National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP)-Advisory Council for the Elimination of Tuberculosis (ACET)PDF
81 FR 49658 - Request for Nominations of Candidates To Serve on the Advisory Committee to the Director, Centers for Disease Control and Prevention (ACD, CDC)PDF
81 FR 49650 - The Hazardous Waste Electronic Manifest System Advisory Board: Request for NominationsPDF
81 FR 49652 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 49688 - 182nd Meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans; Notice of MeetingPDF
81 FR 49815 - Hills Pharmacy, LLC; Decision and OrderPDF
81 FR 49575 - Airworthiness Directives; Turbomeca S.A. Turboshaft EnginesPDF
81 FR 49572 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 49577 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 49592 - Partial Approval and Partial Disapproval of Attainment Plan for Oakridge, Oregon PM2.5PDF
81 FR 49650 - Final National Pollutant Discharge Elimination System General Permit for Discharges From Concentrated Animal Feeding Operations in New MexicoPDF
81 FR 49556 - Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of CounselPDF
81 FR 49539 - Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance AgreementsPDF
81 FR 49591 - Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance AgreementsPDF
81 FR 49517 - Commerce Control List: Addition of Items Determined To No Longer Warrant Control Under United States Munitions List Category XIV (Toxicological Agents) or Category XVIII (Directed Energy Weapons)PDF
81 FR 49531 - Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Categories XIV and XVIIIPDF
81 FR 49553 - Unified Registration System; CorrectionPDF
81 FR 49598 - Significant New Uses of Chemical Substances; Updates to the Hazard Communication Program and Regulatory Framework; Minor Amendments to Reporting Requirements for Premanufacture NoticesPDF
81 FR 49719 - Regulatory Capital Rules: Regulatory Capital, Implementation of Tier 1/Tier 2 FrameworkPDF

Issue

81 145 Thursday, July 28, 2016 Contents AIRFORCE Air Force Department NOTICES Privacy Act; Systems of Records, 49635 2016-17871 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Requests for Information: Payday Loans, Vehicle Title Loans, Installment Loans, and Open-End Lines of Credit, 49634 C1--2016--13492 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel: Initial Review; Cancelation, 49659 2016-17827 National Center for Chronic Disease Prevention and Health Promotion, Interagency Committee on Smoking and Health, 49659-49660 2016-17799 National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention: Advisory Council for the Elimination of Tuberculosis, 49659 2016-17795 National Center for Injury Prevention and Control, Board of Scientific Counselors, National Center for Injury Prevention and Control, 49657-49658 2016-17797 Office of Public Health Preparedness and Response, Board of Scientific Counselors, 49657 2016-17826 Requests for Nominations: Advisory Committee to the Director, Centers for Disease Control and Prevention, 49658-49659 2016-17794 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare Program: Request for an Exception to the Prohibition on Expansion of Facility Capacity under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral Prohibition, 49662-49664 2016-17928 Opportunity for Hearing on Compliance of Arkansas State Plan Provisions Concerning Provision of Benefits During a Reasonable Opportunity Period with Titles XI and XIX (Medicaid) of the Social Security Act, 49660-49662 2016-17923 Civil Rights Civil Rights Commission NOTICES Meetings: New Mexico Advisory Committee, 49618 2016-17817 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Defense Department Defense Department See

Air Force Department

See

Engineers Corps

Drug Drug Enforcement Administration NOTICES Decisions and Orders: Hills Pharmacy, LLC, 49816-49847 2016-17721 Employee Benefits Employee Benefits Security Administration NOTICES Meetings: Advisory Council on Employee Welfare and Pension Benefit Plans, 49688-49689 2016-17723 Energy Department Energy Department See

Federal Energy Regulatory Commission

Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Western Lake Erie Basin, Blanchard River Watershed Study; Withdrawal, 49635 2016-17828 Environmental Protection Environmental Protection Agency RULES Participation by Disadvantaged Business Enterprises in Procurements under EPA Financial Assistance Agreements, 49539-49553 2016-17510 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Oakridge, OR; Partial Approval and Partial Disapproval of Attainment Plan for PM2.5 Nonattainment Area, 49592-49598 2016-17714 Participation by Disadvantaged Business Enterprises in Procurements under EPA Financial Assistance Agreements, 49591-49592 2016-17509 Significant New Uses of Chemical Substances: Updates to the Hazard Communication Program and Regulatory Framework; Minor Amendments to Reporting Requirements for Premanufacture Notices, 49598-49613 2016-15005 NOTICES Final National Pollutant Discharge Elimination System: General Permit for Discharges from Concentrated Animal Feeding Operations, New Mexico, 49650 2016-17709 Public Water System Supervision Program Revision for State of Florida, 49649 2016-17898 Requests for Nominations: Hazardous Waste Electronic Manifest System Advisory Board, 49650-49652 2016-17782 Executive Office Executive Office for Immigration Review PROPOSED RULES Motions to Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 49556-49572 2016-17540 Farm Credit Farm Credit Administration RULES Regulatory Capital; Implementation of Tier 1/Tier 2 Framework, 49720-49813 2016-12072 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airworthiness Directives; Turbomeca S.A. Turboshaft Engines, 49575-49577 2016-17719 Bombardier, Inc. Airplanes, 49577-49579 2016-17717 The Boeing Company Airplanes, 49572-49575 2016-17718 NOTICES Meetings: Special Committee 231 TAWS, 49714-49715 2016-17935 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Collection of Connected Entity Data from Regional Transmission Organizations and Independent System Operators, 49590-49591 2016-17853 Ownership Information in Market-Based Rate Filings; Withdrawal, 49591 2016-17856 Standards for Business Practices and Communication Protocols for Public Utilities, 49580-49590 2016-17841 NOTICES Applications: California Department of Water Resources, 49640-49641 2016-17859 Water Street Land, LLC, 49644-49645 2016-17849 Combined Filings, 49638-49639, 49645-49646, 49648-49649 2016-17834 2016-17835 2016-17840 2016-17877 Cyber Systems in Control Centers, 49641-49644 2016-17854 Environmental Assessments; Availability, etc.: Gresham Municipal Utilities, 49635-49636 2016-17852 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Ninnescah Wind Energy, LLC, 49647 2016-17838 Rush Springs Wind Energy, LLC, 49646-49647 2016-17837 Institution of Section 206 Proceeding and Refund Effective Date: Midcontinent Independent System Operator, Inc., 49637 2016-17836 Southwest Power Pool, Inc., 49638 2016-17851 Meetings: Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Technical Workshop, 49637-49638 2016-17857 Kenai Hydro, LLC, 49636-49637 2016-17855 Petitions for Partial Waivers: Tri-State Generation and Transmission Association, Inc. p, 49644 2016-17858 Proposed Terminations of Exemptions by Implied Surrender: Brentwood Dam Ventures, LLC, 49647-49648 2016-17860 Reporting Costs for Other Federal Agencies' Administrative Annual Charges for Fiscal Year 2015, 49639-49640 2016-17850 Staff Attendances, 49646 2016-17878 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 49652 2016-17803 Federal Motor Federal Motor Carrier Safety Administration RULES Unified Registration System; Corrections, 49553-49555 2016-17461 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49653-49657 2016-17876 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 49652-49653 2016-17768 Fish Fish and Wildlife Service NOTICES Incidental Take Permit Applications: Karner Blue Butterfly, from the Slack Chemical Co.; Availability of Proposed Habitat Conservation Plan, 49686-49687 2016-17866 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pre-Submission Program for Medical Devices, 49678-49680 2016-17802 Animal Drug User Fee Rates and Payment Procedures for Fiscal Year 2017, 49664-49669 2016-17848 Animal Generic Drug User Fee Rates and Payment Procedures, 49669-49672 2016-17811 Biosimilar User Fee Rates for Fiscal Year 2017, 49681-49683 2016-17800 Blood Donor Deferral Policy for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products, 49673-49674 2016-17804 Meetings: Oncologic Drugs Advisory Committee, 49681 2016-17865 Psychopharmacologic Drugs Advisory Committee and the Drug Safety and Risk Management Advisory Committee, 49680-49681 2016-17864 Prescription Drug User Fee Rates for Fiscal Year 2017, 49674-49678 2016-17870 Foreign Trade Foreign-Trade Zones Board NOTICES Approvals of Subzone Status: Flemish Master Weavers, Sanford, ME, 49619 2016-17891 Production Activities: Adient US, LLC, Subzone 189D, Foreign-Trade Zone 189, Kent/Ottawa/Muskegon Counties, MI, 49619 2016-17807 Proposed Production Activities: GE Renewables North America, LLC, Foreign-Trade Zone 249, Pensacola, FL, 49618-49619 2016-17892 Geological Geological Survey NOTICES Meetings: National Cooperative Geologic Mapping Program and National Geological and Geophysical Data Preservation Program Advisory Committee, 49687 2016-17882 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

U.S. Customs and Border Protection

Industry Industry and Security Bureau RULES Commerce Control List: United States Munitions List Category XIV (Toxicological Agents) or Category XVIII (Directed Energy Weapons), 49517-49531 2016-17506 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Finished Carbon Steel Flanges from India, 49625-49628 2016-17929 Finished Carbon Steel Flanges from India, Italy, and Spain, 49619-49624 2016-17931 Investigation of 1,1,1,2 Tetrafluoroethane (R-134a) from the People's Republic of China, 49624 2016-17805 Sales at Less Than Fair Value; Determinations; Investigations, etc.: Dioctyl Terephthalate from the Republic of Korea, 49628-49632 2016-17806 Hydrofluorocarbon Blends and Components Thereof from the People's Republic of China, 49632 2016-17816 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Porcelain-on-Steel Cooking Ware from China, 49688 2016-17831 Justice Department Justice Department See

Drug Enforcement Administration

See

Executive Office for Immigration Review

Labor Department Labor Department See

Employee Benefits Security Administration

Land Land Management Bureau NOTICES Meetings: Dakotas Resource Advisory Council, 49687-49688 2016-17869 Plats of Surveys: New Mexico, 49688 2016-17868 Management Management and Budget Office NOTICES Circular No. A-130, Managing Information as a Strategic Resource; Revision, 49689 2016-17872 National Institute National Institutes of Health NOTICES Meetings: National Cancer Institute, 49683-49684 2016-17810 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Exclusive Economic Zone Off Alaska: Groundfish Fisheries in the Gulf of Alaska; Reopening of Comment Period, 49614-49617 2016-17879 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Sea Otter Interactions with the Pacific Sardine Fishery; Coastal Pelagic Species Fishery Management Plan, 49633-49634 2016-17880 Draft Procedural Handbook, 49634 2016-17930 Meetings: Fisheries of the Gulf of Mexico; Southeast Data, Assessment, and Review; Assessment Webinar for Gulf of Mexico Data-limited Species, 49633 2016-17812 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49689-49690 2016-17874 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Confirmatory Orders: Kyle Lynn Dickerson, 49691-49695 2016-17920 Troy A. Morehead, 49695-49698 2016-17921 Exemptions and Combined License Amendments: Virgil C. Summer Nuclear Station, Units 2 and 3; South Carolina Electric and Gas Co.; Main Control Room Emergency Habitability System Design Changes, 49690-49691 2016-17918 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 49698 2016-18063 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Anniversary of the Americans with Disabilities Act (Proc. 9471), 49849-49852 2016-18087 National Korean War Veterans Armistice Day (Proc. 9472), 49853-49854 2016-18088 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49708-49709 2016-17820 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 49698-49705 2016-17824 NASDAQ PHLX, LLC, 49709-49712 2016-17823 Nasdaq Stock Market, LLC, 49705-49708 2016-17822 Trading Suspension Orders: American Transportation Holdings, Inc., 49712 2016-17965 State Department State Department RULES International Traffic in Arms: U.S. Munitions List Categories XIV and XVIII, 49531-49539 2016-17505 NOTICES Authority to Submit Declarations and Claim Privileges on Behalf of the United States under Military Rules of Evidence, 49712 2016-17936 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49684-49685 2016-17867 Surface Transportation Surface Transportation Board PROPOSED RULES Waybill Data Reporting for Toxic Inhalation Hazards; Withdrawal, 49613 2016-17883 NOTICES Transfers of Control: SunTx Capital III Management Corp., et al.; TBL Group, Inc.; GBJ, Inc.; Echo Tours and Charters, LP, 49712-49714 2016-17887 Tennessee Tennessee Valley Authority NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49714 2016-17819 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49715-49717 2016-17885 2016-17875 Customs U.S. Customs and Border Protection NOTICES Automated Commercial Environment Protest Module: Sole CBP-Authorized Method for Filing Electronic Protests, 49685-49686 2016-17915 Veteran Affairs Veterans Affairs Department NOTICES Meetings: National Research Advisory Council, 49718 2016-17886 Requests for Nominations: Research Advisory Committee on Gulf War Veterans' Illnesses, 49717-49718 2016-17873 Separate Parts In This Issue Part II Farm Credit Administration, 49720-49813 2016-12072 Part III Justice Department, Drug Enforcement Administration, 49816-49847 2016-17721 Part IV Presidential Documents, 49849-49854 2016-18087 2016-18088 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.

81 145 Thursday, July 28, 2016 Rules and Regulations DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740 and 774 [Docket No. 120105019-5755-01] RIN 0694-AF52 Commerce Control List: Addition of Items Determined To No Longer Warrant Control Under United States Munitions List Category XIV (Toxicological Agents) or Category XVIII (Directed Energy Weapons) AGENCY:

Bureau of Industry and Security, Department of Commerce.

ACTION:

Final rule.

SUMMARY:

This final rule implements changes described in a proposed rule that the Bureau of Industry and Security (BIS) published on June 17, 2015. Specifically, this final rule describes how articles the President has determined no longer warrant control under Category XIV (Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment) or Category XVIII (Directed Energy Weapons) of the United States Munitions List (USML) are now controlled under the Commerce Control List (CCL). The affected Category XIV articles consist primarily of dissemination, detection, and protection “equipment” and related articles, such as production and test “equipment,” and are controlled under new Export Control Classification Numbers (ECCNs) 1A607, 1B607, 1C607, 1D607, and 1E607, as added to the CCL by this final rule. The affected Category XVIII articles consist primarily of tooling, production “equipment,” test and evaluation “equipment,” test models, and related articles and are controlled under new ECCNs 6B619, 6D619 and 6E619, as added to the CCL by this final rule.

This final rule is one in a series of rules describing how various types of articles that the President has determined no longer warrant control on the USML, as part of the Administration's Export Control Reform Initiative, are controlled on the CCL in accordance with the requirements of the Export Administration Regulations (EAR).

This final rule is being published by BIS in conjunction with a final rule from the Department of State, Directorate of Defense Trade Controls, which amends the list of articles controlled by USML Categories XIV and XVIII. The citations in this BIS rule to USML Categories XIV and XVIII reflect the amendments contained in the Department of State's rule. The revisions made by BIS in this rule are part of Commerce's retrospective regulatory review plan under Executive Order 13563 completed in August 2011.

DATES:

This rule is effective December 31, 2016.

ADDRESSES:

The Department of Commerce's full retrospective regulatory review plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

FOR FURTHER INFORMATION CONTACT:

For questions regarding dissemination, detection and protection “equipment” and related items that are controlled under new ECCNs 1A607, 1B607, 1C607, 1D607, and 1E607, contact Richard P. Duncan, Ph.D., Director, Chemical and Biological Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, telephone: (202) 482-3343, email: [email protected]

For questions regarding tooling, production “equipment,” test and evaluation “equipment,” test models, and related items that are controlled under new ECCNs 6B619, 6D619 and 6E619, contact Mark Jaso, Sensors and Aviation Division, Office of National Security & Technology Transfer Controls, Bureau of Industry and Security, telephone: (202) 482-0987, email: [email protected]

SUPPLEMENTARY INFORMATION:

Background

This final rule is published by the Bureau of Industry and Security (BIS) as part of the Administration's Export Control Reform (ECR) Initiative, the object of which is to protect and enhance U.S. national security interests. The implementation of the ECR initiative includes amendment of the International Traffic in Arms Regulations (ITAR) and its U.S. Munitions List (USML), so that they control only those items that provide the United States with a critical military or intelligence advantage or otherwise warrant such controls, and amendment of the Export Administration Regulations (EAR) to control military items that do not warrant USML controls. This series of amendments to the ITAR and the EAR will reform the U.S. export control system to enhance our national security by: (i) Improving the interoperability of U.S. military forces with allied countries; (ii) strengthening the U.S. industrial base by, among other things, reducing incentives for foreign manufacturers to design out and avoid U.S.-origin content and services; and (iii) allowing export control officials to focus government resources on transactions that pose greater national security, foreign policy, or proliferation concerns than those involving our NATO allies and other multi-regime partners.

Following the structure set forth in the final rule titled “Revisions to the Export Administration Regulations: Initial Implementation of Export Control Reform” (78 FR 22660, April 16, 2013) (hereinafter the “April 16 (initial implementation) rule”), this final rule describes BIS's implementation of controls, under the EAR's CCL, on certain dissemination, detection and protection “equipment” and related articles previously controlled under USML Category XIV in the ITAR and certain tooling, production “equipment,” test and evaluation “equipment,” test models and related articles previously controlled under USML Category XVIII of the ITAR.

In the April 16 (initial implementation) rule, BIS created a series of new ECCNs to control items that would be removed from the USML and similar items from the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies Munitions List (Wassenaar Arrangement Munitions List or WAML) that were already controlled elsewhere on the CCL. That final rule referred to this series of new ECCNs as the “600 series,” because the third character in each of these new ECCNs is the number “6.” The first two characters of the “600 series” ECCNs serve the same function as any other ECCN as described in § 738.2 of the EAR. The first character is a number, within the range of 0 through 9, that identifies the Category on the CCL in which the ECCN is located. The second character is a letter, within the range of A through E, that identifies the product group in a CCL Category. As indicated above, the third character in the “600 series” ECCNs is the number “6,” which distinguishes the items controlled under this series of ECCNs from items identified under other ECCNs on the CCL. With few exceptions, the final two characters identify the WAML category that covers items that are the same or similar to items in a particular “600 series” ECCN.

Pursuant to section 38(f) of the Arms Export Control Act (AECA), the President is obligated to review the USML “to determine what items, if any, no longer warrant export controls under” the AECA. The President must report the results of the review to Congress and wait 30 days before removing any such items from the USML. The report must “describe the nature of any controls to be imposed on that item under any other provision of law.” 22 U.S.C. 2778(f)(1).

The changes made by this final rule and in the State Department's companion rule to Categories XIV and XVIII of the USML are based on a review of these USML Categories by the Defense Department, which worked with the Departments of State and Commerce in preparing these amendments. Other agencies with expertise and equities in the items at issue in these rules were consulted as well. The review focused on identifying those types of articles that provide the United States with a critical military or intelligence capability and that are not currently in normal commercial use. Such items remain on the USML. Other items with less than a critical military or intelligence capability not in normal commercial use will transition to the “600 series” controls. It is the intent of the agencies that USML Categories XIV and XVIII, and the corresponding “600 series” ECCNs on the CCL, not control items in normal commercial use. Such items should be controlled under existing dual-use controls on the CCL, consistent with the Wassenaar Arrangement List of Dual-Use Goods and Technologies.

All references to the USML in this rule are to the list of defense articles that are controlled for purposes of export, temporary import, or brokering pursuant to the ITAR, and not to the list of defense articles on the United States Munitions Import List (USMIL) that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for purposes of permanent import under its regulations at 27 CFR part 447. Pursuant to section 38(a)(1) of the AECA, all defense articles controlled for export or import, or that are subject to brokering controls, are part of the “USML” under the AECA. For the sake of clarity, references to the USMIL are to the list of defense articles controlled by ATF for purposes of permanent import. All defense articles described in the USMIL or the USML are subject to the brokering controls administered by the U.S. Department of State in part 129 of the ITAR. The transfer of defense articles from the ITAR's USML to the EAR's CCL, for purposes of export controls, does not affect the list of defense articles that are controlled on the USMIL under the AECA for purposes of permanent import.

On January 18, 2011, the President issued Executive Order 13563, affirming general principles of regulation and directing government agencies to conduct retrospective reviews of existing regulations. The revisions made by this rule are part of Commerce's retrospective regulatory review plan under Executive Order 13563. Commerce's full plan, completed in August 2011, can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

This final rule implements amendments to the EAR proposed in BIS's rule titled “Commerce Control List: Addition of Items Determined to No Longer Warrant Control under United States Munitions List Category XIV (Toxicological Agents) or Category XVIII (Directed Energy Weapons),” which was published in the Federal Register on June 17, 2015 (RIN 0694-AF52) (80 FR 34562) (herein “the June 17 (toxicological agents and directed energy weapons) rule”).

Dissemination, Detection and Protection “Equipment” and Related Items Public Comments and BIS Responses

BIS received comments from eight parties in response to the proposed amendments in the June 17 (toxicological agents and directed energy weapons) rule that addressed dissemination, detection and protection “equipment” and related items.

ECCN 1A607 (Military Dissemination, Detection, and Protection “Equipment”)

Comment: One commenter noted that tear gas and riot control agents were dropped from proposed USML Category XIV(d), but did not appear in proposed ECCN 1A607.

Response: The tear gas and riot control agents removed from USML Category XIV(d) are now controlled under ECCN 1C607.a.1 through a.6, as they were proposed to be controlled in BIS's June 17 (toxicological agents and directed energy weapons) rule. Therefore, no further action is required.

ECCN 1A607.f (Protection “Equipment”)

Comment: One commenter noted that proposed ECCN 1A607.f included protection “equipment,” but did not specifically indicate that it controlled Chemical Agent Resistant Coatings (CARC). The commenter recommended that CARC be specifically identified in ECCN 1A607.f or that the word “material” be added so that companies would be more likely to interpret ECCN 1A607.f to include coatings, such as CARC. In addition, the commenter recommended that the export controls on CARC be changed to align more closely with export controls maintained by U.S. allies, who do not require an export license for CARC to most destinations. Specifically, the commenter felt that companies familiar with the European Union military list could become confused, because the controls in ECCN 1A607.f are similar to those described in ML.7.f, which does not control CARC. In the event that CARC continues to require a license to most destinations, the commenter recommended that all CARC be placed under the export licensing jurisdiction of a single U.S. Government agency to simplify jurisdictional and/or classification determinations.

Response: ECCN 1A607.f indicates that it controls protection “equipment” not controlled by USML Category XIV(f) that is “specially designed” for military use and for defense against materials specified by USML XIV(a) or (b) or riot control agents controlled by ECCN 1C607.a. BIS believes that this control language, as revised in this final rule to specify “protective coatings” (as well as air conditioning units and protective clothing), is now sufficiently clear as to leave no doubt that it applies to paintings/coatings such as CARC. Consequently, the control language used in the June 17 (toxicological agents and directed energy weapons) rule has been retained in this final rule with only the above-referenced change (i.e., the revision of the parenthetical phrase in the introductory text of ECCN 1A607.f to read, as follows: “including air conditioning units, protective coatings, and protective clothing.”

As for the scope of the license requirements that apply to CARC, all items in ECCN 1A607, including CARC, are subject to NS Column 1 and RS Column 1 license requirements, which apply to all destinations, except Canada. While the scope of the EAR license requirements on CARC is considerably broader than that maintained by some of our allies, exports of CARC are authorized without a license, under License Exception STA, for destinations in, or nationals of, Country Group A:5 in Supplement No. 1 to part 740 of the EAR, which currently contains 36 countries. Furthermore, the EAR requirements that apply to the CARC that were previously controlled under USML Category XIV and are now controlled under new ECCN 1A607.f represent a significant easing of the regulatory burden on exporters of such CARC through: (i) Elimination of some license requirements; (ii) greater availability of license exceptions; (iii) simpler license application procedures; and (iv) reduced or eliminated registration fees. With respect to the commenter's recommendation that all CARC be placed under the export licensing jurisdiction of a single U.S. Government agency, BIS notes that the only CARC that continue to be controlled under USML Category XIV (specifically, in paragraph (f)(7) of USML Category XIV) are those that have been qualified to one of the following four military specifications: MIL-PRF-32348, MIL-DTL-64159, MIL-C-46168, or MIL-DTL-53039. In light of the anticipated benefits of moving certain CARC from USML Category XIV to new ECCN 1A607 on the EAR's CCL, as described above, there would appear to be little practical upside to continuing to control all CARC under the export licensing jurisdiction of a single U.S. Government agency.

Comment: One commenter recommended that all items identified in USML Category XIV(f)(4) for individual protection against chemical and biological agents specified in USML Category XIV(a) or (b) should be controlled under new ECCN 1A607.f on the CCL. In addition, the commenter recommended that all individual protection “equipment” and clothing controlled under new ECCN 1A607.f should be authorized for export under License Exception BAG under special provisions similar to those currently applicable to “personal protective equipment” (i.e., ECCN 1A613.c or .d) in accordance with Section 740.14(h) of the EAR.

Response: USML Category XIV(f)(4), as set forth in the State Department's companion rule to this final rule, controls equipment or items that offer individual or collective protection against items specified in USML Category XIV(a) or (b), as follows: (1) M53 Chemical Biological Protective Mask or M50 Joint Service General Purpose Mask (JSGPM); (2) filter cartridges containing sorbents controlled in USML Category XIV(f)(4)(iii); (3) ASZM-TEDA carbon; and (4) ensembles, garments, suits, jackets, pants, boots or socks for individual protection, and liners for collective protection, that allow no more than 1% breakthrough of GD, or no more than 2% breakthrough of any other chemical specified in USML Category XIV(a), when evaluated by executing the applicable method(s) of testing described in the current version of Test Operations Procedure (TOP) 08-2-201 (Collective Protection Novel Closures Testing) or 08-2-501 (Permeation Testing of Materials with Chemical Agents or Simulants—Swatch Testing) and using the defined DoD-specific requirements described therein.

The control criteria in USML Category XIV(f)(4), as described above, are the result of a review of USML Category XIV, as part of the Administration's Export Control Reform (ECR) Initiative, to ensure that it controls only those items that are inherently military, provide the United States with a critical military or intelligence advantage, or otherwise warrant control on the USML. In the absence of any compelling evidence contrary to the results of this review, no change is contemplated, with respect to these USML Category XIV criteria, at this time. New ECCN 1A607.f controls “equipment” previously controlled under USML Category XIV(f)(4) or (f)(5) that the President has determined no longer warrants control on the USML (i.e., protection “equipment,” including “equipment” for individual protection, not controlled by USML Category XIV(f) that is “specially designed” for military use and for defense against materials specified by USML XIV(a) or (b) or riot control agents controlled by ECCN 1C607.a). This final rule does not expand the scope of new ECCN 1A607.f to control all “equipment” for individual protection against chemical and biological agents specified in USML Category XIV(a) or (b), because this change would be contrary to the President's determination, based on the results of the aforementioned review of USML Category XIV (i.e., it would result in the transfer to the CCL of items that are inherently military, provide the United States with a critical military or intelligence advantage, or otherwise warrant control on the USML).

With respect to the commenter's recommendation that all individual protection “equipment” and clothing controlled under new ECCN 1A607.f should be authorized for export under License Exception BAG (under special provisions similar to those currently applicable to “personal protective equipment”), this final rule amends the License Exception BAG provisions in Section 740.14(h) of the EAR to authorize exports, reexports, or in-country transfers of chemical or biological agent protective gear consistent with the requirements and restrictions described therein. In a corresponding change, this final rule also amends the License Exception TMP provisions in Section 740.9(a)(11) of the EAR to authorize temporary exports, reexports, or in-country transfers of chemical or biological agent protective gear consistent with the requirements and restrictions described therein. These changes are also intended to make the scope of these license exceptions, as they apply to chemical or biological agent protective gear controlled under new ECCN 1A607.f, conform with the scope of the ITAR exemption for personal protective equipment in Section 123.17 of the ITAR.

Comment: One commenter noted that neither BIS's June 17 (toxicological agents and directed energy weapons) rule nor State's companion proposed rule clearly indicated whether filter cartridges containing sorbents funded by the Department of Defense via contract or other funding authorization, as proposed to be controlled under USML Category XIV(n), would be controlled under new ECCN 1A607.f on the CCL or under USML Category XIV(f) or (n). In addition, the commenter noted that neither of these proposed rules clearly indicated whether filter cartridges that meet the requirements of specifications PRF-EA-2251 for the M61 filter cartridge, but do not contain ASZM-TEDA carbon, would be controlled under new ECCN 1A605.f or under USML Category XIV(f) or (n).

Response: Neither of the observations made by the commenter requires any modification to new ECCN 1A607.f. Filter cartridges containing developmental sorbents are controlled under USML Category XIV(f)(4)(ii) if the sorbents were funded by the Department of Defense via contract or other funding authorization, as specified in USML Category XIV(n), and none of the elements in Note 1 to paragraph (n) apply (i.e., the sorbents are determined to be subject to the EAR via a commodity jurisdiction determination or they are identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications). The commenter's question concerning the export licensing jurisdiction status of filter cartridges reflects the fact that State's companion Category XIV/XVIII proposed rule did not specifically enumerate (in Category XIV) filter cartridges containing sorbents controlled under USML Category XIV(n). USML Category XIV(f)(ii), in State's proposed rule, specified that it controlled filter cartridges containing sorbents controlled under USML Category XIV(f)(iii), but the control status of filter cartridges containing sorbents enumerated in proposed USML Category XIV(n) was not specifically indicated. Consequently, State's companion Category XIV/XVIII final rule corrects this oversight by clarifying USML Category XIV to indicate that it applies to filter cartridges that contain any of the sorbents specified under USML Category XIV(f)(iii) or (n) and, in so doing, eliminates the possibility that such filter cartridges could be controlled under new ECCN 1A607.f on the CCL (except to the limited extent that sorbents funded by the Department of Defense via contract or other funding authorization are excluded from USML Category XIV(n) for a specified period of time, as indicated in Note 3 thereto).

In response to the commenter's request for clarification concerning controls on filter cartridges that meet the requirements of specifications PRF-EA-2251 for the M61 filter cartridge, but do not contain ASZM-TEDA carbon, their control status also would depend upon the sorbents that they contain. As indicated above, filter cartridges that contain any of the sorbents controlled by USML Category XIV (i.e., sorbents specified under paragraph (f)(iii) or (n) of Category XIV) are controlled under USML Category XIV. Otherwise, they are controlled under new ECCN 1A607.f.

ECCN 1A607.h (Detection/Identification “Equipment”)

Comment: One commenter interpreted BIS's June 17 (toxicological agents and directed energy weapons) rule and State's companion USML Category XIV/XVIII proposed rule as transferring to new ECCN 1A607.h on the CCL all detection equipment, previously controlled under USML Category XIV(f)(2), that is “specially designed” for military use for the detection of agents identified in proposed USML Category XIV(a) or (b), except for: (1) Detection equipment that is classified or that relates to classified information; and (2) military detection equipment developed under a DoD contract or other funding authorization, as described in proposed USML Category XIV(f)(2) and subject to the restriction in Note 3 thereto, which indicated that the controls in paragraph (f)(2) would apply only to controls dated one year (or later) after the date of publication of State's USML Category XIV final rule. Note 3 to paragraph (f)(2) was mistakenly included in USML Category XIV, as described in State's proposed rule; consequently, it does not appear in State's final rule.

Response: New ECCN 1A607.h controls “equipment” not controlled by USML Category XIV(f) that is “specially designed” for military use and for the detection or identification of materials specified by USML Category XIV(a) or (b) or riot control agents controlled by ECCN 1C607.a on the CCL. Because new ECCN 1A607.h indicates that it does not include any detection equipment that is controlled by USML Category XIV(f), the scope of the ECCN is necessarily dependent upon the scope of Category XIV(f), which, in turn, is subject to interpretation by the U.S. Department of State. Therefore, the Department of State, and not BIS, is the appropriate U.S. Government agency to confirm whether the commenter's statement is correct (in whole or in part), as it applies to the scope of new ECCN 1A607.h and the “equipment” previously controlled under USML Category XIV(f)(2). Consequently, this question should be addressed, with respect to specific detection “equipment,” through the submission of one or more commodity jurisdiction (CJ) requests to the State Department's Directorate of Defense Trade Controls (DDTC), consistent with the requirements in the ITAR.

ECCN 1A607.k (Medical Countermeasures)

Comment: One commenter noted that items controlled under proposed new ECCN 1A607.k (military medical countermeasures “equipment”), and related “technology” controlled under proposed new ECCN 1E607.a, would not be eligible for export/reexport under the License Exception GOV provisions in Section 740.11(d), International Inspections under the Chemical Weapons Convention (CWC), to destinations located outside of Country Group A:5 in Supplement No. 1 to part 740 of the EAR.

Response: The commenter is correct in noting that “equipment” in new ECCN 1A607.k and related “technology” in new ECCN 1E607.a are not eligible for export under the License Exception GOV provisions in Section 740.11(d) of the EAR, except to destinations located in Country Group A:5. This restriction, which is described in Section 740.11(d)(2)(iii) of the EAR, was implemented as part of BIS's April 16 (initial implementation) rule in which the License Exception GOV provisions in Section 740.11 of the EAR were revised. Among the License Exception GOV provisions that were affected by these revisions were those authorizing exports and reexports to the Organization for the Prohibition of Chemical Weapons (OPCW) and exports and reexports by the OPCW for official international inspection and verification use under the terms of the CWC. Under the OPCW authorization, as revised, Section 740.11(d)(2)(iii) of the EAR prohibits exports and reexports of items controlled under “600 series” ECCNs on the CCL to countries not listed in Country Group A:5. Country Group A:5 currently consists of 36 countries, as established by BIS's April 16 (initial implementation) rule, which became effective on October 15, 2013. The scope of the OPCW authorization in License Exception GOV was the result of extensive U.S. Government interagency review and discussion. Furthermore, the scope of eligible countries for the OPCW authorization (i.e., 36 countries), as established by BIS's April 16 (initial implementation) rule, was initially broader than the country scope that was authorized under the License Exception GOV provisions for cooperating governments, as described in Section 740.11(c) of the EAR, which then authorized exports and reexports to 27 cooperating governments and agencies of the North Atlantic Treaty Organization (NATO). The country scope of the cooperating governments authorization under License Exception GOV was subsequently expanded, by BIS's Wassenaar Arrangement (WA) 2014 Plenary final rule (98 FR 29432, May 21, 2015), to include 41 cooperating governments and agencies of NATO. Currently, the country scope of the cooperating governments and OPCW authorizations under License Exception GOV are roughly equivalent (i.e., the former applies to four more countries than the latter—two of those countries are CWC States Parties and one is a special administrative region of a State Party). In light of the recent changes to the License Exception GOV provisions described above, BIS does not have any immediate plans to address possible revisions to the country scope of the OPCW authorization. BIS also considers any such action to be outside the scope of this rulemaking, which does not specifically address EAR requirements involving the CWC and the OPCW.

ECCN 1A607.x (“Parts,” “Components,” “Accessories,” and “Attachments”)

Comment: One commenter noted that proposed new ECCN 1A607.x indicated that it controlled “parts,” “components,” “accessories,” and “attachments” “specially designed” for the “equipment” described in proposed ECCN 1A607.e, .f, .g, or .j. However, the commenter also noted that “parts,” “components,” “accessories,” and “attachments” “specially designed” for the detection/identification “equipment” described in proposed ECCN 1A607.h were not included in proposed ECCN 1A607.x. As a result, the commenter questioned whether any “parts,” “components,” “accessories,” and “attachments” “specially designed” for detection/identification “equipment” that might be removed from the USML, as a result of the proposed revisions to USML Category XIV(f), would be controlled under proposed new ECCN 1A607 on the CCL (e.g., under proposed ECCN 1A607.x).

Response: The commenter is correct in noting that proposed new ECCN 1A607.x specified only those “parts,” “components,” “accessories,” and “attachments” “specially designed” for the “equipment” described in ECCN 1A607.e, .f, .g, or .j, and not those “parts,” “components,” “accessories,” and “attachments” “specially designed” for detection/identification “equipment” described in ECCN 1A607.h. This final rule corrects that oversight. New ECCN 1A607.x, as added to the CCL by this final rule, indicates that it controls “parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by ECCN 1A607.e, .f, .g, .h, or .j or for a defense article controlled by USML Category XIV(f) and that are not enumerated or otherwise described elsewhere in the USML.

General Comments on Dissemination, Detection and Protection “Equipment”

Comment: One commenter noted that the BIS and State Category XIV/XVIII proposed rules omitted coverage of the Wassenaar Munitions List (WAML) items in WAML 7.a (Biological agents or radioactive materials adapted for use in war to produce casualties in humans and animals, degrade equipment, or damage crops or the environment).

Response: The items noted by the commenter are not identified in any of the new “600 series” ECCNs described in BIS's June 17 (toxicological agents and directed energy weapons) rule, but they are clearly enumerated under USML Category XIV in State's companion proposed rule. Proposed USML Category XIV(b)(1)(ii) identifies specific biological agents that have been militarized, as described in USML Category XIV(b)(1)(i), and proposed USML Category XIV(b)(2) describes biological agents identified under ECCN 1C351, 1C353, or 1C354 on the EAR's CCL that have been militarized, as described in USML Category XIV(b)(2)(i) and (b)(2)(ii). These defense articles are identified in the USML Category XIV amendments contained in State's companion rule to this final rule.

Comment: One commenter noted that the following two Australia Group (AG) controlled items were not identified in either the BIS or State Category XIV/XVIII proposed rules:

(1) Valves with a closure element designed to be interchangeable, as listed under 6.b on the AG Control List of Dual-Use Chemical Manufacturing Facilities and Equipment); and (2) nose-only exposure apparatus, as listed under 8.b on the AG Control List of Dual-Use Biological Equipment.

Response: The commenter accurately noted that neither of the two items were identified in the BIS and State Category XIV/XVIII proposed rules. However, because these items are identified as dual-use items on the AG common control lists indicated above, neither item is within the scope of this rulemaking. The valves, described under 6.b on the AG chemical manufacturing facilities and equipment control list, are currently controlled under ECCN 2B350.g.2 on the CCL. The nose-only exposure apparatus, described under 8.b on the AG biological equipment common control list, was recently added to this AG control list and is currently controlled under ECCN 2B352.h based on a recent update of AG listed items on the CCL (see 81 FR 36458, June 7, 2016).

Comment: One commenter indicated that some of the proposed new “600 series” ECCNs in BIS's June 17 (toxicological agents and directed energy weapons) rule maintained unilateral controls on certain items that were proposed to be transferred to the CCL from USML Category XIV.

Response: All the items described in the new “600 series” ECCNs created by this final rule were previously controlled on the USML under the ITAR and were added to these new ECCNs on the CCL only after the President determined that these items no longer warrant control on the USML for the reasons set forth above.

Changes Made by This Rule to Controls on Certain Dissemination, Detection and Protection “Equipment” and Related Items Previously Controlled Under USML Category XIV

This final rule creates five new “600 series” ECCNs in CCL Category 1 (ECCNs 1A607, 1B607, 1C607, 1D607, and 1E607) that clarify the EAR controls applicable to certain dissemination, detection and protection “equipment” and related items that the President has determined no longer warrant control under USML Category XIV. Terms such as “part,” “component” “accessories,” “attachments,” and “specially designed” are applied in the same manner in this rule as those terms are defined in Section 772.1 of the EAR. In addition, to assist exporters in determining the control status of their items, a “Specially Designed” Decision Tool and a CCL Order of Review Decision Tool are available on the BIS Web site at: http://www.bis.doc.gov/index.php/decision-tree-tools.

New ECCN 1A607 Military dissemination “equipment” for riot control agents, military detection and protection “equipment” for toxicological agents (including chemical, biological, and riot control agents), and related commodities.

In new ECCN 1A607, paragraphs .a through .d, paragraph .i, and paragraphs .l through .w are reserved. Paragraph .e of ECCN 1A607 controls “equipment” “specially designed” for military use and for the dissemination of any of the riot control agents controlled in ECCN 1C607.a. Paragraph .f of ECCN 1A607 controls protection “equipment” “specially designed” for military use and for defense against either materials controlled by USML Category XIV(a) or (b) or any of the riot control agents in new ECCN 1C607.a. Paragraph .g of ECCN 1A607 controls decontamination “equipment” not controlled by USML Category XIV(f) that is “specially designed” for military use and for the decontamination of objects contaminated with materials controlled by USML Category XIV(a) or (b). Paragraph .h controls “equipment” not controlled by USML Category XIV(f) that is “specially designed” for military use and for the detection or identification of either materials specified by USML Category XIV(a) or (b) or riot control agents controlled by new ECCN 1C607.a. Paragraph .j controls “equipment” “specially designed” to: (i) Interface with a detector, shelter, vehicle, vessel, or aircraft controlled by the USML or a “600 series” ECCN; and (ii) collect and process samples of articles controlled in USML Category XIV(a) or (b). Paragraph .k controls medical countermeasures that are “specially designed” for military use (including pre- and post- treatments, antidotes, and medical diagnostics) and “specially designed” to counter chemical agents controlled by USML Category XIV(a). Paragraph .x controls “parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled under ECCN 1A607.e, .f, .g, .h, or .j or a defense article controlled in USML Category XIV(f) and that are not enumerated or otherwise described elsewhere in the USML.

New ECCN 1B607 Military test, inspection, and production “equipment” and related commodities “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities identified in ECCN 1A607 or 1C607, or defense articles enumerated or otherwise described in USML Category XIV.

In new ECCN 1B607, paragraph .a controls “equipment,” not including incinerators, that is “specially designed” for the destruction of chemical agents controlled by USML Category XIV(a). Paragraph .b of ECCN 1B607 controls test facilities and “equipment” that are “specially designed” for military certification, qualification, or testing of commodities controlled by new ECCN 1A607.e, .f, .g, .h, or .j or by USML Category XIV(f), except for XIV(f)(1). Paragraph .c of ECCN 1B607 controls tooling and “equipment” “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities controlled under new ECCN 1A607.e, .f, .g, .h, or .j or USML Category XIV(f). Paragraphs .d through .w are reserved. Paragraph .x controls “parts,” “components,” “accessories,” and “attachments,” not enumerated or otherwise described elsewhere in the USML, that are “specially designed” for a commodity controlled by ECCN 1B607.b or .c or for a defense article controlled by USML Category XIV(f).

As indicated above, ECCN 1B607.b does not control test facilities and “equipment” that are “specially designed” for military certification, qualification, or testing of commodities and are enumerated or otherwise described in USML Category XIV(f)(1), as set forth in State's companion rule to this final rule (e.g., see the equipment in USML Category XIV(f)(1)(ii) that is “specially designed” for testing the articles controlled in paragraph (a), (b), (c), (e), or (f)(4) of USML Category XIV). In addition to the test facilities and “equipment” controlled by ECCN 1B607.b, see the tooling and “equipment” classified under ECCN 2B350 or 2B352 for producing the chemical/biological agents, precursors, or defoliants described in USML Category XIV(a), (b), (c), or (e). The EAR also control tooling and “equipment” to produce the antibodies/polynucleotides and vaccines described in USML Category XIV(g) and (h), respectively, as follows: lab “equipment” designated as EAR99 under the EAR; biological dual-use “equipment” (including protective “equipment”) classified under ECCN 2B352; and EAR-controlled biological systems for making vaccines (involving the use of mice, rabbits, etc.).

New ECCN 1C607 Tear gases, riot control agents and materials for the detection and decontamination of chemical warfare agents.

New ECCN 1C607.a controls specified tear gases and riot control agents. Paragraph .b of ECCN 1C607 controls “biopolymers” not controlled by USML Category XIV(g) that are “specially designed” or processed for the detection or identification of chemical warfare (CW) agents specified by USML Category XIV(a) and the cultures of specific cells used to produce them. Paragraph .c controls specified “biocatalysts” and biological systems that are not controlled by USML Category XIV(g) and are “specially designed” for the decontamination or degradation of CW agents specified by USML Category XIV(a). Paragraph .d controls chemical mixtures not controlled by USML Category XIV(f) that are “specially designed” for military use for the decontamination of objects contaminated with materials specified by USML Category XIV(a) or (b).

New ECCN 1D607 “Software” “specially designed” for the “development,” “production,” operation, or maintenance of items controlled by 1A607, 1B607 or 1C607.

New ECCN 1D607.a controls “software” “specially designed” for the “development,” “production,” operation, or maintenance of items controlled by ECCN 1A607, 1B607 or 1C607. Paragraph .b of ECCN 1D607 is reserved.

New ECCN 1E607 “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by ECCN 1A607, 1B607, 1C607, or 1D607.

New ECCN 1E607.a controls “technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by ECCN 1A607, 1B607, 1C607, or 1D607. Paragraph .b of ECCN 1E607 is reserved.

Amendments to License Exceptions BAG and TMP related to Individual Protection “Equipment” in ECCN 1A607.f.

In response to public comments recommending that all individual protection “equipment” and clothing controlled under new ECCN 1A607.f should be authorized for export under License Exception BAG (under special provisions similar to those currently applicable to “personal protective equipment”), this final rule amends the License Exception BAG provisions in Section 740.14(h) of the EAR to authorize exports, reexports, or in-country transfers of chemical or biological agent protective gear consistent with the requirements and restrictions described therein. In a corresponding change, this final rule also amends the License Exception TMP provisions in Section 740.9(a)(11) of the EAR to authorize temporary exports, reexports, or in-country transfers of chemical or biological agent protective gear consistent with the requirements and restrictions described therein. The amendments to License Exceptions BAG and TMP also change the requirements for Afghanistan to be consistent with those of the majority of other Country Group D:5 destinations (i.e., the U.S. person authorized to use the license exception must be affiliated with the U.S. Government and be traveling on official business or traveling in support of a U.S. Government contract). The same requirement applies to the use of these license exception provisions for Iraq, also a D:5 country, with the additional option that the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. These amendments are also intended to ensure that the scope of these license exceptions, as they apply to chemical or biological agent protective gear controlled under new ECCN 1A607.f, conforms with the scope of the ITAR exemption for personal protective equipment in Section 123.17 of the ITAR (e.g., by correcting the provisions for Afghanistan, as described above, to be consistent with those of the majority of other Country Group D:5 destinations).

Tooling, Production “Equipment,” Test and Evaluation “Equipment,” Test Models and Other Articles Related to Directed Energy Weapons Public Comments and BIS Responses

BIS received comments from two parties in response to the proposed amendments in the June 17 (toxicological agents and directed energy weapons) rule related to tooling, production “equipment,” test, and evaluation “equipment,” test models and other articles related to directed energy weapons.

General Comments on Items Related to Directed Energy Weapons

Comment: One commenter noted that the BIS and State Category XIV/XVIII proposed rules omitted coverage of the Wassenaar Munitions List (WAML) items in WAML 19.f (“Laser” systems “specially designed” to cause permanent blindness to unenhanced vision).

Response: The items noted by the commenter are not identified in any of the new “600 series” ECCNs described in BIS's June 17 (toxicological agents and directed energy weapons) rule, but they are clearly enumerated under USML Category XVIII in State's companion proposed rule. Proposed USML Category XVIII(a) identifies directed energy weapons (DEW) systems or “equipment” that, as their sole or primary purpose, cause permanent or flash blindness. These articles are identified in the USML Category XVIII amendments contained in State's companion rule to this final rule.

Comment: One commenter indicated that some of the proposed new “600 series” ECCNs in BIS's June 17 (toxicological agents and directed energy weapons) rule maintained unilateral controls on certain items that were proposed to be transferred to the CCL from the USML Category XVIII.

Response: All the items described in the new “600 series” ECCNs created by this final rule were previously controlled on the USML under the ITAR and were added to these new ECCNs on the CCL only after the President determined that these items no longer warrant control on the USML for the reasons set forth above.

Changes Made by This Rule to Controls on Certain Tooling, Production “Equipment,” Test and Evaluation “Equipment” and Test Models Previously Controlled Under USML Category XVIII

This rule creates three new “600 series” ECCNs in CCL Category 6 (ECCNs 6B619, 6D619 and 6E619) that clarify the EAR controls applicable to certain tooling, production “equipment,” test and evaluation “equipment,” test models, and related articles for Directed Energy Weapons (DEWs) that the President has determined no longer warrant control under USML Category XVIII. Terms such as “part,” “component” “accessories,” “attachments,” and “specially designed” are applied in the same manner in this rule as those terms are defined in Section 772.1 of the EAR. In addition, to assist exporters in determining the control status of their items, a “Specially Designed” Decision Tool and a CCL Order of Review Decision Tool are available on the BIS Web site at: http://www.bis.doc.gov/index.php/decision-tree-tools.

New ECCN 6B619 Test, inspection and production “equipment,” and related commodities, “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities enumerated or otherwise described in USML Category XVIII.

New ECCN 6B619.a controls tooling, templates, jigs, mandrels, molds, dies, fixtures, alignment mechanisms, and test “equipment” not enumerated or otherwise described in USML Category XVIII and not elsewhere specified on the USML that are “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities controlled by USML Category XVIII. The commodities that are controlled under new ECCN 6B619.a are used to produce directed energy weapons (including non-lethal directed energy weapons, such as active denial systems) and are similar to commodities that are in operation in a number of other countries, some of which are not allies of the United States or members of multinational export control regimes. Research and development is currently underway to determine the possible uses of such commodities (e.g., to protect the Earth from asteroids, or for perimeter security and crowd control). Possession of such commodities does not confer a significant military advantage on the United States and, therefore, the inclusion of such commodities on the CCL would be appropriate.

Paragraphs .b through .w of ECCN 6B619 are reserved. Paragraph .x controls “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control under paragraph .a of this ECCN and not enumerated or otherwise described in USML Category XVIII and not elsewhere specified on the USML.

New ECCN 6D619 “Software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by 6B619.

New ECCN 6D619 controls “software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by ECCN 6B619. Inclusion of this “software” on the CCL is appropriate, because it is limited to “software” “specially designed” for ECCN 6B619 commodities and does not include any “software” for items specifically enumerated or otherwise described on the USML.

New ECCN 6E619 “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul or refurbishing of commodities controlled by 6B619 or “software” controlled by 6D619.

New ECCN 6E619 controls “technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul or refurbishing of commodities controlled by ECCN 6B619, or “software” controlled by 6D619. Inclusion of this “technology” on the CCL is appropriate, because it is limited to “technology” “required” for ECCN 6B619 commodities and does not include any “technology” for items specifically enumerated or otherwise described on the USML.

Applicable Controls for the New “600 Series” ECCNs Created by This Rule

Pursuant to the framework established in the April 16 (initial implementation) rule, detection and protection “equipment” and related commodities classified under ECCN 1A607; related test, inspection and production “equipment” classified under ECCN 1B607; tear gases, riot control agents and related commodities classified under ECCN 1C607 (except for items listed in ECCN 1C607.a.10, .a.11, .a.12, or a.14, all of which are specifically excluded from WAML Category 7 by Note 1 thereto); related “software” classified under ECCN 1D607 (except “software” for items listed in ECCN 1C607.a.10, .a.11, .a.12, or a.14); and related “technology” classified under ECCN 1E607 (except “technology” for items listed in ECCN 1C607.a.10, .a.11, .a.12, or a.14 and 1D607 “software” therefor) are subject to the licensing policies that apply to items controlled for national security (NS) reasons, as described in § 742.4(b)(1)—specifically, NS Column 1 controls. The same level of NS controls and licensing policies also apply to the directed energy weapons items that are controlled under the three new ECCNs (i.e., test, inspection, and production “equipment” classified under ECCN 6B619; related “software” classified under ECCN 6D619; and related “technology” classified under ECCN 6E619) that this rule adds to Category 6 of the CCL. In addition, all the items that are controlled under the new ECCNs created by this rule are subject to the regional stability (RS) licensing policies set forth in § 742.6(a)(1), i.e., RS Column 1, as well as antiterrorism (AT Column 1) and United Nations (UN) controls.

Also, in accordance with §§ 742.4(b)(1) and 742.6(b)(1) of the EAR, exports and reexports of “600 series” items controlled for NS or RS reasons will be reviewed consistent with United States arms embargo policies in § 126.1 of the ITAR, if destined to a country listed in Country Group D:5 of Supplement No. 1 to part 740 of the EAR. All items controlled for NS or RS reasons, as set forth in this final rule, are subject to this licensing policy.

Effects of This Final Rule

BIS believes that the principal effect of this final rule, when considered in the context of similar rules being published as part of the ECR, will be to provide greater flexibility for exports and reexports to NATO member countries and other multiple-regime-member countries of items the President determines no longer warrant control on the USML. This greater flexibility is in the form of: the application of the EAR's de minimis threshold principle for items constituting less than a de minimis amount of controlled U.S.-origin content in foreign made items; the availability of license exceptions, particularly License Exceptions “Servicing and Replacement of Parts and Equipment” (RPL) and “Strategic Trade Authorization” (STA); the elimination of requirements for manufacturing license agreements and technical assistance agreements in connection with exports of technology; and a reduction in, or the elimination of, exporter and manufacturer registration requirements and associated registration fees. Some of these specific effects are discussed in more detail, below.

De Minimis

The April 16 (initial implementation) rule imposed certain unique de minimis requirements on items controlled under the new “600 series” ECCNs. Section 734.3 of the EAR provides, inter alia, that, under certain conditions, items made outside the United States that incorporate items subject to the EAR are not subject to the EAR if they do not exceed a “de minimis” percentage of controlled U.S. origin content. Under Section 734.4 of the EAR, as amended by the April 16 (initial implementation) rule, there is no eligibility for de minimis treatment for a foreign-made item that incorporates U.S.-origin “600 series” items when the foreign-made item is destined for a country that is subject to a U.S. arms embargo, i.e., a country listed in Country Group D:5 of Supplement No. 1 to part 740 of the EAR. Items controlled under the new “600 series” ECCNs created by this rule are eligible for de minimis treatment under the EAR, provided that the foreign-made items into which they are incorporated are not destined for a country listed in Country Group D:5. In contrast, the AECA does not permit the ITAR to have a de minimis treatment for USML-listed items, regardless of the significance or insignificance of the U.S.-origin content or the percentage of U.S.-origin content in the foreign-made item (i.e., USML-listed items remain subject to the ITAR when they are incorporated abroad into a foreign-made item, regardless of either of these factors).

Use of License Exceptions

The April 16 (initial implementation) rule imposed certain restrictions on the use of license exceptions for items controlled under “600 series” ECCNs on the CCL. The general restrictions that apply to the use of license exceptions for such items are described in § 740.2(a)(13) of the EAR. The EAR provisions that describe the requirements specific to individual license exceptions contain additional restrictions on the use of license exceptions for such items.

For example, this rule authorizes limited License Exception STA availability for the new “600 series” ECCNs contained herein. None of the items controlled under these new ECCNs are eligible for the STA “controls of lesser sensitivity” described in § 740.20(c)(2) of the EAR. Instead, STA eligibility for all such items is limited to the destinations listed in § 740.20(c)(1) of the EAR (i.e., Country Group A:5 destinations indicated in Supplement No. 1 to part 740 of the EAR). In addition, such items must be for: (1) ultimate end-use by a person of a type specified in § 740.20(b)(3)(ii) of the EAR (i.e., the armed forces, police, paramilitary, law enforcement, customs, correctional, fire, or a search and rescue agency of a government of one of the countries listed in Country Group A:5 or the United States Government); or (2) the “development,” “production,” operation installation, maintenance, repair, overhaul, or refurbishing of an item, in one of the countries listed in Country Group A:5 or the United States, that will ultimately be used by any such government agencies, the United States Government, or by a person in the United States. The use of License Exception STA also may be authorized, under certain circumstances described in § 740.20(b)(3)(ii)(C), where the U.S. Government has otherwise authorized the ultimate end-use under a license.

None of the items controlled under the new “600 series” ECCNs created by this rule are treated as “end items” for purposes of License Exception STA and, therefore, such items are not subject to the License Exception STA eligibility request requirements in § 740.20(g) of the EAR.

Items controlled under new ECCN 1B607 or 6B619 are also eligible for License Exception LVS (limited value shipments) up to a value of $1,500, TMP (temporary exports), and RPL (servicing and replacement parts). License Exceptions TMP and RPL also are available for items controlled under new ECCN 1A607. In addition, special provisions in License Exception TMP (see § 740.9(a)(11) of the EAR) and License Exception BAG (baggage) (see § 740.14(h) of the EAR), as amended by this final rule, authorize exports, reexports, or in-country transfers of certain protection “equipment” described in ECCN 1A607.f.

BIS believes that the restrictions that apply to the use of license exceptions for the items in the new “600 series” ECCNs represents an overall reduction from the level of restrictions that previously applied to such items on the USML. This is particularly true with respect to exports of such items to NATO members and multiple-regime member countries.

Alignment With the Wassenaar Arrangement Munitions List

Since the beginning of ECR, the Administration has stated that the reforms will be consistent with the United States' obligations to the multilateral export control regimes. Accordingly, the Administration has, in this final rule, exercised its national discretion to implement, clarify, and, to the extent feasible, align its controls with those of the regimes. In this rule, new ECCNs 1A607 and 1C607 implement, to the extent possible, the controls in WAML Category 7; new ECCNs 1B607 and 6B619 implement, to the extent possible, the controls in WAML Category 18 for production “equipment;” new ECCNs 1D607 and 6D619 implement, to the extent possible, the controls in WAML Category 21 for “software;” and new ECCNs 1E607 and 6E619 implement, to the extent possible, the controls in WAML Category 22 for “technology.”

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2015 (80 FR 48233 (Aug. 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

Rulemaking Requirements

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor is any person subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This final rule affects the following approved collections: Simplified Network Application Processing System (control number 0694-0088), which includes, among other things, license applications; License Exceptions and Exclusions (0694-0137); recordkeeping (0694-0096); export clearance (0694-0122); and the Automated Export System (0607-0152). The discussion, below, is intended to provide a general overview of possible burden changes as a result of all the ECR rules published by BIS, and not just this final rule, which affects items previously controlled under USML Category XIV or XVIII. No changes in burden for any of these collections is anticipated at this time, other than as indicated in the discussion, below.

As stated in the proposed rule published on July 15, 2011 (76 FR 41958) (the “July 15 proposed rule”), BIS initially estimated that the combined effect of all rules to be published, adding items to the EAR that would be removed from the ITAR as part of the Administration's Export Control Reform Initiative, would increase the number of license applications to be submitted to BIS by approximately 16,000 annually, resulting in an increase in burden hours of 5,067 (16,000 transactions at 17 minutes each) under control number 0694-0088. As the review of the USML has progressed, the interagency group has gained more specific information about the number of items that would come under BIS jurisdiction and whether those items would be eligible for export under license exception. As of June 21, 2012, BIS revised its estimate to reflect an increase in license applications of 30,000 annually, resulting in an increase in burden hours of 8,500 (30,000 transactions at 17 minutes each) under control number 0694-0088. BIS continues to believe that its revised estimate is accurate. Notwithstanding this increase in license applications under the EAR, the net burden that U.S. export controls impose on U.S. exporters is expected to go down, as described below, as a result of the transfer of less sensitive military items to the jurisdiction of the Department of Commerce, under the EAR, and the application of the license exceptions and other provisions in the EAR that are described in this final rule.

As implemented by this rule, certain dissemination, detection and protection “equipment” and related articles currently controlled under USML Category XIV in the ITAR and certain tooling, production “equipment,” test and evaluation “equipment,” test models and related articles currently controlled under USML Category XVIII of the ITAR are now subject to the licensing jurisdiction of the Department of Commerce under the EAR and its CCL, and also are eligible for certain license exceptions, including License Exception STA. For example, items controlled under new ECCN 1A607, 1B607, 1C607, 1D607, 1E607, 6B619, 6D619, or 6E619 are now eligible under certain provisions of License Exception STA and do not need a determination of eligibility as described in § 740.20(g) of the EAR. BIS believes that the increased use of License Exception STA resulting from the combined effect of all rules to be published, adding items to the EAR that would be removed from the ITAR as part of the Administration's Export Control Reform Initiative, would increase the burden associated with control number 0694-0137 by about 23,858 hours (20,450 transactions at 1 hour and 10 minutes each).

BIS expects that this increase in burden hours under the EAR will be more than offset by a reduction in the burden hours associated with currently approved collections related to the ITAR. With few exceptions, most exports of the dissemination, detection and protection “equipment” and related articles and the tooling, production “equipment,” test and evaluation “equipment,” test models and related articles that this rule adds to the CCL previously required State Department authorization, even when destined to NATO member states and other close allies. In addition, the exports of “technology” necessary to produce such items in the inventories of the United States and its NATO and other close allies previously required State Department authorization. Under the EAR, as implemented by this rule, such “technology” is now eligible for export to NATO member states and other close allies under License Exception STA, unless otherwise specifically excluded.

The anticipated reduction in burden hours will particularly impact exporters of “parts” and “components” that are no longer be subject to the ITAR, because, with few exceptions, the ITAR exempt from license requirements only exports to Canada. Most exports of such “parts” and “components,” even when destined to NATO and other close allies, previously required State Department authorization. Under the EAR, as implemented by this rule, a small number of low-level “parts” and “components” do not require a license to most destinations, while most other “parts” and “components” identified under the new “600 series” ECCNs are eligible for export to NATO and other close allies under License Exception STA.

Use of License Exception STA imposes a paperwork and compliance burden because, for example, exporters must furnish information about the item that is being exported to the consignee and obtain from the consignee an acknowledgement and commitment to comply with the requirements of the EAR. However, the Administration believes that complying with the requirements of STA is likely to be less burdensome than applying for licenses. For example, under License Exception STA, a single consignee statement can apply to an unlimited number of products, need not have an expiration date and need not be submitted to the government in advance for approval. Suppliers with regular customers can tailor a single statement and assurance to match their business relationship, rather than applying repeatedly for licenses with every purchase order, to supply allied and, in some cases, U.S. forces with routine replacement parts and components.

Even in situations in which a license is required under the EAR, the burden likely will be reduced, compared to the previous license requirement under the ITAR. In particular, license applications for exports of “technology” controlled by ECCN 1E607 or 6E619 are likely to be less complex and burdensome than the authorizations required to export ITAR-controlled “technology,” i.e., Manufacturing License Agreements and Technical Assistance Agreements.

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

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

Number of Small Entities

Although BIS does not collect data on the size of entities that apply for, and are issued, export licenses and is, therefore, unable to estimate the exact number of small entities—as defined by the Small Business Administration's regulations implementing the RFA—BIS acknowledges that some small entities may be affected by this proposed rule.

Economic Impact

The amendments set forth in this rule are part of the Administration's ECR initiative, which seeks to revise the USML to be a positive control list—one that does not use generic, catch-all control text to describe items subject to the ITAR—and to move some items that the President has determined no longer warrant control under the ITAR to control under the EAR and its CCL. Such items, along with certain military items currently identified on the CCL (most of which are identified on the WAML), will be controlled under new “600 series” ECCNs on the CCL. In addition, certain other items currently on the CCL will move from existing ECCNs to the new “600 series” ECCNs.

This rule addresses certain dissemination, detection and protection “equipment” and related articles previously enumerated or otherwise described in USML Category XIV (Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment) and certain tooling, production “equipment,” test and evaluation “equipment,” test models and related articles previously enumerated or otherwise described in USML Category XVIII (Directed Energy Weapons). Most toxicological agents (i.e., chemical and biological agents) and associated equipment and all Directed Energy Weapons (DEWs) systems “specially designed” or modified for military applications, equipment “specially designed” or modified to detect, identify or defend against such systems, and “specially designed” “parts,” “components,” “accessories” and “attachments” for such systems or equipment remain on the USML. However, many other “parts” and “components” are now subject to the EAR (as items described in ECCN 1A607.x, 1B607.x, or 6B619.x), unless specifically enumerated or otherwise described on the USML. Many of these “parts” and “components” are more likely, than the USML articles described above, to be produced by small businesses. In addition, officials of the Department of State have informed BIS that license applications for such “parts” and “components” represent a high percentage of the license applications for USML articles reviewed by that department. Changing the jurisdictional status of certain Category XIV and Category XVIII items will reduce the burden on small entities (and other entities as well) through: (i) Elimination of some license requirements; (ii) greater availability of license exceptions; (iii) simpler license application procedures; and (iv) reduced or eliminated registration fees.

Moreover, “parts” and “components” that are controlled under the ITAR remain under ITAR control when incorporated into foreign-made items, regardless of the significance or insignificance of the item. This discourages foreign buyers from incorporating such U.S. content. The availability of de minimis treatment under the EAR, for those items that are no longer controlled under the ITAR, may reduce the disincentive for foreign manufacturers to purchase U.S.-origin “parts” and “components,” a development that potentially would mean greater sales for U.S. suppliers, including small entities.

Many exports and reexports of the Category XIV or Category XVIII articles that are added to the CCL by this rule (particularly, the “parts” and “components” that are controlled under new ECCN 1A607.x, 1B607.x, or 6B619.x) are now eligible for license exceptions that apply to exports to U.S. Government agencies, exports of “parts” and “components” for use as replacement parts, temporary exports and limited value exports (for ECCN 1B607 and 6B619 items, only), as well as License Exception STA, thereby reducing the number of licenses that exporters will need to obtain for these items. License exceptions under the EAR allow suppliers to send routine replacement parts and low level parts to NATO and other close allies and export control regime partners for use by those governments and for use by contractors building equipment for those governments or for the U.S. Government without having to obtain export licenses. Under License Exception STA, the exporter needs to furnish information about the item being exported to the consignee and obtain a statement from the consignee that, among other things, will commit the consignee to comply with the EAR and other applicable U.S. laws. Because such statements and obligations can apply to an unlimited number of transactions and have no expiration date, they will result in a net reduction in burden on transactions routinely approved by the government through the license application process that the License Exception STA statements would replace.

Even for exports and reexports for which a license will be required, the process for obtaining a license is simpler and less costly under the EAR. When a USML Category XIV or Category XVIII article is moved to the CCL, the number of destinations for which a license is required remains unchanged. However, the burden on the license applicant decreases because the licensing procedure for CCL items is simpler and more flexible than the licensing procedure for USML articles.

Under the USML licensing procedure, an applicant must include a purchase order or contract with its application. There is no such requirement under the CCL licensing procedure. This difference gives the CCL applicant at least two advantages. First, the applicant has a way to determine whether the U.S. Government will authorize the transaction before it enters into potentially lengthy, complex and expensive sales presentations or contract negotiations. Under the USML procedure, the applicant must caveat all sales presentations with a reference to the need for government approval, and is more likely to engage in substantial effort and expense only to find that the government will reject the application. Second, a CCL license applicant need not limit its application to the quantity or value of one purchase order or contract. It may apply for a license to cover all of its expected exports or reexports to a specified consignee over the life of a license (normally four years, but maybe longer if circumstances warrant a longer period), thus reducing the total number of licenses for which the applicant must apply.

In addition, many applicants exporting or reexporting items that this rule transfers from the USML to the CCL will realize cost savings through the elimination of some or all registration fees assessed under the USML's licensing procedure. Currently, USML applicants must pay to use the USML licensing procedure even if they never actually are authorized to export. Registration fees for manufacturers and exporters of articles on the USML start at $2,250 per year, increase to $2,750 for organizations applying for one to ten licenses per year and further increase to $2,750 plus $250 per license application (subject to a maximum of three percent of total application value) for those who need to apply for more than ten licenses per year. Conversely, there are no registration or application processing fees for applications to export items listed on the CCL. Entities who applied for licenses from the Department of State, for the Category XIV or Category XVIII items subject to this rulemaking that are removed from the USML and added to the CCL, will find their registration fees reduced if the number of USML licenses those entities need declines. If an entity's entire product line moves to the CCL, its ITAR registration and registration fee requirement will be eliminated.

Conclusion

BIS expects that the changes to the EAR implemented by this rule will have a positive effect on all affected entities, including small entities. While BIS acknowledges that this rule may have some cost impacts on small (and other) entities, those costs are more than offset by the benefits to the entities from the licensing procedures under the EAR, which are much less costly and less time consuming than the procedures under the ITAR. As noted above, any new burdens created by this rule will be offset by a reduction in the number of items that will require a license, increased opportunities for use of license exceptions for exports to certain countries, simpler export license applications, reduced or eliminated registration fees and application of a de minimis threshold for foreign-made items incorporating U.S.-origin parts and components, all of which will reduce the incentive for foreign buyers to design out or avoid U.S.-origin content. Accordingly, the Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, that this rule, if implemented, would not have a significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis is not required, and none has been prepared.

List of Subjects 15 CFR Part 740

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

15 CFR Part 774

Exports, Reporting and recordkeeping requirements.

For the reasons stated in the preamble, parts 740 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

PART 740—[AMENDED] 1. The authority citation for 15 CFR part 740 continues to read as follows: Authority:

50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

2. Section 740.9 is amended by revising paragraph (a)(11) to read as follows:
§ 740.9 Temporary imports, exports, reexports, and transfers (in-country) (TMP).

(a) * * *

(11) Personal protective “equipment” classified under ECCN 1A613.c or .d and individual protection “equipment” classified under ECCN 1A607.f—(i) Temporary exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:

(A) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and

(B) The items are for that U.S. person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.

(ii) Temporary exports, reexports, or transfers (in-country) to countries identified in Country Group D:5—(A) Iraq. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.

(B) Other countries in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.

(iii) Items exported, reexported, or transferred (in-country) under this paragraph (a)(11), if not consumed or destroyed in the normal course of authorized temporary use abroad, must be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than four years after the date of export, reexport or transfer (in-country).

3. Section 740.14 is amended by revising paragraphs (h)(1) and (2) to read as follows:
§ 740.14 Baggage (BAG).

(h) Special provisions: personal protective “equipment” classified under ECCN 1A613.c or .d and individual protection “equipment” classified under ECCN 1A607.f—(1) Exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:

(i) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and

(ii) The items are for that person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.

(2) Exports, reexports, or in-country transfers to countries identified in Country Group D:5—(i) Iraq. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (h)(1) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.

(ii) Other countries in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (h)(1) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.

PART 774—[AMENDED] 4. The authority citation for part 774 continues to read as follows: Authority:

50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).

5. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins,” add ECCN 1A607 between ECCNs 1A290 and 1A613 to read as follows: Supplement No. 1 to Part 774—the Commerce Control List 1A607 Military dissemination “equipment” for riot control agents, military detection and protection “equipment” for toxicological agents (including chemical, biological, and riot control agents), and related commodities (see List of Items Controlled). License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    List Based License Exceptions (See Part 740 for a description of all license exceptions) LVS: N/A GBS: N/A CIV: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 1A607. List of Items Controlled Related Controls: (1) Vaccines identified in ECCN 1C991 are not controlled by this ECCN. (2) See 22 CFR 121.1 (USML), Category XIV(h), for vaccines that are subject to the ITAR. (3) Protection and detection equipment and related items identified in ECCN 1A004, 1A995, or 2B351 are not controlled by this ECCN. (4) See 22 CFR 121.1 (USML), Category XIV(f), for dissemination, detection and protection equipment that is subject to the ITAR. (5) See ECCN 0A919 for “military commodities” located and produced outside the United States that incorporate more than a de minimis amount of US-origin “600 series” controlled content. Related Definitions: N/A Items:

    a. through d. [Reserved]

    e. “Equipment” “specially designed” for military use and for the dissemination of any of the riot control agents controlled in ECCN 1C607.a.

    f. Protection “equipment” (including air conditioning units, protective coatings, and protective clothing):

    f.1. Not controlled by USML Category XIV(f); and

    f.2. “Specially designed” for military use and for defense against:

    f.2.1. Materials specified by USML Category XIV (a) or (b); or

    f.2.2. Riot control agents controlled in 1C607.a.

    g. Decontamination “equipment”:

    g.1. Not controlled by USML Category XIV(f); and

    g.2. “Specially designed” for military use and for decontamination of objects contaminated with materials controlled by USML Category XIV(a) or (b).

    h. “Equipment”:

    h.1. Not controlled by USML Category XIV(f); and

    h.2. “Specially designed” for military use and for the detection or identification of:

    h.2.1. Materials specified by USML Category XIV(a) or (b); or

    h.2.2. Riot control agents controlled by ECCN 1C607.a.

    i. [Reserved]

    j. “Equipment” “specially designed” to:

    j.1. Interface with a detector, shelter, vehicle, vessel, or aircraft controlled by the USML or a “600 series” ECCN; and

    j.2. Collect and process samples of articles controlled in USML Category XIV(a) or (b).

    k. Medical countermeasures that are “specially designed” for military use (including pre- and post-treatments, antidotes, and medical diagnostics) and “specially designed” to counter chemical agents controlled by the USML Category XIV(a).

    Note: Examples of “equipment” controlled by this entry are barrier and non-barrier creams and filled autoinjectors (e.g., combopens where one injector contains 2-PAM and the other atropine) if “specially designed” to counter such agents.

    l. through w. [Reserved]

    x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by ECCN 1A607.e, .f, .g, .h, or .j or for a defense article controlled by USML Category XIV(f) and that are not enumerated or otherwise described elsewhere in the USML.

    6. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins,” add ECCN 1B607 between ECCNs 1B234 and 1B608 to read as follows: 1B607 Military test, inspection, and production “equipment” and related commodities “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities identified in ECCN 1A607 or 1C607, or defense articles enumerated or otherwise described in USML Category XIV (see List of Items Controlled). License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    List Based License Exceptions (See Part 740 for a description of all license exceptions) LVS: $1500 GBS: N/A CIV: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 1B607. List of Items Controlled Related Controls: (1) See ECCN 2B350 for controls on certain incinerators. (2) See ECCN 0A919 for “military commodities” located and produced outside the United States that incorporate more than a de minimis amount of US-origin “600 series” controlled content. Related Definitions: N/A Items:

    a. “Equipment” “specially designed” for the destruction of the chemical agents controlled by USML Category XIV(a).

    Note to 1B607.a: ECCN 1B607.a includes controls over facilities “specially designed” for destruction operations. This paragraph .a does not control incinerators and “specially designed” handling facilities or “specially designed” waste supply systems therefor.

    b. Test facilities and “equipment” “specially designed” for military certification, qualification, or testing of commodities controlled by ECCN 1A607.e, .f, .g, .h, or .j or by USML Category XIV(f), except for XIV(f)(1).

    c. Tooling and “equipment” “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities controlled by ECCN 1A607.e, .f .g, .h, or .j or USML Category XIV(f).

    d. through w. [RESERVED]

    x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by ECCN 1B607.b or .c, or for a defense article controlled by USML Category XIV(f), and that are not enumerated or otherwise described elsewhere in the USML.

    7. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins,” add a new ECCN 1C607 between ECCNs 1C395 and 1C608 to read as follows: 1C607 Tear Gases, Riot Control Agents and materials for the detection and decontamination of chemical warfare agents (see List of Items Controlled). License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry, except 1C607.a.10, .a.11, .a.12, and .a.14 NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    List Based License Exceptions (See Part 740 for a description of all license exceptions) LVS: N/A GBS: N/A CIV: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 1C607. List of Items Controlled Related Controls: (1) See ECCN 1A984 for controls on other riot control agents. (2) See 22 CFR 121.1 (USML), Category XIV(b), for modified biological agents and biologically derived substances that are subject to the ITAR. (3) See 22 CFR 121.1 (USML), Category XIV(g), for ITAR controls on antibodies, recombinant protective antigens, polynucleotides, biopolymers or biocatalysts (including the expression vectors, viruses, plasmids, or cultures of specific cells used to produce them) that are “specially designed” for use with articles controlled under USML Category XIV(f). (4) See ECCN 0A919 for “military commodities” located and produced outside the United States that incorporate more than a de minimis amount of US-origin “600 series” controlled content. Related Definitions: N/A Items:

    a. Tear gases and riot control agents including:

    a.1. CA (Bromobenzyl cyanide) (CAS 5798-79-8);

    a.2. CS (o-Chlorobenzylidenemalononitrile or o-Chlorobenzalmalononitrile) (CAS 2698-41-1);

    a.3. CN (Phenylacyl chloride or w-Chloroacetophenone) (CAS 532-27-4);

    a.4. CR (Dibenz-(b,f)-1,4-oxazephine) (CAS 257-07-8);

    a.5. Adamsite (Diphenylamine chloroarsine or DM) (CAS 578-94-9);

    a.6. N-Nonanoylmorpholine, (MPA) (CAS 5299-64-9);

    a.7. Dibromodimethyl ether (CAS 4497-29-4);

    a.8. Dichlorodimethyl ether (ClCi) (CAS 542-88-1);

    a.9. Ethyldibromoarsine (CAS 683-43-2);

    a.10. Bromo acetone (CAS 598-31-2);

    a.11. Bromo methylethylketone (CAS 816-40-0);

    a.12. Iodo acetone (CAS 3019-04-3);

    a.13. Phenylcarbylamine chloride (CAS 622-44-6);

    a.14. Ethyl iodoacetate (CAS 623-48-3);

    Note to 1C607.a: ECCN 1C607.a. does not control the following: formulations containing 1% or less of CN or CS; individually packaged tear gases or riot control agents for personal self-defense purposes that are controlled by ECCN 1A984; or active constituent chemicals, and combinations thereof, identified and packaged for food production or medical purposes.

    b. “Biopolymers,” not controlled by USML Category XIV(g) “specially designed” or processed for the detection or identification of chemical warfare agents specified by USML Category XIV(a), and the cultures of specific cells used to produce them.

    c. “Biocatalysts,” and biological systems therefor, not controlled by USML Category XIV(g) “specially designed” for the decontamination or degradation of chemical warfare agents controlled in USML Category XIV (a), as follows:

    c.1. “Biocatalysts” “specially designed” for the decontamination or degradation of chemical warfare agents controlled in USML Category XIV(a) resulting from directed laboratory selection or genetic manipulation of biological systems;

    c.2. Biological systems containing the genetic information specific to the production of “biocatalysts” specified by 1C607.c.1, as follows:

    c.2.a. “Expression vectors;”

    c.2.b. Viruses; or

    c.2.c. Cultures of cells.

    Note to 1C607.b and .c: The cultures of cells and biological systems are exclusive and these sub-items do not apply to cells or biological systems for civil purposes, such as agricultural, pharmaceutical, medical, veterinary, environmental, waste management, or in the food industry.

    d. Chemical mixtures not controlled by USML Category XIV(f) “specially designed” for military use for the decontamination of objects contaminated with materials specified by USML Category XIV(a) or (b).

    8. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins,” add ECCN 1D607 between ECCNs 1D390 and 1D608 to read as follows: 1D607 “Software” “specially designed” for the “development,” “production,” operation, or maintenance of items controlled by 1A607, 1B607 or 1C607 (see List of Items Controlled). License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry, except “software” for 1C607.a.10, .a.11, .a.12, and .a.14 NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    List Based License Exceptions (See Part 740 for a description of all license exceptions) CIV: N/A TSR: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 1D607. List of Items Controlled Related Controls: (1) “Software” directly related to articles enumerated or otherwise described in USML Category XIV is subject to the ITAR (see 22 CFR § 121.1, Category XIV(m)). “Software” controlled by USML Category XIV(m) includes “software” directly related to any equipment containing reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under U.S. Department of Defense contract or funding for the detection, identification, warning or monitoring of items controlled in paragraphs (a) or (b) of USML Category XIV, or for chemical or biological agents specified by U.S. Department of Defense funding or contract. (2) See ECCN 0A919 for “military commodities” located and produced outside the United States that incorporate more than a de minimis amount of US-origin “600 series” controlled content. Related Definitions: N/A Items:

    a. “Software” “specially designed” for the “development,” “production,” operation, or maintenance of commodities controlled by ECCN 1A607, 1B607, or 1C607.

    b. [RESERVED]

    9. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins,” add a new ECCN 1E607 between ECCNs 1E355 and 1E608 to read as follows: 1E607 “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by ECCN 1A607, 1B607, 1C607, or 1D607 (see List of Items Controlled). License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry, except “technology” for 1C607.a.10, .a.11, .a.12, and .a.14 and for 1D607 “software” therefor NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    List Based License Exceptions (See Part 740 for a description of all license exceptions) CIV: N/A TSR: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 1E607. List of Items Controlled Related Controls: Technical data directly related to defense articles enumerated or otherwise described in USML Category XIV are subject to the ITAR (see 22 CFR § 121.1, Category XIV(m)). Technical data controlled by USML Category XIV(m) include technical data directly related to any equipment containing reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under U.S. Department of Defense contract or funding for the detection, identification, warning or monitoring of items controlled in paragraphs (a) or (b) of USML Category XIV, or for chemical or biological agents specified by U.S. Department of Defense funding or contract. Related Definitions: N/A Items:

    a. “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by ECCN 1A607, 1B607, 1C607 or 1D607.

    Note to 1E607.a: ECCN 1E607.a includes “technology” “required” exclusively for the incorporation of “biocatalysts” controlled by ECCN 1C607.c.1 into military carrier substances or military material.

    b. [RESERVED]

    10. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 6—Sensors and Lasers,” add a new ECCN 6B619 between ECCNs 6B108 and 6B995 to read as follows: 6B619 Test, inspection, and production “equipment” and related commodities “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities enumerated or otherwise described in USML Category XVIII (see List of Items Controlled) License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    License Exceptions LVS: $1500 GBS: N/A CIV: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 6B619. List of Items Controlled Related Controls: “Parts,” “components,” “accessories,” “attachments,” and associated systems or “equipment” “specially designed” for defense articles enumerated or otherwise described in paragraphs (a) or (b) of USML Category XVIII are subject to the ITAR (see 22 CFR 121.1, Category XVIII(e)). Related Definitions: N/A Items:

    a. Tooling, templates, jigs, mandrels, molds, dies, fixtures, alignment mechanisms, and test “equipment” not enumerated or otherwise described in USML Category XVIII and not elsewhere specified on the USML that are “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities controlled by USML Category XVIII.

    b. through w. [Reserved]

    x. “Parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control under paragraph .a of this ECCN and not enumerated or otherwise described in USML Category XVIII and not elsewhere specified on the USML.

    11. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 6—Sensors and Lasers,” add a new ECCN 6D619 between ECCNs 6D201 and 6D991 to read as follows: 6D619 “Software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by 6B619. License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    License Exceptions CIV: N/A TSR: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 6D619. List of Items Controlled Related Controls: “Software” directly related to articles enumerated or otherwise described in USML Category XVIII is subject to the ITAR (See 22 CFR 121.1, Category XVIII(f)). Related Definitions: N/A Items:

    The list of items controlled is contained in the ECCN heading.

    12. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 6—Sensors and Lasers,” add ECCN 6E619 between ECCNs 6E202 and 6E990 to read as follows: 6E619 “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul or refurbishing of commodities controlled by 6B619 or “software” controlled by 6D619. License Requirements Reason for Control: NS, RS, AT, UN Control(s) Country chart
  • (see Supp. No. 1
  • to Part 738)
  • NS applies to entire entry NS Column 1 RS applies to entire entry RS Column 1 AT applies to entire entry AT Column 1 UN applies to entire entry See § 746.1(b) for UN controls
    License Exceptions CIV: N/A TSR: N/A Special Conditions for STA STA: Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any item in 6E619. List of Items Controlled Related Controls: Technical data directly related to articles enumerated or otherwise described in USML Category XVIII are subject to the ITAR (See 22 CFR 121.1, Category XVIII(f)). Related Definitions: N/A Items:

    The list of items controlled is contained in the ECCN heading.

    Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-17506 Filed 7-27-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF STATE 22 CFR Part 121 [Public Notice: 9466] RIN 1400-AD03 Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Categories XIV and XVIII AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    As part of the President's Export Control Reform effort, the Department of State amends the International Traffic in Arms Regulations (ITAR) to revise Categories XIV (toxicological agents, including chemical agents, biological agents, and associated equipment) and XVIII (directed energy weapons) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control on the USML. The revisions contained in this rule are part of the Department of State's retrospective plan under E.O. 13563, completed on August 17, 2011. The Department of State's full plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.

    DATES:

    This Final rule is effective on December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2792; email [email protected] ATTN: ITAR Amendment—USML Categories XIV and XVIII.

    SUPPLEMENTARY INFORMATION:

    The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles,” are identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List (CCL) in Supplement No. 1 to Part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports and reexports. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other set of regulations are subject to the EAR.

    All references to the USML in this rule are to the list of defense articles controlled for the purpose of export or temporary import pursuant to the ITAR, and not to the defense articles on the USML that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) for the purpose of permanent import under its regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA), all defense articles controlled for export or import are part of the USML under the AECA. The list of defense articles controlled by ATFE for the purpose of permanent import is the U.S. Munitions Import List (USMIL). The transfer of defense articles from the ITAR's USML to the EAR's CCL does not affect the list of defense articles controlled on the USMIL.

    Revision of Category XIV

    This final rule revises USML Category XIV, covering toxicological agents, including chemical agents, biological agents, and associated equipment. The revisions are undertaken in order to more accurately describe the articles within the subject categories, and to establish a “bright line” between the USML and the CCL for the control of these articles. The Department published a proposed rule for these revisions on June 17, 2015 (80 FR 34572).

    This final rule adopts for those pathogens and toxins that meet specific capabilities listed in paragraph (b) the “Tier 1” pathogens and toxins established in the Department of Health and Human Services and the United States Department of Agriculture select agents and toxins regulations (42 CFR part 73 and 9 CFR part 121). The Tier 1 pathogens and toxins that do not meet these capabilities remain controlled in Export Control Classification Number (ECCN) 1C351 on the CCL.

    Additionally, this rule, in concert with the analogous rule published by the Department of Commerce, moves riot control agents to the export jurisdiction of the Department of Commerce, as well as the articles covered previously in paragraphs (j), (k), and (l), which include test facilities, equipment for the destruction of chemical and biological agents, and tooling for production of articles in paragraph (f), respectively.

    Other changes include the addition of paragraph (a)(5) to control chemical warfare agents “adapted for use in war” and not elsewhere enumerated, as well as the removal of paragraphs (f)(3) and (f)(6) and movement to the CCL of equipment for the sample collection and decontamination or remediation of chemical agents and biological agents. Paragraph (f)(5) for collective protection was removed and partially combined in paragraph (f)(4) or the CCL. Paragraph (g) enumerates antibodies, recombinant protective antigens, polynucleotides, biopolymers, or biocatalysts exclusively funded by a Department of Defense contract for detection of the biological agents listed in paragraph (b)(1)(ii).

    The Department notes that the controls in paragraph (f)(2) that include the phrase “developed under a Department of Defense contract or other funding authorization” do not apply when the Department of Defense acts solely as a servicing agency for a contract on behalf of another agency of the U.S. government. Moreover, “other funding authorization” refers to other funding authorization from the Department of Defense.

    The Department notes that the controls in paragraphs (g)(1) and (h) that include the phrase “exclusively funded by a Department of Defense contract” do not apply when the Department of Defense acts solely as a servicing agency for a contract on behalf of another agency of the U.S. government, or, for example, in cases where the Department of Defense provides initial funding for the development of an item but another agency of the U.S. government provides funding to further develop or adapt the item.

    Paragraph (h) enumerates certain vaccines funded exclusively by the Department of Defense, as well as certain vaccines controlled in (h)(4) that are specially designed for the sole purpose of protecting against biological agents and biologically derived substances identified in (b). Thus, the scope of vaccines controlled in (h)(4) is circumscribed by the nature of funding and the satisfaction of the term “specially designed” as that term is defined in ITAR § 120.41. In evaluating the scope of this control, please note that the Department offers a decision tool to aid exporters in determining whether a defense article meets the definition of “specially designed.” This tool is available at http://www.pmddtc.state.gov/licensing/dt_SpeciallyDesigned.htm.

    Paragraph (i) is updated to provide better clarity on the scope of the control by including examples of Department of Defense tools that are used to determine or estimate potential effects of chemical or biological weapons strikes and incidents in order to plan to mitigate their impacts.

    A new paragraph (x) has been added to USML Category XIV, allowing ITAR licensing on behalf of the Department of Commerce for commodities, software, and technology subject to the EAR, provided those commodities, software, and technology are to be used in or with defense articles controlled in USML Category XIV and are described in the purchase documentation submitted with the application. The intent of paragraph (x) is not to impose ITAR jurisdiction on commodities, software, and technology subject to EAR controls. Items described in paragraph (x) remain subject to the jurisdiction of the EAR. The Department added the paragraph as a regulatory reference point in response to industry requests to be able to use a Department of State license to export shipments that have a mix of ITAR controlled items and EAR controlled items for use in or with items described in that category.

    Finally, this rule establishes USML control in subparagraph (f)(2) of certain chemical or biological agent equipment only when it contains reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under a Department of Defense contract or other funding authorization.

    One commenter questioned whether the use of the words “to include” in proposed paragraph (a) was meant to indicate an all-inclusive list or only examples of controlled agents. The Department has modified paragraph (a) to replace “to include” with the all-inclusive “as follows” in light of this comment, and in order to align this language with the comparable language that appears in paragraph (b).

    A commenting party suggested that the removal of former subparagraph (n)(2) would inhibit university research with respect to agents controlled by paragraph (a). The Department disagreed with this comment because former subparagraph (n)(2) applied only to agents controlled in paragraph (b).

    Several commenters expressed confusion with respect to subparagraph (b)(1), arguing that, for example, the list in subparagraph (b)(1)(ii) was incomplete, or represented a migration to ITAR control of agents or research formerly subject to the EAR. The Department clarifies that all of the biological agents subject to control under revised paragraph (b) were also subject to ITAR control under former paragraph (b), which generally controlled those biological agents or biologically derived substances that were specifically developed, configured, adapted, or modified for the purpose of increasing their capability to produce casualties in humans or livestock, degrade equipment, or damage crops.

    By contrast, subparagraph (b)(1) of revised Category XIV controls only those agents that meet the criteria of both subparagraphs (b)(1)(i) and (b)(1)(ii). To be controlled, the agent must be one of the specific listed microorganisms or toxins, or their non-naturally occurring genetic elements, and it must have been modified in a manner that is known or reasonably expected to result in an increase of at least one of two specific criteria. Subparagraph (b)(2) controls only biological agents that meet the criteria of subparagraph (b)(2)(i) and do so in a manner that is known or reasonably expected to result in an increase of at least one of three specific criteria in (b)(2)(ii). Subparagraphs (b)(1) and (b)(2) represent a narrowing of the universe of agents subject to control under the paragraph (b), and a more specific means of control than the broad, generic language of former paragraph (b).

    One commenting party recommended an exclusion in paragraph (b) for research funded by the National Institutes of Health, the Centers for Disease Control and Prevention, or the U.S. Department of Agriculture. Given the refined and narrowed scope of control in paragraph (b) as described above, which focuses on specific and weaponized biological agents, the Department disagreed with this suggestion because it is overly broad.

    Four commenting parties argued that regulation of biological agents in paragraph (b) is not necessary in the manner proposed because of the existence of the Federal Select Agent Program and the Dual Use Research of Concern policy. The Department disagreed with these comments because the referenced program and policy are not munitions export control regimes and do not share the national security and foreign policy objectives of the ITAR. As stated above, the articles described in revised paragraph (b) were subject to the ITAR under the previous Category XIV and do not include any biological agents that were not previously subject to the ITAR; as such, there is no expansion of control beyond what existed previously, and the relationship between these agents and the Federal Select Agent Program or Dual Use Research of Concern policy is unchanged.

    One commenting party observed that subparagraph (b)(1)(ii) of the proposed rule adopted the Tier 1 list of select agents meeting certain criteria, but did not incorporate the exclusions of the Federal Select Agent Program. Revised Category XIV is not intended to intersect with the Federal Select Agent Program. The ITAR and Federal Select Agent Program do not share identical objectives; accordingly, it would be inappropriate to provide common exclusions for largely unrelated regulatory concerns.

    Four commenters requested the reinstatement of former subparagraph (n)(2), which provided an exclusion for agents otherwise controlled in paragraph (b) that had been modified for civil applications. The Department disagreed with these comments because, as noted above, paragraph (b) has been reduced in scope significantly to control only weaponized strains of specified agents. By contrast, former paragraph (b) required the subparagraph (n)(2) exclusion because it was otherwise overly broad. Since the revised paragraph (b) does not capture modifications that would be undertaken for civil applications that do not merit control, the subparagraph (n)(2) exclusion is no longer appropriate.

    One commenting party stated that former paragraph (b) was in essence an empty box because the export licensing of biological agents as munitions would violate the Biological Weapons Convention (BWC). The Department disagreed with this comment because such treatment of biological agents does not violate the BWC when used in the development of countermeasures, which serve “prophylactic” or “protective” purposes explicitly permitted by the BWC. Moreover, prevention of the acquisition of weaponized biological agents for impermissible purposes, as is achieved through regulation of such agents under the ITAR, is consistent with the objectives of the BWC.

    A commenter expressed the view that based on proposed paragraph (b), an expression vector that produces Ebola virus envelope protein for use in pseudotyping minimal lentiviral vectors, even though harmless in itself, might be subject to ITAR control because the envelope is a pathogenicity factor to Ebola virus, even in the absence of Ebola virus. The Department disagrees with this comment because the described item would not be controlled by paragraph (b) unless it satisfied the criteria of subparagraph (b)(1)(i), particularly taken together with Note 2 to paragraph (b).

    One commenter suggested that the list of biological agents in paragraph (b)(1)(ii) fails to take into account the danger and exposure risk presented by each toxin. The Department notes, as stated above, that the list in subparagraph (b)(1)(ii) does not stand alone as a list of agents subject to control. To be subject to the ITAR, an agent listed in subparagraph (b)(1)(ii) must also meet the criteria of subparagraph (b)(1)(i).

    Four commenting parties indicated that the properties referenced in subparagraph (b)(1)(i) and (b)(2)(ii) are not properties for which researchers would typically test, and that the proposed language might result in mandatory testing for these properties to avoid inadvertent violations. The Department revised the language in these subparagraphs to limit the analysis of modifications to those that are known to or are reasonably expected to result in an increase in the subject properties.

    Two commenters suggested that the research subject to control in subparagraph (b)(1) should focus on the intent or purpose of the research. The Department disagreed with this comment in light of the revisions made to subparagraphs (b)(1)(i) and (b)(2)(ii) in response to public comments, and also in order to avoid the introduction of an intent or end use-based control, which has been a longstanding objective of the ECR initiative.

    Three commenting parties observed that the use of “e.g.” in subparagraph (b)(1)(i)(A) suggests that the parenthetical examples of persistence in a field environment is not complete. The Department changed “e.g.” to “i.e.,” and updated the parenthetical list accordingly.

    One commenter requested a definition of “persistence in a field environment” in subparagraph (b)(2)(i)(A) to avoid ambiguity. The Department refined the subparagraph to provide more comprehensive criteria.

    Three commenters noted that ECCN 1C352 has been combined with ECCN 1C351, and that any references to the former should be deleted from Category XIV. The Department agrees with these comments.

    Two commenting parties submitted comments that suggested a misunderstanding that references in subparagraph (b)(2) to ECCNs 1C351, 1C353, and 1C354 would move agents controlled under those ECCNs to the jurisdiction of the Department of State. No biological agents are moved from the CCL to the USML as a result of this rulemaking, nor was such movement suggested in the proposed rule. The ECCNs are referenced merely in order to better define the articles subject to control, to which the criteria of both subparagraphs (b)(2)(i) and (b)(2)(ii) must apply.

    Two commenting parties observed that the use of “e.g.” in subparagraph (b)(2)(ii)(A) suggests that the parenthetical examples of persistence in a field environment is not complete. The Department changed “e.g.” to “i.e.,” and updated the parenthetical list accordingly.

    Similarly, two commenting parties observed that the use of “e.g.” in subparagraph (b)(2)(ii)(B) indicates that the list of possible dispersal characteristics is not complete. In this case, the Department confirms that the parenthetical list is intended to be exemplary in nature.

    One commenter stated that Note 2 to paragraph (b)'s limitation to wild type agents is still unnecessarily restrictive with respect to the agents listed in subparagraph (b)(1)(ii). The Department disagreed with this comment because, as indicated previously, to be subject to the ITAR an agent listed in subparagraph (b)(2)(ii) must also meet the criteria of subparagraph (b)(2)(i).

    A commenter remarked that the controls described in the proposed rule would establish ITAR control over technical data and research and development activities related to, inter alia, biological agents described in paragraph (b). Bearing in mind the fact that all agents controlled under revised paragraph (b) were subject to control under former paragraph (b), the Department believes that control over such information and activities is appropriate given the narrowed scope of revised paragraph (b) to specific weaponized biological agents.

    A commenting party identified typographical errors in subparagraphs (c)(4) and (c)(5). The Department made the appropriate corrections.

    Two commenters requested clarification regarding the phrase “Department of Defense contract or funding authorization,” as it appears in subparagraphs (f)(1)(ii), (f)(2), and (f)(2)(ii). The Department clarifies that the quoted language captures a range of possible Department of Defense funding authorization mechanisms that extend beyond contracts, such as grants. While these subparagraphs do not require exclusive funding by the Department of Defense to cause the articles to become subject to ITAR control, and there is no de minimis funding level that triggers control, the use of “specially designed” in certain of these subparagraphs limits the scope of control, in addition to other specific criteria set forth in the subparagraphs.

    A commenting party questioned the intent and meaning of Note 3 to paragraph (f)(2). The Department deleted the note.

    Two commenting parties recommended a revision to subparagraph (f)(2)(i) to control only relevant equipment for chemical or biological agents specified in the Department of Defense contract or other funding authorization as intended for control under USML Category XIV, or to clarify the funding mechanism that specifies the chemical or biological agent and thus triggers the provision. The Department disagreed with the former comment because it would introduce a discretionary contract mechanism that could allow for the subjective application or removal of ITAR control, but modified the subparagraph to better define the scope of control. The modifications clarify the link between the funding mechanisms referenced in subparagraph (f)(2) and (f)(2)(ii).

    One commenting party recommended the movement to the EAR of all articles controlled in subparagraph (f)(4), or the removal of the Significant Military Equipment (SME) designation at a minimum. The Department disagreed with this comment because the commenter did not provide a sufficient rationale to compel removal from the USML or the SME designation for these articles.

    A comment recommended that subparagraph (f)(4)(iii) be revised to remove the trade name ASZM-TEDA and instead specify the parameters or criteria that merit control for activated carbon products. The Department revised the subparagraph to reference the specification that merits control.

    Two commenters observed that paragraph (f)(4)(iv) would not distinguish between military and non-military protective apparel, but would rely on a “breakthrough test” that could capture garments designed to National Fire Protection Association standards or designed to integrate with civil gas masks if they met breakthrough levels. The Department has refined subparagraph (f)(4)(iv) to the same paragraph to more precisely describe the articles that warrant control and incorporated the elements described in the prior Note into the control parameters.

    One commenting party recommended that Chemical Agent Resistant Coatings (CARC) be moved from subparagraph (f)(7) to the EAR. The Department updated the subparagraph to control the appropriate specification, but disagreed with the remainder of the comment in order to maintain ITAR control over coatings that have been qualified to military specifications.

    A commenter suggested the replacement of the word “qualified” in subparagraph (f)(7) with the phrase “meet the requirements of.” The Department disagreed with this comment because the phrasing used is intended to mean that the article has in fact been qualified by the Department of Defense to the relevant standard.

    One commenting party recommended the removal of the SME designation for subparagraph (f)(7). The Department disagreed with this comment because the commenter did not provide a sufficient rationale for removal of the designation.

    Three commenting parties suggested that subparagraph (g)(1) should control relevant articles based on parameters or criteria other than the funding source. The Department notes that subparagraph (g)(1) controls only those relevant articles that are exclusively funded by the Department of Defense, for detection of the biological agents listed in subparagraph (b)(1)(ii). The Department believes that this is an appropriately tailored subparagraph, particularly in light of the requirement that Department of Defense funding be exclusive.

    One commenter presented a similar comment with respect to the analogous exclusive funding provision in subparagraph (h). Again, the Department disagrees with this comment because the exclusive funding requirement narrows the range of controlled vaccines to an appropriate scope.

    A commenting party suggested that the use of specially designed in paragraph (h) undermines the notion of control due to funding source, as certain vaccines could be released through ITAR § 120.41(b). The Department disagrees with this comment because it is not likely that ITAR § 120.41(b) would allow for the release of vaccines that were exclusively funded by the Department of Defense to protect against biological agents controlled under paragraph (b).

    A commenter requested clarification as to whether subparagraph (h)(4) is subject to the requirement that the vaccine be funded exclusively by a Department of Defense contract or other funding authorization. Since this exclusive funding requirement appears in subparagraph (h), the Department confirms that this is the case.

    Revision of Category XVIII

    This final rule revises USML Category XVIII, covering directed energy weapons. As with USML Category XIV, the revisions are undertaken in order to more accurately describe the articles within the subject categories, and to establish a “bright line” between the USML and the CCL for the control of these articles. This final rule revises paragraph (a) to control only those articles that, other than as a result of incidental, accidental, or collateral effect, achieve the effects described in the paragraph by way of non-acoustic techniques.

    The articles controlled previously in paragraphs (c) and (d) are moved to the export control jurisdiction of the Department of Commerce.

    The remaining paragraphs in this category underwent conforming changes to bring their structures into alignment with the analogous provisions found in other revised USML categories.

    A commenting party suggested that the reference in proposed paragraph (a) to the “primary purpose” of system or equipment at issue was unclear. The Department revised the paragraph to remove this language and clarify the intended scope of control.

    Two commenting parties recommended revisions to the structure of paragraph (a). The Department revised the paragraph text to enhance clarity and readability.

    A commenter noted that “flash blindness,” as used in proposed paragraph (a), has no commonly understood meaning. The Department revised the subject language to clarify the intended scope of control.

    One commenting party recommended the addition of a note to paragraph (a) to confirm that the paragraph does not control articles subject to control under subparagraphs XI(a)(4)(iii) or XII(b)(9). The Department disagrees with this comment because the USML Order of Review establishes that the paragraph that most specifically identifies a given article will control that article; accordingly, it is not necessary to add clarifying notes of this nature.

    A commenter observed that it was not clear what “associated systems or equipment” meant in proposed paragraph (e). The Department revised the paragraph to match the structure of analogous paragraphs found in other revised USML categories.

    A commenting party recommended a note to paragraph (e) that would indicate that components, parts, accessories, attachments and associated systems or equipment specially designed for articles controlled under paragraph XVIII(e) are subject to the EAR. Noting that no such note has been applied to the analogous paragraphs in other revised USML categories, the Department disagrees with this comment because the inclusion of “specially designed” in paragraph (e) provides the intended scope of control for the articles at issue.

    Regulatory Findings Administrative Procedure Act

    The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department published this rule as a proposed rule (80 FR 34572) with a 60-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

    Regulatory Flexibility Act

    Since the Department is of the opinion that this rule is exempt from the rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

    Unfunded Mandates Reform Act of 1995

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

    Small Business Regulatory Enforcement Fairness Act of 1996

    This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

    Executive Orders 12372 and 13132

    This amendment 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 amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this amendment.

    Executive Order 12866 and 13563

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

    Executive Order 12988

    The Department of State has reviewed the amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Executive Order 13175

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

    Paperwork Reduction Act

    Following is a listing of approved collections that will be affected by revision of the U.S. Munitions List (USML) and the Commerce Control List pursuant to the President's Export Control Reform (ECR) initiative. This rule continues the implementation of ECR. The list of collections pertains to revision of the USML in its entirety, not only to the categories published in this rule. The Department is not proposing or making changes to these collections in this rule. The information collections impacted by the ECR initiative are as follows:

    (1) Statement of Registration, DS-2032, OMB No. 1405-0002.

    (2) Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-0003.

    (3) Application/License for Temporary Import of Unclassified Defense Articles, DSP-61, OMB No. 1405-0013.

    (4) Application/License for Temporary Export of Unclassified Defense Articles, DSP-73, OMB No. 1405-0023.

    (5) Application for Amendment to License for Export or Import of Classified or Unclassified Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB No. 1405-0092.

    (6) Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 1405-0093.

    (7) Maintenance of Records by Registrants, OMB No. 1405-0111.

    List of Subjects in 22 CFR Part 121

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, part 121 is amended as follows:

    PART 121—THE UNITED STATES MUNITIONS LIST 1. The authority citation for part 121 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    2. Section 121.1 is amended by revising U.S. Munitions List Categories XIV and XVIII to read as follows:
    § 121.1 The United States Munitions List. Category XIV—Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment

    *(a) Chemical agents, as follows:

    (1) Nerve agents, as follows:

    (i) O-Alkyl (equal to or less than C10, including cycloalkyl) alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphonofluoridates, such as: Sarin (GB): O-Isopropyl methylphosphonofluoridate (CAS 107-44-8) (CWC Schedule 1A); and Soman (GD): O-Pinacolyl methylphosphonofluoridate (CAS 96-64-0) (CWC Schedule 1A);

    (ii) O-Alkyl (equal to or less than C10, including cycloalkyl) N,N-dialkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphoramidocyanidates, such as: Tabun (GA): O-Ethyl N, N-dimethylphosphoramidocyanidate (CAS 77-81-6) (CWC Schedule 1A); or

    (iii) O-Alkyl (H or equal to or less than C10, including cycloalkyl) S-2-dialkyl (Methyl, Ethyl, n-Propyl or Isopropyl) aminoethyl alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphonothiolates and corresponding alkylated and protonated salts, such as VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate (CAS 50782-69-9) (CWC Schedule 1A);

    (2) Amiton: O,O-Diethyl S-[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (CAS 78-53-5) (CWC Schedule 2A);

    (3) Vesicant agents, as follows:

    (i) Sulfur mustards, such as: 2-Chloroethylchloromethylsulfide (CAS 2625-76-5) (CWC Schedule 1A); Bis(2-chloroethyl)sulfide (HD) (CAS 505-60-2) (CWC Schedule 1A); Bis(2-chloroethylthio)methane (CAS 63839-13-6) (CWC Schedule 1A); 1,2-bis (2-chloroethylthio)ethane (CAS 3563-36-8) (CWC Schedule 1A); 1,3-bis (2-chloroethylthio)-n-propane (CAS 63905-10-2) (CWC Schedule 1A); 1,4-bis (2-chloroethylthio)-n-butane (CWC Schedule 1A); 1,5-bis (2-chloroethylthio)-n-pentane (CWC Schedule 1A); Bis (2-chloroethylthiomethyl)ether (CWC Schedule 1A); Bis (2-chloroethylthioethyl)ether (CAS 63918-89-8) (CWC Schedule 1A);

    (ii) Lewisites, such as: 2-chlorovinyldichloroarsine (CAS 541-25-3) (CWC Schedule 1A); Tris (2-chlorovinyl) arsine (CAS 40334-70-1) (CWC Schedule 1A); Bis (2-chlorovinyl) chloroarsine (CAS 40334-69-8) (CWC Schedule 1A);

    (iii) Nitrogen mustards, or their protonated salts, as follows:

    (A) HN1: Bis (2-chloroethyl) ethylamine (CAS 538-07-8) (CWC Schedule 1A);

    (B) HN2: Bis (2-chloroethyl) methylamine (CAS 51-75-2) (CWC Schedule 1A);

    (C) HN3: Tris (2-chloroethyl) amine (CAS 555-77-1) (CWC Schedule 1A); or

    (D) Other nitrogen mustards, or their salts, having a propyl, isopropyl, butyl, isobutyl, or tertiary butyl group on the bis(2-chloroethyl) amine base;

    Note 1 to paragraph (a)(3)(iii):

    Pharmaceutical formulations containing nitrogen mustards or certain reference standards for these formulations are not considered to be chemical agents and are subject to the EAR when: (1) The pharmaceutical is in the form of a final medical product; or (2) the reference standard contains salts of HN2 [bis(2-chloroethyl) methylamine], the quantity to be shipped is 150 milligrams or less, and individual shipments do not exceed twelve per calendar year per end user.

    Note 2 to paragraph (a)(3)(iii):

    A “final medical product,” as used in this paragraph, is a pharmaceutical formulation that is (1) designed for testing and administration in the treatment of human medical conditions, (2) prepackaged for distribution as a clinical or medical product, and (3) approved for marketing by the Food and Drug Administration or has a valid investigational new drug application (IND) in effect, in accordance with 21 CFR part 312.

    (iv) Ethyldichloroarsine (ED) (CAS 598-14-1); or

    (v) Methyldichloroarsine (MD) (CAS 593-89-5);

    (4) Incapacitating agents, such as:

    (i) 3-Quinuclindinyl benzilate (BZ) (CAS 6581-06-2) (CWC Schedule 2A);

    (ii) Diphenylchloroarsine (DA) (CAS 712-48-1); or

    (iii) Diphenylcyanoarsine (DC) (CAS 23525-22-6);

    (5) Chemical warfare agents not enumerated above adapted for use in war to produce casualties in humans or animals, degrade equipment, or damage crops or the environment. (See the CCL at ECCNs 1C350, 1C355, and 1C395 for control of certain chemicals not adapted for use in war.)

    Note to paragraph (a)(5):

    “Adapted for use in war” means any modification or selection (such as altering purity, shelf life, dissemination characteristics, or resistance to ultraviolet radiation) designed to increase the effectiveness in producing casualties in humans or animals, degrading equipment, or damaging crops or the environment.

    Note 1 to paragraph (a):

    Paragraph (a) of this category does not include the following: Cyanogen chloride, Hydrocyanic acid, Chlorine, Carbonyl chloride (Phosgene), Ethyl bromoacetate, Xylyl bromide, Benzyl bromide, Benzyl iodide, Chloro acetone, Chloropicrin (trichloronitromethane), Fluorine, and Liquid pepper.

    Note 2 to paragraph (a):

    Regarding U.S. obligations under the Chemical Weapons Convention (CWC), refer to Chemical Weapons Convention Regulations (CWCR) (15 CFR parts 710 through 721). As appropriate, the CWC schedule is provided to assist the exporter.

    *(b) Biological agents and biologically derived substances and genetic elements thereof as follows:

    (1) Genetically modified biological agents:

    (i) Having non-naturally occurring genetic modifications that are known to or are reasonably expected to result in an increase in any of the following:

    (A) Persistence in a field environment (i.e., resistance to oxygen, UV damage, temperature extremes, arid conditions, or decontamination processes); or

    (B) The ability to defeat or overcome standard detection methods, personnel protection, natural or acquired host immunity, host immune response, or response to standard medical countermeasures; and

    (ii) Being any micro-organisms/toxins or their non-naturally occurring genetic elements as listed below:

    (A) Bacillus anthracis;

    (B) Botulinum neurotoxin producing species of Clostridium;

    (C) Burkholderia mallei;

    (D) Burkholderia pseudomallei;

    (E) Ebola virus;

    (F) Foot-and-mouth disease virus;

    (G) Francisella tularensis;

    (H) Marburg virus;

    (I) Variola major virus (Smallpox virus);

    (J) Variola minor virus (Alastrim);

    (K) Yersinia pestis; or

    (L) Rinderpest virus.

    (2) Biological agent or biologically derived substances controlled in ECCNs 1C351, 1C353, or 1C354:

    (i) Physically modified, formulated, or produced as any of the following:

    (A) 1-10 micron particle size;

    (B) Particle-absorbed or combined with nano-particles;

    (C) Having coatings/surfactants, or

    (D) By microencapsulation; and

    (ii) Meeting the criteria of paragraph (b)(2)(i) of this category in a manner that is known to or is reasonably expected to result in an increase in any of the following:

    (A) Persistence in a field environment (i.e., resistant to oxygen, UV damage, temperature extremes, arid conditions, or decontamination processes);

    (B) Dispersal characteristics (e.g., reduced susceptibility to shear forces, optimized electrostatic charges); or

    (C) The ability to defeat or overcome: standard detection methods, personnel protection, natural or acquired host immunity, or response to standard medical countermeasures.

    Note 1 to paragraph (b):

    Non-naturally occurring means that the modification has not already been observed in nature, was not discovered from samples obtained from nature, and was developed with human intervention.

    Note 2 to paragraph (b):

    This paragraph does not control biological agents or biologically derived substances when these agents or substances have been demonstrated to be attenuated relative to natural pathogenic isolates and are incapable of causing disease or intoxication of ordinarily affected and relevant species (e.g., humans, livestock, crop plants) due to the attenuation of virulence or pathogenic factors. This paragraph also does not control genetic elements, nucleic acids, or nucleic acid sequences (whether recombinant or synthetic) that are unable to produce or direct the biosynthesis of infectious or functional forms of the biological agents or biologically derived substances that are capable of causing disease or intoxication of ordinarily affected and relevant species.

    Note 3 to paragraph (b):

    Biological agents or biologically derived substances that meet both paragraphs (b)(1) and (b)(2) of this category are controlled in paragraph (b)(1).

    *(c) Chemical agent binary precursors and key precursors, as follows:

    (1) Alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphonyl difluorides, such as: DF: Methyl Phosphonyldifluoride (CAS 676-99-3) (CWC Schedule 1B); Methylphosphinyldifluoride (CAS 753-59-3) (CWC Schedule 2B);

    (2) O-Alkyl (H or equal to or less than C10, including cycloalkyl) O-2-dialkyl (methyl, ethyl, n-Propyl or isopropyl) aminoethyl alkyl (methyl, ethyl, N-propyl or isopropyl) phosphonite and corresponding alkylated and protonated salts, such as QL: O-Ethyl-2-di-isopropylaminoethyl methylphosphonite (CAS 57856-11-8) (CWC Schedule 1B);

    (3) Chlorosarin: O-Isopropyl methylphosphonochloridate (CAS 1445-76-7) (CWC Schedule 1B);

    (4) Chlorosoman: O-Pinacolyl methylphosphonochloridate (CAS 7040-57-5) (CWC Schedule 1B); or

    (5) Methylphosphonyl dichloride (CAS 676-97-1) (CWC Schedule 2B); Methylphosphinyldichloride (CAS 676-83-5) (CWC Schedule 2B).

    (d) [Reserved]

    (e) Defoliants, as follows:

    (1) 2,4,5-trichlorophenoxyacetic acid (CAS 93-76-5) mixed with 2,4-dichlorophenoxyacetic acid (CAS 94-75-7) (Agent Orange (CAS 39277-47-9)); or

    (2) Butyl 2-chloro-4-fluorophenoxyacetate (LNF).

    *(f) Parts, components, accessories, attachments, associated equipment, materials, and systems, as follows:

    (1) Any equipment for the dissemination, dispersion, or testing of articles controlled in paragraphs (a), (b), (c), or (e) of this category, as follows:

    (i) Any equipment “specially designed” for the dissemination and dispersion of articles controlled in paragraphs (a), (b), (c), or (e) of this category; or

    (ii) Any equipment “specially designed” for testing the articles controlled in paragraphs (a), (b), (c), (e), or (f)(4) of this category and developed under a Department of Defense contract or other funding authorization.

    (2) Any equipment, containing reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under a Department of Defense contract or other funding authorization, for the detection, identification, warning, or monitoring of:

    (i) Articles controlled in paragraphs (a) or (b) of this category; or

    (ii) Chemical agents or biological agents specified in the Department of Defense contract or other funding authorization.

    Note 1 to paragraph (f)(2):

    This paragraph does not control articles that are (a) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (b) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.

    Note 2 to paragraph (f)(2):

    Note 1 does not apply to defense articles enumerated on the USML.

    (3) [Reserved]

    (4) For individual protection or collective protection against the articles controlled in paragraphs (a) and (b) of this category, as follows:

    (i) M53 Chemical Biological Protective Mask or M50 Joint Service General Purpose Mask (JSGPM);

    (ii) Filter cartridges containing sorbents controlled in paragraph (f)(4)(iii) or (n) of this category;

    (iii) Carbon meeting MIL-DTL-32101 specifications (e.g., ASZM-TEDA carbon); or

    (iv) Ensembles, garments, suits, jackets, pants, boots, or socks for individual protection, and liners for collective protection that allow no more than 1% breakthrough of GD or no more than 2% breakthrough of any other chemical controlled in paragraph (a) of this category, when evaluated by executing the applicable standard method(s) of testing described in the current version of Test Operating Protocols (TOPs) 08-2-201 or 08-2-501 and using the defined Department of Defense-specific requirements;

    (5)-(6) [Reserved]

    (7) Chemical Agent Resistant Coatings that have been qualified to military specifications (MIL-PRF-32348, MIL-DTL-64159, MIL-C-46168, or MIL-DTL-53039); or

    (8) Any part, component, accessory, attachment, equipment, or system that:

    (i) Is classified;

    (ii) Is manufactured using classified production data; or

    (iii) Is being developed using classified information.

    Note to paragraph (f)(8):

    “Classified” means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government.

    (g) Antibodies, recombinant protective antigens, polynucleotides, biopolymers, or biocatalysts (including their expression vectors, viruses, plasmids, or cultures of specific cells modified to produce them) as follows:

    (1) When exclusively funded by a Department of Defense contract for detection of the biological agents at paragraph (b)(1)(ii) of this category even if naturally occurring;

    (2) Joint Biological Agent Identification and Diagnostic System (JBAIDS) Freeze Dried reagents listed by JRPD-ASY-No and Description respectively as follows:

    (i) JRPD-ASY-0016 Q-Fever IVD Kit;

    (ii) JRPD-ASY-0100 Vaccinia (Orthopox);

    (iii) JRPD-ASY-0106 Brucella melitensis (Brucellosis);

    (iv) JRPD-ASY-0108 Rickettsia prowazekii (Rickettsia);

    (v) JRPD-ASY-0109 Burkholderia ssp. (Burkholderia);

    (vi) JRPD-ASY-0112 Eastern equine encephalitis (EEE);

    (vii) JRPD-ASY-0113 Western equine encephalitis (WEE);

    (viii) JRPD-ASY-0114 Venezuelan equine encephalitis (VEE);

    (ix) JRPD-ASY-0122 Coxiella burnetii (Coxiella);

    (x) JRPD-ASY-0136 Influenza A/H5 IVD Detection Kit;

    (xi) JRPD-ASY-0137 Influenza A/B IVD Detection Kit; or

    (xii) JRPD-ASY-0138 Influenza A Subtype IVD Detection Kit;

    (3) Critical Reagent Polymerase (CRP) Chain Reactions (PCR) assay kits with Catalog-ID and Catalog-ID Product respectively as follows:

    (i) PCR-BRU-1FB-B-K Brucella Target 1 FastBlock Master Mix Biotinylated;

    (ii) PCR-BRU-1FB-K Brucella Target 1 FastBlock Master Mix;

    (iii) PCR-BRU-1R-K Brucella Target 1 LightCycler/RAPID Master Mix;

    (iv) PCR-BURK-2FB-B-K Burkholderia Target 2 FastBlock Master Mix Biotinylated;

    (v) PCR-BURK-2FB-K Burkholderia Target 2 FastBlock Master Mix;

    (vi) PCR-BURK-2R-K Burkholderia Target 2 LightCycler/RAPID Master Mix;

    (vii) PCR-BURK-3FB-B-K Burkholderia Target 3 FastBlock Master Mix Biotinylated;

    (viii) PCR-BURK-3FB-K Burkholderia Target 3 FastBlock Master Mix;

    (ix) PCR-BURK-3R-K Burkholderia Target 3 LightCycler/RAPID Master Mix;

    (x) PCR-COX-1FB-B-K Coxiella burnetii Target 1 FastBlock Master Mix Biotinylated;

    (xi) PCR-COX-1R-K Coxiella burnetii Target 1 LightCycler/RAPID Master Mix;

    (xii) PCR-COX-2R-K Coxiella burnetii Target 2 LightCycler/RAPID Master Mix;

    (xiii) PCR-OP-1FB-B-K Orthopox Target 1 FastBlock Master Mix Biotinylated;

    (xiv) PCR-OP-1FB-K Orthopox Target 1 FastBlock Master Mix;

    (xv) PCR-OP-1R-K Orthopox Target 1 LightCycler/RAPID Master Mix;

    (xvi) PCR-OP-2FB-B-K Orthopox Target 2 FastBlock Master Mix Biotinylated;

    (xvii) PCR-OP-3R-K Orthopox Target 3 LightCycler/RAPID Master Mix;

    (xviii) PCR-RAZOR-BT-X PCR-RAZOR-BT-X RAZOR CRP BioThreat-X Screening Pouch;

    (xix) PCR-RIC-1FB-K Ricin Target 1 FastBlock Master Mix;

    (xx) PCR-RIC-1R-K Ricin Target 1 LightCycler/RAPID Master Mix;

    (xxi) PCR-RIC-2R-K Ricin Target 2 LightCycler/RAPID Master Mix; or

    (xxii) PCR-VEE-1R-K Venezuelan equine encephalitis Target 1 LightCycler/RAPID Master Mix; or

    (4) Critical Reagent Program Antibodies with Catalog ID and Product respectively as follows:

    (i) AB-AG-RIC Aff. Goat anti-Ricin;

    (ii) AB-ALVG-MAB Anti-Alphavirus Generic Mab;

    (iii) AB-AR-SEB Aff. Rabbit anti-SEB;

    (iv) AB-BRU-M-MAB1 Anti-Brucella melitensis Mab 1;

    (v) AB-BRU-M-MAB2 Anti-Brucella melitensis Mab 2;

    (vi) AB-BRU-M-MAB3 Anti-Brucella melitensis Mab 3;

    (vii) AB-BRU-M-MAB4 Anti-Brucella melitensis Mab 4;

    (viii) AB-CHOL-0139-MAB Anti-V.cholerae 0139 Mab;

    (ix) AB-CHOL-01-MAB Anti-V. cholerae 01 Mab;

    (x) AB-COX-MAB Anti-Coxiella Mab;

    (xi) AB-EEE-MAB Anti-EEE Mab;

    (xii) AB-G-BRU-A Goat anti-Brucella abortus;

    (xiii) AB-G-BRU-M Goat anti-Brucella melitensis;

    (xiv) AB-G-BRU-S Goat anti-Brucella suis;

    (xv) AB-G-CHOL-01 Goat anti-V.cholerae 0:1;

    (xvi) AB-G-COL-139 Goat anti-V.cholerae 0:139;

    (xvii) AB-G-DENG Goat anti-Dengue;

    (xviii) AB-G-RIC Goat anti-Ricin;

    (xix) AB-G-SAL-T Goat anti-S. typhi;

    (xx) AB-G-SEA Goat anti-SEA;

    (xxi) AB-G-SEB Goat anti-SEB;

    (xxii) AB-G-SEC Goat anti-SEC;

    (xxiii) AB-G-SED Goat anti-SED;

    (xxiv) AB-G-SEE Goat anti-SEE;

    (xxv) AB-G-SHIG-D Goat anti-Shigella dysenteriae;

    (xxvi) AB-R-BA-PA Rabbit anti-Protective Antigen;

    (xxvii) AB-R-COX Rabbit anti-C. burnetii;

    (xxviii) AB-RIC-MAB1 Anti-Ricin Mab 1;

    (xxix) AB-RIC-MAB2 Anti-Ricin Mab 2;

    (xxx) AB-RIC-MAB3 Anti-Ricin Mab3;

    (xxxi) AB-R-SEB Rabbit anti-SEB;

    (xxxii) AB-R-VACC Rabbit anti-Vaccinia;

    (xxxiii) AB-SEB-MAB Anti-SEB Mab;

    (xxxiv) AB-SLT2-MAB Anti-Shigella-like t x2 Mab;

    (xxxv) AB-T2T-MAB1 Anti-T2 Mab 1;

    (xxxvi) AB-T2T-MAB2 Anti-T2 Toxin 2;

    (xxxvii) AB-VACC-MAB1 Anti-Vaccinia Mab 1;

    (xxxviii) AB-VACC-MAB2 Anti-Vaccinia Mab 2;

    (xxxix) AB-VACC-MAB3 Anti-Vaccinia Mab 3;

    (xl) AB-VACC-MAB4 Anti-Vaccinia Mab 4;

    (xli) AB-VACC-MAB5 Anti-Vaccinia Mab 5;

    (xlii) AB-VACC-MAB6 Anti-Vaccinia Mab 6;

    (xliii) AB-VEE-MAB1 Anti-VEE Mab 1;

    (xliv) AB-VEE-MAB2 Anti-VEE Mab 2;

    (xlv) AB-VEE-MAB3 Anti-VEE Mab 3;

    (xlvi) AB-VEE-MAB4 Anti-VEE Mab 4;

    (xlvii) AB-VEE-MAB5 Anti-VEE Mab 5;

    (xlviii) AB-VEE-MAB6 Anti-VEE Mab 6; or

    (xlix) AB-WEE-MAB Anti-WEE Complex Mab.

    (h) Vaccines exclusively funded by a Department of Defense contract, as follows:

    (1) Recombinant Botulinum ToxinA/B Vaccine;

    (2) Recombinant Plague Vaccine;

    (3) Trivalent Filovirus Vaccine; or

    (4) Vaccines specially designed for the sole purpose of protecting against biological agents and biologically derived substances identified in paragraph (b) of this category.

    Note to paragraph (h):

    See ECCN 1A607.k for military medical countermeasures such as autoinjectors, combopens, and creams.

    (i) Modeling or simulation tools, including software controlled in paragraph (m) of this category, for chemical or biological weapons design, development, or employment developed or produced under a Department of Defense contract or other funding authorization (e.g., the Department of Defense's HPAC, SCIPUFF, and the Joint Effects Model (JEM)).

    (j)-(l) [Reserved]

    (m) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (l) and (n) of this category. (See § 125.4 of this subchapter for exemptions.)

    (n) Developmental countermeasures or sorbents funded by the Department of Defense via contract or other funding authorization;

    Note 1 to paragraph (n):

    This paragraph does not control countermeasures or sorbents that are (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.

    Note 2 to paragraph (n):

    Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.

    Note 3 to paragraph (n):

    This paragraph is applicable only to those contracts and funding authorizations that are dated July 28, 2017, or later.

    (o)-(w) [Reserved]

    (x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category.

    Note to paragraph (x):

    Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).

    Category XVIII—Directed Energy Weapons

    * (a) Directed energy weapons as follows:

    (1) Systems or equipment that, other than as a result of incidental, accidental, or collateral effect:

    (i) Degrade, destroy or cause mission-abort of a target;

    (ii) Disturb, disable, or damage electronic circuitry, sensors or explosive devices remotely;

    (iii) Deny area access;

    (iv) Cause lethal effects; or

    (v) Cause ocular disruption or blindness; and

    (2) Use any non-acoustic technique such as lasers (including continuous wave or pulsed lasers), particle beams, particle accelerators that project a charged or neutral particle beam, high power radio-frequency (RF), or high pulsed power or high average power radio frequency beam transmitters.

    *(b) Systems or equipment specially designed to detect, identify, or provide defense against articles specified in paragraph (a) of this category.

    (c)-(d) [Reserved]

    (e) Components, parts, accessories, attachments, systems or associated equipment specially designed for any of the articles in paragraphs (a) or (b) of this category.

    (f) Developmental directed energy weapons funded by the Department of Defense via contract or other funding authorization, and specially designed parts and components therefor;

    Note 1 to paragraph (f):

    This paragraph does not control directed energy weapons (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.

    Note 2 to paragraph (f):

    Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.

    Note 3 to paragraph (f):

    This paragraph is applicable only to those contracts and funding authorizations that are dated July 28, 2017, or later.

    (g) Technical data (see § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category;

    (x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category.

    Note to paragraph (x):

    Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).

    Rose E. Gottemoeller, Under Secretary, Arms Control and International Security, Department of State.
    [FR Doc. 2016-17505 Filed 7-27-16; 8:45 am] BILLING CODE 4710-25-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 33 [EPA-HQ-OA-2006-0278; FRL-9946-27-OA] RIN 2090-AA40 Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance Agreements AGENCY:

    Environmental Protection Agency.

    ACTION:

    Direct final rule.

    SUMMARY:

    Environmental Protection Agency (EPA) is taking direct final action on revisions to the EPA's Disadvantaged Business Enterprise (DBE) program. We are approving these revisions to improve the practical utility of the program, minimize burden, and clarify requirements that have been the subject of questions from recipients of EPA financial assistance and from disadvantaged business enterprises. These revisions are in accordance with the requirements of the Federal laws that govern the EPA DBE program.

    DATES:

    This rule is effective on October 26, 2016 without further notice, unless EPA receives adverse comment by August 29, 2016. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OA-2006-0278, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Teree Henderson, Office of the Administrator, Office of Small Business Programs (mail code: 1230A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-566-2222; fax number: 202-566-0548; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document.

    BCRLF Brownfields Cleanup Revolving Loan Fund CWSRF Clean Water State Revolving Fund DWSRF Drinking Water State Revolving Fund EDWOSB Economically Disadvantaged Woman Owned Small Business Program DOT Department of Transportation SBA Small Business Administration DBE Disadvantaged Business Enterprise MBE Minority Business Enterprise WBE Women's Business Enterprise EPA Environmental Protection Agency OSBP Office of Small Business Programs SBVPS Small Business Vendor Profile System I. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comments. The actions are intended to improve the practical utility of the program, minimize burden, and clarify requirements that have been the subject of questions from recipients of EPA financial assistance and from disadvantaged business enterprises. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to amend these regulations, if EPA receives signification adverse comments on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

    If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    II. Does this action apply to me?

    If you are a recipient of an EPA financial assistance agreement; an entity receiving an identified loan under a financial assistance agreement capitalizing a revolving loan fund; or a minority-owned, woman-owned, or small business, this rule may affect you. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

    III. What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    B. Tips for Preparing Your Comments. When submitting comments, remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

    • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    • Describe any assumptions and provide any technical information and/or data that you used.

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    • Provide specific examples to illustrate your concerns, and suggest alternatives.

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    • Make sure to submit your comments by the comment period deadline identified.

    IV. Background

    The EPA's DBE Program is implemented through 40 CFR part 33, which was promulgated on March 26, 2008 (73 FR 15904) (hereafter referred to as “part 33”). The DBE program arose out of a review of affirmative action programs in the federal government following the Supreme Court's decision in Adarand Constructors, Inc. v. Federico Pena, Secretary of Transportation, 515 U.S. 200. The rule sets forth a narrowly tailored EPA program that serves the compelling government interest of remedying past and current racial discrimination, by establishing agency-wide DBE procurement objectives.

    The DBE Program has four major components designed to ensure that minority and women-owned businesses have the opportunity to participate in procurements funded by EPA financial assistance agreements. These components are as follows:

    DBE Certification: The current DBE Program requires that in order to be counted as an MBE or WBE under an EPA financial assistance agreement, an entity will have to be certified as such. The EPA requires an MBE/WBE to first seek certification by a federal agency (e.g., the Small Business Administration (SBA), the Department of Transportation (DOT)), or by a State, locality, Indian Tribe, or independent private organization provided their applicable criteria match those under section 8(a) (5) and (6) of the Small Business Act and SBA's applicable 8(a) Business Development Program regulations. The EPA then provides for certification of firms that cannot get certified by one of these entities. The EPA certification program provides an option for businesses that may not fall into a classification that is certified by other sources and provides for these businesses to participate in EPA's DBE program.

    Negotiating Fair Share Goals: The current DBE program requires all recipients of EPA financial assistance agreements to negotiate goals with the Agency for the utilization of MBEs/WBEs for procurements funded by EPA financial assistance agreements. The goals are based on disparity studies or availability analyses showing the availability of MBEs or WBEs in the financial assistance recipient's relevant geographic buying market. These goals do not operate as quotas.

    Using the “Good Faith Efforts”: The “Good Faith Efforts” are measures implored by all EPA financial assistance agreement recipients to ensure that all DBEs have the opportunity to compete for procurements funded by EPA financial assistance dollars, and contain measures a financial assistance recipient may undertake to make procurements more open to MBEs and WBEs.

    Reporting Accomplishments: Under the current DBE program, recipients of EPA financial assistance agreements are required to report on their accomplishments with the program using EPA Form 5700-52A. Reporting is the tool the EPA uses to assess whether or not the program is effective and actually translating into increased opportunities for MBEs and WBEs.

    When the final rule was promulgated, the EPA stated that the agency will “evaluate the propriety of the Disadvantaged Business Enterprise program in 7 years through subsequent rulemaking” (73 FR 15904). On August 13, 2013, OMB approved the information collection request supporting the DBE Program with the following Terms of Clearance: “This ICR is approved for a period of 2 years until 2015, when EPA will undertake a comprehensive review of the Disadvantaged Business Enterprise rule.” The EPA Office of Small Business Programs (OSBP) has subsequently worked collaboratively with various program offices within the Agency and EPA regional DBE coordinators through various face-to-face meetings and conference calls from May-December 2014.

    V. Summary of Changes

    The EPA is amending subparts A through E of part 33 to improve the practical utility of the EPA's DBE program and minimize the burden to affected entities. The EPA made three major revisions in the rule that will significantly impact the way the DBE program currently operates. These changes, which are described in detail in section IV of this preamble, include:

    1. Establishing a self-certification platform for MBEs and WBEs. The EPA removed existing EPA certification requirements in subpart B of part 33 for firms that cannot be certified by another federal agency, and will instead allow qualified firms to self-certify as an MBE or WBE.

    2. Updating the exemption threshold for fair share negotiations. The EPA increased the threshold for recipients exempted from negotiating fair share objectives in subpart D of part 33 from $250,000 to $1 million.

    3. Revising the reporting frequency and applicability. The EPA revised subpart E of part 33 to change the frequency of DBE reporting to annual for all recipients, and limit reporting to financial assistance agreements with funds budgeted for procurements above the simplified acquisition threshold of $150,000.

    In addition to these changes, the EPA made minor changes to part 33 to minimize information collection, clarify requirements, update references, and harmonize requirements with uniform administrative requirements published by the Office of Management and Budget (OMB).

    VI. Detail and Rationale for Changes

    Additional details for the revisions to subparts A through E of part 33 and the rationale for these revisions are described respectively in the sections below.

    A. Subpart A—General Provisions

    The EPA has made several changes to the General Provisions (subpart A) of part 33 to clarify the objectives, applicability, and implementation procedures of the DBE Program. The changes are intended primarily to clarify the requirements that apply to recipients and will not impose any new requirements or burdens that do not already exist.

    First, we changed the first statement of DBE program objectives in 40 CFR 33.101(a) from: “To ensure nondiscrimination in the award of contracts under EPA assistance agreements” to: “To foster nondiscrimination in the award and administration of procurements under EPA financial assistance agreements”. The purpose of this change is to clarify that the program is not limited to particular types of procurements by a recipient of EPA financial assistance (e.g., only to contracts issued), but applies to all goods or services procured by a recipient under any type of financial instrument.

    Second, we clarified to whom the requirements of part 33 apply. We changed the title of 40 CFR 33.102 to “To Whom Does This Part Apply?”. The EPA further amended the text to specify that part 33 applies to recipients of any of four different types of financial assistance agreements issued by the EPA, which are as follows: EPA financial assistance agreements, grants, or cooperative agreements used to capitalize revolving loan funds, Special Appropriations Act Projects, and subawards from an EPA recipient of any such funds. The revision still specifies that part 33 does not apply to work that is conducted outside the United States or its territories and insular possessions, or that is not funded under an EPA financial assistance agreement. Next, the EPA updated the definitions of terms in 40 CFR 33.103. One goal of the revisions to part 33 incorporates the principles established by 2 CFR part 200—Uniform Administrative Requirements, Cost Principles, And Audit Requirements for Federal Awards (hereafter referred to as “part 200”). Part 200 was finalized on October 9, 2015, and supersedes a number of OMB circulars governing the administration of federal financial awards. The reforms adopted by part 200 were intended (1) to streamline OMB guidance for the administration of financial awards to ease burden, and (2) to strengthen oversight of federal awards to increase efficiency and effectiveness of the awards. The rule applies both to federal agencies that issue financial assistance, encompassing the types of financial assistance provided by the EPA, and to recipients of the awards. We made minor amendments throughout Part 33 to incorporate these changes. In 40 CFR 33.104, we amended and added several definitions to be consistent with part 200, as well as update the introduction to the section to state that terms not defined in Part 33 will have the meaning given to them in part 200.

    We also consolidated several existing definitions in 40 CFR 33.104. For example, we added the term “procurement” as “the acquisition of goods and services under a financial assistance agreement as defined by applicable regulations for the particular type of financial assistance received”. The term encompasses all forms of procurement and will replace the current definitions for “construction”, “equipment”, “services”, and “supplies” in subpart A and throughout part 33. To improve readability, we consolidated the definitions of all terms in Part 33 into subpart A by moving all the terms that are defined in 40 CFR part 33, subparts B, C, D, and E into 40 CFR 33.103. For example, we revised 40 CFR 33.202 and 33.303 to move the definitions of “ownership or control,” “socially disadvantaged individual”, and “economically disadvantaged individual” to 40 CFR 33.103. Also, we amended certain definitions to be consistent with the rules of the Small Business Administration (13 CFR part 124) Department of Transportation (DOT) DBE Program, and Title X of the Clean Air Act Amendments of 1990 (42 U.S.C. 7601 note), as well as to add minor clarifications.

    The EPA also made changes to the provisions of 40 CFR 33.104 for recipients to obtain a waiver from any of the requirements of part 33. We made a substantive change that will place a 5 year limitation on the duration of each waiver and a recipient will need to reapply for the waiver at least 60 days prior to the expiration date. Previously, waivers were granted for “a reasonable duration” to be determined by the Director of the Office of Small and Disadvantaged Business Utilization, and could be terminated at any time at the Director's discretion. Providing specific time frames for waiver duration ensures equity and consistency in issuing waivers across all recipients. The rule also changes the title of Director of the Office of Small and Disadvantaged Business Utilization to Director of Small Business Programs to reflect current EPA organizational structure. We made similar harmonizing changes throughout part 33 to update all references to the Office of Small and Disadvantaged Business Utilization (OSDBU) to the Office of Small Business Programs (OSBP).

    The rule also revises 40 CFR 33.105, “What are the compliance and enforcement provisions of this part?” to more clearly parallel the applicable noncompliance remedies available to the EPA under regulations of the Office of Management and Budget for federal awards in 2 CFR 200.338. We changed a reference in 40 CFR 33.105 from 2 CFR part 200 to the more specific applicable reference of 2 CFR 200.338, and to edit the list of examples of remedial actions in 40 CFR 33.105 to be identical to the examples provided in 2 CFR 200.338. The EPA incorporated a new requirement into 40 CFR 33.107 for recordkeeping and records access. We incorporated by reference the recordkeeping and records access provisions of 2 CFR 200.33 through 200.337. These provisions, in general, require recipients of federal awards to retain all records that are relevant to the award for a period of 3 years and to allow the government access to the records for purposes of auditing. These changes are part of the EPA's effort to update part 33 to incorporate the principles established by part 200, as described in section IV.1 of this preamble. Finally, we revised appendix A to part 33. First, we revised appendix A from an appendix of part 33 (following subpart E) to an appendix of the General Provisions. The term and condition of appendix A is a reference of the requirements of 40 CFR 33.106; therefore, including the term and condition as an appendix of subpart A improves the readability of the subpart. We also amended appendix A to add the additional stipulation that any procurement contract signed by a recipient must include the contract provisions of 2 CFR part 200, appendix II. Appendix II clarifies all of the contract provisions that are required by other applicable statutes and regulations for contracts issued by recipients of federal financial assistance. The requirement to comply with appendix II is not a new requirement but adding this stipulation in appendix A to part 33 makes the requirement clearer to recipients and reduces the risk of unintentional noncompliance.

    B. Subpart B—Certification

    The rule will implement several significant changes to the existing certification requirements of subpart B of part 33. First, the EPA revised the certification requirements of 40 CFR 33.204 through 33.211 to revise the EPA's existing certification process for firms that cannot be certified by another federal agency. Under the current requirements of part 33, the EPA requires an MBE or WBE to first seek certification by a federal agency (e.g., the Small Business Administration (SBA), the Department of Transportation (DOT)), or by a State, locality, Indian Tribe, or independent private organization (provided their applicable criteria match those under section 8(a)(5) and (6) of the Small Business Act and SBA's applicable 8(a) Business Development Program regulations). The EPA only considers certifying firms that cannot get certified by one of these entities. The EPA has previously required firms to first seek certification from other sources because an EPA certification is limited in that it is only accepted for opportunities funded by EPA financial assistance agreements. Conversely, certifications from other sources are beneficial for the business entity because they have broader applications. In implementing the DBE program over the past seven years, the EPA has received applications from various entities requesting EPA certification of their MBE/WBE status. For an EPA certification, the current rule requires that entities submit a paper application with evidence demonstrating that the entity meets the requirements of 40 CFR 33.202 and 33.203 (i.e., the entity is owned or controlled by one or more individuals claiming disadvantaged status under the EPA's 8 percent statute or owned and controlled by one or more individuals claiming disadvantaged status under the EPA's 10 percent statute), along with evidence regarding the disadvantaged status of such individuals and documentation of a denial of certification from another certifying entity. The application is then evaluated according to by the EPA within 30 days for approval. A review of this process, including the applications that the EPA has approved or denied for certification, determined that the overall demand for EPA certification has been nominal. In addition, the majority of firms seeking an EPA certification under 40 CFR 33.205 were already certified under other programs, and further EPA certification was unnecessary. Further, the current process, including the period for EPA review, is resource intensive and extends the time in which a facility receives its certification. For these reasons, the EPA removed the existing EPA certification requirements in 40 CFR 33.205 and will no longer processes paper applications.

    In lieu of the current application and evaluation requirements, revised 40 CFR 33.204 and 33.205 to accept and implement a self-certification process for firms who are not otherwise certified by another entity. The requirements will allow qualified firms to self-certify under the EPA's DBE program as an MBE or WBE, using the EPA's Small Business Vendor Profile System (SBVPS). Under this approach, firms seeking an EPA certification will register in the online SBVPS. Registration in the SBVPS will require the firm to provide their firm name and contact information, federal tax ID, DUNS no., type of business, date of start, annual sales, company size and classification, ethnicity, any other prior certifications. Firms will then self-attest to meeting the eligibility requirements set forth in 40 CFR 33.202 and 33.203. The self-certification provided through the SBVPS will be legally-binding. This approach, which is consistent with the certification requirements of other federal agencies including the SBA, does not require submittal of additional information, or require EPA review of an application. However, the EPA could request entities to provide evidence that they meet the eligibility requirements at any time. These self-certification requirements will reduce burden on firms by removing the current paper application process and decreasing the time spent by entities acquiring certification. These changes will also streamline agency activities related to maintaining forms, conducting reviews, and responding to applicants, resulting in an overall burden reduction.

    The approach will no longer require businesses to first seek certification from other entities before requesting EPA DBE certification. All businesses who meet the EPA DBE program certification requirements will be able to participate in self-certifying. The EPA will still accept certifications from other sources, including a federal agency, state, locality, Indian Tribe, or independent private organization, provided their standards for certification meet or exceed the EPA's. The EPA DBE self-certification will also remain only applicable to opportunities funded by EPA financial assistance agreements; 40 CFR 33.405 will clarify that the EPA's DBE certification will be not recognized by other federal, state or local organizations. Therefore, the EPA will continue to encourage businesses to obtain certifications from these sources. The self-certification approach will also provide for proof of certification for such facilities under EPA's DBE program. We revised 40 CFR 33.206 to provide for firms who self-certify through the SBVPS to be listed on the EPA's SBVPS through the OBSP Web site. The list will be publically available and provide assurance to recipients of EPA funding that the entities listed are certified and eligible for participation.

    Similar to the existing EPA certification, EPA self-certifications under this new approach will be valid for a period of three years. We revised 40 CFR 33.207 to specify that this period will begin from the date an entity is self-certified in the EPA's SBVPS. The SBVPS database will automatically purge data every three years, therefore firms will be required to re-register every three years to maintain their MBE or WBE status. Because facilities will be responsible for their registration and are self-certifying, we removed the requirements of 40 CFR 33.207, 33.209, and 33.211, which apply to re-application, re-evaluation, and appeal of EPA determinations for certified entities. We also revised 40 CFR 33.210 to clarify that facilities are responsible for keeping the EPA informed of any changes which may affect the entity's certification, including requiring the entity to remove its self-certification from the SBVPS database within 30 days of any changes to its eligibility status. This timeline is consistent with current requirements. The EPA also made several minor revisions to subpart B of Part 33 that will clarify existing requirements or provide for additional flexibility for affected entities. As discussed in section IV.1 of this preamble, we consolidated the definitions for “ownership or control,” “socially disadvantaged individual”, and “economically disadvantaged individual” in 40 CFR 33.202 and 33.203 under subpart A of part 33. We removed the definitions for “HBCU” and “Women” in paragraphs (d) and (e) of 40 CFR 33.203; the definition of “HBCU” is already included in 40 CFR 33.103, and a specific definition for “Women” is no longer necessary as women are included within the definitions for “socially disadvantaged individual” and “economically disadvantaged individual.”

    We made several clarifications to 40 CFR 33.204, including clarifying the content by revising the title to read “What certifications are acceptable for establishing MBE or WBE status under the EPA DBE Program?” We also clarified the rule references for those outside certifications currently accepted by the EPA (e.g., the SBA's 8(a) Business Development Program or its Small Disadvantaged Business (SDB) Program), and adding a reference to the Economically Disadvantaged Woman Owned Small Business (EDWOSB) Program (13 CFR part 127, subpart B). The EDWOSB was established on Oct. 7, 2010 (75 FR 62282) and provides certification requirements that meet or exceed the EPA's standards; the change will benefit entities by providing an additional certification option. Finally, we are clarifying that the certifications under the United States Department of Transportation (DOT) Participation by Disadvantaged Business Enterprises in DOT Programs are acceptable only with U.S. citizenship. The change clarifies that the existing U.S. citizenship requirement under Part 33 applies to these certifications.

    C. Subpart C—Good Faith Efforts

    The EPA made several changes to the Good Faith Efforts requirements of subpart C of 40 CFR part 33 to clarify the requirements. The revisions will not impose any new requirements or burdens, but primarily reorganizes the subpart in a more logical order to make the goals and obligations more apparent. We made one change to reduce burden.

    We made several changes to 40 CFR 33.301. First, we replaced the introduction to 40 CFR 33.301 (“What does this subpart require?”) with a statement of purpose to clarify that good faith efforts are methods used by EPA recipients to ensure that DBEs have the opportunity to compete for procurements funded by EPA financial assistance dollars. A new paragraph (h) will consolidate in one place and clarify the actions that constitute good faith efforts. Paragraph (h) is a result of reorganization and will not change any existing requirements. For example, we codified that recipients must use the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations, when feasible, when conducting the good faith efforts. This requirement is based on the existing good faith efforts, as outlined in the July 24, 2003 proposed DBE rule (68 FR 43824). We made one minor harmonizing change to 40 CFR 33.408 for consistency.

    The rule will also add several new paragraphs to 40 CFR 33.301 to clarify the administrative requirements for meeting the good faith efforts. First, we are adding new text in paragraphs (b) and (c) to clarify that no recipients are exempted from the good faith efforts requirements, including recipients that are exempt from the fair share objectives of 40 CFR part 33, subpart D. We also added a new paragraph (e) to clarify that recipients are required to ensure that all sub-recipients/prime contractors meet these requirements. These stipulations are inferred in the current provisions but were added to 40 CFR 33.301 for clarity. The changes to 40 CFR 33.301 will also clarify that subpart C does not negate the post federal award requirements of part 200.

    We also clarified in 40 CFR 33.301(d) that recipients must retain records of the methods used to adhere to good faith efforts. This provision already is required by the existing recordkeeping requirements of 40 CFR 33.501(a), but was added to 40 CFR 33.301(d) for clarity and better organizational placement. In a related change, we added a new paragraph (i) to clarify what constitutes non-compliance with subpart C. Paragraph (i) specifies that recipients that fail to meet all the fair share goals will not be penalized if they document the circumstances that prohibited full execution of each requirement, but that failure to retain proper documentation may constitute noncompliance.

    Next, for 40 CFR 33.302 (“Are there any additional contract administration requirements?”), we reduced a reporting requirement by eliminating Form 6100-2. Under the current rule, prime contractors are required to provide Form 6100-2 to DBE subcontractors. Form 6100-2 is an optional form that gives a DBE subcontractor the opportunity to inform the EPA about the work received and/or report any concerns regarding the EPA-funded project (e.g., termination by prime contractor, late payments, et al.). We are eliminating this form because the EPA has no legal authority or other leverage to intervene on behalf of the DBE to resolve any such problems. Eliminating this form will not hinder effective implementation of the program, but will reduce burden on recipients, prime contractors, DBEs, and the EPA. We also added a stipulation to 40 CFR 33.302 that failure to include EPA Forms 6100-3 and 6100-4 may constitute non-responsiveness and that the recipient may consider this non-responsiveness in evaluating a prime contractor's proposal. Forms 6100-3 and 6100-4 document the intended degree of DBE utilization under any prime contract issued by the recipient. This change is intended to provide clarification of compliance under subpart C and does not change any existing requirements. To ensure that a recipient is aware of all required contracting provisions, text was added to point out that all procurement contracts awarded by a recipient must contain the provisions specified in 2 CFR part 200, appendix II, as applicable.

    We made one editorial correction to 40 CFR 33.303 (“Are there special rules for loans under EPA financial assistance agreements?”) by changing the clause beginning with “such as . . .” to “including but not limited to . . .” so that the clause clarifies but does not limit applicability of the section.

    Finally, we clarified 40 CFR 33.304 to more accurately reflect the contents of the provisions and to clarify that a Native American recipient includes a consortium. The title will be “What special rules apply to a Native American (either as an individual, organization, Tribe or Tribal Government or consortium) Recipient or Prime Contractor when following the six good faith efforts?” We also made a harmonizing change to 40 CFR 33.304(a).

    D. Subpart D—Fair Share Objectives

    The EPA made revisions to subpart D of part 33 to revise the requirements for recipients of EPA financial assistance agreements to negotiate fair share objectives for MBE and WBE participation. The changes will generally reduce burden for recipients by reducing the number of recipients required to negotiate fair share objectives or revising the information that must be submitted by recipients. We also provided additional clarifications and harmonizing changes that will not impose any new requirements or burdens that do not already exist.

    First, the EPA revised 40 CFR 33.401 and 33.402 to clarify that in addition to negotiating its own fair share objectives, a recipient may use the approved fair share objective of another recipient with the same or similar relevant geographic buying market, purchasing the same or similar items. The EPA made one related harmonizing change to 40 CFR 33.405(a). These amendments harmonizes the requirements for recipients of EPA financial assistance agreements and financial agreements to capitalize revolving loan funds with the existing requirements of 40 CFR 33.405(b)(3), which allow recipients to use the fair share objectives of another recipient when determining a base figure for the relative availability of MBEs and WBEs. The EPA also revised 40 CFR 33.402 to clarify that for loan procurements that will occur over more than one year, the recipient should apply the fair share objectives in place to the year in which the procurement action occurs. Previously, the recipient could choose to apply the fair share objective in place either for the year in which the identified loan was awarded or for the year in which the procurement action occurred. These two options resulted in frequent questions from recipients; the change implements the former option and provides a consistent approach for all recipients.

    We made one minor revision to 40 CFR 33.403 (“What is a fair share objective?”) to remove the categories of construction, equipment, services and supplies, consistent with the changes to the definition of “procurement” discussed in section IV.1 of this preamble.

    Next, we revised the timeline for submittal of proposed fair share objectives and the EPA's subsequent review schedule. Specifically, we made revisions to 40 CFR 33.404 to shorten the time for recipients to submit their proposed MBE and WBE fair share objectives from 120 days to 90 days after acceptance of a financial assistance award. Because MBE and WBE fair share objectives must be agreed upon by the recipient and EPA before funds may be expended for procurement, the EPA has determined that recipients must submit their fair share objectives sooner in order to ensure that projects are commenced in a timely manner. These revisions will affect only those recipients that exceed the exemption threshold in 40 CFR 33.411. We also revised the timeframe for the EPA to respond in writing to the recipient's submission from 30 days to 45. We included these extra 15 days because the agency typically reviews a high number of applicants at one time. This time frame still allows for projects to commence earlier, as the rule provides that if EPA does not provide a response within 45 days then the fair share objectives submitted by the recipient are automatically agreed upon.

    We made two substantive revisions to 40 CFR 33.405, which provides for how recipients must determine MBE and WBE fair share objectives. First, we made revisions to 40 CFR 33.405(a) to require recipients to propose two separate MBE and WBE fair share objectives. Under the current rule, recipients are required to determine separate MBE and WBE fair share objectives for each of the four procurement categories, with the option to combine the four categories into one weighted objective. The revision is a harmonizing change with the changes to the definition of “procurement” discussed in section IV.1 of this preamble, which removes the four procurement categories from part 33. The revisions will significantly reduce the burden required of recipients by reducing the number of fair share objectives that must be determined. We made related minor harmonizing changes to 40 CFR 33.405(b)(1) and (2). Additionally, we made revisions to 40 CFR 33.405(c) to clearly state the applicable noncompliance remedies available to the EPA for recipients that fail to determine and implement fair share objectives. The rule references the applicable remedies under OMB regulations for federal awards in 2 CFR 200.338, including the specific applicable reference of 2 CFR 200.338, and the list of examples provided in 2 CFR 200.338. The EPA made the same changes to 40 CFR 33.410 to clarify the remedial actions that may be taken when a recipient fails to meet the requirements of subpart D.

    The EPA made amendments to 40 CFR 33.407 to revise the length of the period that a recipient's negotiated fair share objectives are effective from 3 fiscal years to 5 fiscal years. The increase reflects the typical award period for grants, which are 3 to 5 years in length. By increasing the period for which fair share objectives are effective to five years, the change eliminates the possibility of a grant recipient having to renegotiate its fair share objectives midway through a project. This revision reduces the burden on recipients by reducing the frequency and time needed to revise their objectives.

    We made a significant change to 40 CFR 33.411 to revise the exemption threshold for recipients required to meet the fair share objectives of subpart D. Currently, recipients of any single EPA financial assistance agreement in the amount of $250,000 or less or recipients of more than one EPA financial assistance agreement with a combined total of $250,000 or less in any one fiscal year is not required to apply the fair share objective requirements. In its implementation of the DBE program, the EPA has received feedback from stakeholders receiving smaller financial assistance rewards regarding the burden associated with collecting data for the determination of fair share objectives. Typically, the recipients of funding awards totaling in an amount lesser than $1 million are smaller entities who have very limited resources and personnel available to collect directory and census bureau data, perform disparity studies, develop alternative methods, or collect evidence from related fields or recipients to calculate the fair share goals. Given these limitations, such recipients have expressed difficulty in meeting the fair share objectives in a timely manner to guarantee funding of the assistance agreement. In such cases, these recipients have been unable to take advantage of the awarded funds and experienced delays or failures in completing EPA projects. In order to reduce the burden for these recipients and ensure that these smaller entities are able to expend funds under their awarded financial assistance agreement, we revised the exemption threshold from $250,000 to $1 million. The EPA identified a new threshold of $1 million based on a review of funding awarded to all entities during implementation of the program. Through this review, the EPA determined that the majority of funding award by the EPA (over 90 percent) is allotted to larger entities who received financial assistance agreements of greater than $1 million or a combination of financial assistance agreements whose total exceeds $1 million. Therefore, the EPA determined that a $1 million threshold will provide relief for smaller entities while ensuring that those recipients that receive the majority of funding from financial assistance agreements awarded by the EPA will continue to develop fair share objectives. These larger entities typically have the resources and personnel to conduct the data gathering steps required for development of the fair share goals. As such, the new threshold will ensure that for the majority of financial assistance agreements awarded by the EPA, recipients will continue to set goals for MBE and WBE participation in procurement.

    The EPA made additional minor revisions to 40 CFR 33.411. We revised 40 CFR 33.411(b) to clarify that the recipients of loans other than loans from the Clean Water State Revolving Fund (CWSRF) Program, Drinking Water State Revolving Fund (DWSRF) Program, and Brownfields Cleanup Revolving Loan Fund (BCRLF) Program who are below the exemption threshold of $1 million are not required to meet the fair share objective requirements of subpart D. We also revised 40 CFR 33.411(c) to clarify the reference for Performance Partnership Grants (PPGs) and to consolidate the requirements of 40 CFR 33.412. We removed 40 CFR 33.412 and revised 40 CFR 33.411 to include all exemptions to the fair share objectives in one place. Finally, we revised the term “grant” to “assistance agreement” in 40 CFR 33.411(c) to clarify that the exemptions apply to recipients of annual assistance agreements other than grants.

    E. Subpart E—Recordkeeping and Reporting

    The EPA made one significant change and several minor clarifications to the recordkeeping and reporting requirements of subpart E of part 33. Notably, we revised the reporting requirements of 40 CFR 33.502 to incorporate a Class Deviation previously issued by the EPA to grant exceptions from the reporting requirements of Part 33 (hereafter referred to as the “Deviation”). The Deviation changed the frequency of DBE reporting in 40 CFR 33.502 to annual for all recipients, and limited reporting to financial assistance agreements with funds budgeted for procurements above the simplified acquisition threshold. Specifically, the Deviation established that recipients, including recipients of financial assistance agreements that capitalize revolving loan programs, are required to report MBE/WBE participation annually on EPA Form 5700-52A when one or more of the following conditions are met: (1) There are funds budgeted for procurements, including funds budgeted for direct procurement by the recipient or procurement under sub-awards or loans in the “Other” category that exceed the simplified acquisition threshold amount of $150,000; (2) if at the time of award the budgeted funds for procurement exceed $150,000, but actual expenditures fall below, or; (3) if subsequent amendments and funding cause the total amount of procurement to surpass the $150,000 threshold. The Deviation also directed that where reporting is required, all procurement actions are reportable, not just the portion which exceeds $150,000. Reporting is not required if at the time of award, funds budgeted for procurements are less than or equal to $150,000 and are maintained below the threshold. The changes established in the Deviation have been effective since December 4, 2014, and are only being codified in this rule. We also added a provision to 40 CFR 33.502 to clarify that reports must be submitted by October 30th of each fiscal year, or 30 days after the end of the project period, whichever comes first. This revision is consistent with the reporting due date(s) established in the terms and conditions for assistance agreement recipients revised February 5, 2015. The change will incorporate terms that shortened the submission date from 90 days after the end of the project period to 30 days. The EPA previously incorporated these changes into existing agreements to ensure that final reports were received in a timely fashion to facilitate the close out process. The EPA cannot close out an assistance agreement until the final report is received. The changes codifies these terms and conditions for all assistance agreements for which reporting is required.

    We made only minor revisions to 40 CFR 33.501. We revised 40 CFR 33.501(a) to change the term “grant” to “assistance agreement” to clarify that recipients of annual assistance agreements other than grants must maintain a bidder's list. We also removed the requirement for recipients to include the mailing address of any prime- or subcontractors in the bidder's list; a mailing address is no longer necessary because the information in the bidder's list is only handled electronically. Finally, revised 40 CFR 33.501(c) to change the phrase “a recipient under the CWSRF, DWSRF, or BCRLF Program” to “a recipient under the CWSRF, DWSRF, BCRLF, or other identified loan program” to clarify that the requirements are not limited to recipients of the programs currently listed in the rule; these changes are consistent with the changes to 40 CFR 33.303 and 40 CFR 33.411(b) discussed in sections IV.A and IV.D of this preamble, respectively.

    Finally, we made one minor revision to 40 CFR 33.503 to clarify when reporting amounts of MBE and WBE participation as a percentage of total financial assistance agreement project procurement cost, recipients should only report funds used for procurements. This change is consistent with the existing requirements.

    VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act

    The information collection activities in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2536.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

    Information requested as a result of the revisions relate to (1) the Contract Administration Forms which are required if there are DBE subcontractors involved in a procurement under 40 CFR 33.302 (d) and (e) (formerly 40 CFR 33.302(f) and (g)), (2) the EPA DBE Self Certification process, and (3) fair share objectives required of certain recipients of EPA financial assistance. The information that will be collected allows EPA to evaluate and ensure the effectiveness of, and compliance with, the program's requirements. Information gathered that may reasonably be regarded as proprietary or other confidential business information will be safeguarded from disclosure to unauthorized persons, consistent with applicable federal, state and local law. EPA has regulations concerning confidential business information. See 40 CFR part 2, subpart B.

    Respondents/affected entities: Recipients of EPA financial assistance agreements and entities in the fields of construction, equipment, services and supplies who are intent on being prime contractors or subcontractors on EPA funded projects.

    Respondent's obligation to respond: Contract Administration: Pursuant to 40 CFR 33.302, a recipient must require its prime contractor to have its DBE subcontractors complete EPA Form 6100-3—DBE Program Subcontractor Performance Form as part of the prime contractor's bid or proposal package. Furthermore, a recipient must require its prime contractor to complete and submit EPA Form 6100-4—DBE Program Subcontractor Utilization Form as part of the prime contractor's bid or proposal package.

    Certification: Obtaining EPA DBE Certification is voluntary, however, in order to qualify and participate as an MBE or WBE prime or subcontractor for EPA recipients under EPA's DBE Program, an entity must be properly certified as detailed in 40 CFR 33.201.

    Fair Share Negotiations: It is required that all financial assistance recipients, unless exempt under 40 CFR 33.411, negotiate objectives/goals for MBE/WBE utilization pursuant to 40 CFR 33.401.

    Estimated number of respondents: 2,132.

    Frequency of response: Contract Administration: Once during bid or proposal. Certification: Once during initial DBE certification and every three years as needed for re-certification. Fair Share Negotiations: Once Every Five Years.

    Total estimated burden: 2,973 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $92,840 (per year), includes $0 annualized capital or operation & maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

    This is rule being published as a direct final action. A public comment period prior to this publication was not required.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action will improve the practical utility of the EPA's DBE program and minimize the burden to small entities. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The costs involved in this action are imposed only by conditions of federal assistance. UMRA excludes from the definition[s] of “federal intergovernmental mandate” duties that arise from conditions of federal assistance. Additionally, this action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Because this rule conditions the use of federal assistance, it will not impose substantial direct compliance costs on State and local governments.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The amendments generally reduce the burden and compliance costs associated with 40 CFR part 33.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The EPA made this determination because this rule does not affect the level of protection provided to human health or the environment.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 33

    Environmental protection, Grant programs.

    Dated: July 15, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, the Environmental Protection Agency is amending title 40, chapter I, of the Code of Federal Regulations as follows:

    PART 33—PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN UNITED STATES ENVIRONMENTAL PROTECTION AGENCY PROGRAMS 1. The authority citation for part 33 continues to read as follows: Authority:

    15 U.S.C. 637 note; 42 U.S.C. 4370d, 7601 note, 9605(f); E.O. 11625, 36 FR 19967, 3 CFR, 1971 Comp., p. 213; E.O. 12138, 49 FR 29637, 3 CFR, 1979 Comp., p. 393; E.O. 12432, 48 FR 32551, 3 CFR, 1983 Comp., p. 198, 2 CFR part 200.

    Subpart A—General Provision 2. Section 33.101 is amended by revising paragraph (a) to read as follows:
    § 33.101 What are the objectives of this part?

    (a) To foster nondiscrimination in the award and administration of procurements under EPA financial assistance agreements. To that end, implementation of this rule with respect to grantees, sub-grantees, loan recipients, prime contractors, or subcontractors in particular States or locales—notably those where there is no apparent history of relevant discrimination—must comply with equal protection standards at that level, apart from the EPA disadvantaged business enterprise (DBE) Rule's constitutional compliance as a national matter;

    3. Section 33.102 is revised to read as follows:
    § 33.102 To whom does this part apply?

    (a) If you are a recipient or prime contractor of any of the following types of funds, this part applies to you:

    (1) An EPA financial assistance agreement.

    (2) Grants or cooperative agreements used to capitalize revolving loan funds, including, but not limited to, the Clean Water State Revolving Loan Fund (CWSRF) Program under Title VI of the Clean Water Act, as amended, 33 U.S.C. 1381 et seq., the Drinking Water State Revolving Fund (DWSRF) Program under section 1452 of the Safe Drinking Water Act, 42 U.S.C. 300j-12, and the Brownfields Cleanup Revolving Loan Fund (BCRLF) Program under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9604.

    (3) Special Appropriation Act Projects (SAAP) funding.

    (4) A subaward from an EPA recipient to carry out the project or program under the Federal award.

    (b) If you are letting a contract, and that contract is to be performed entirely outside the United States or its territories and insular possessions, this part does not apply to the contract.

    (c) If you are letting a contract that is not being funded under an EPA financial assistance agreement or not being funded as part of the required match for an EPA financial assistance agreement, this part does not apply to the contract.

    4. Section 33.103 is amended by: a. Revising the introductory text. b. Adding definitions for “Contract,” “Contractor,” “Control,” “Economically disadvantaged individual,” “Expenditures,” “Federal award,” “Goods and services,” “Ownership,” “Procurement,” “Relevant geographic market,” “Socially disadvantaged individual,” “Subaward,” “Subcontract,” “Subcontractor,” “Subrecipient,” and “Territories and Insular Possessions” in alphabetical order. c. Revising the definitions of “Availability analysis,” “Disadvantaged business enterprise (DBE),” “Disparity study,” “Identified loan,” “Recipient,” “United States,” and “Women's business enterprise.” d. Removing the definitions for “Construction,” “Equipment,” “Insular area,” “Services,” and “Supplies.”

    The revisions and additions read as follows:

    § 33.103 What do the terms in this part mean?

    Terms not defined below shall have the meaning given to them in 2 CFR 200.1 as applicable. As used in this part:

    Availability analysis means documentation of the availability of minority business enterprises (MBEs) and women's business enterprises (WBEs), that provide particular goods and services in a relevant geographic market, in relation to the total number of firms available in that area that provide the same goods or services.

    Contract means a legal instrument by which a non-Federal entity purchases goods or services needed to carry out the project or program under a Federal award. The term as used in this part does not include a legal instrument, even if the non-Federal entity considers it a contract, when the substance of the transaction meets the definition of a Federal award or subaward (see Subaward as defined this section).

    Contractor means an entity that receives a contract as defined in this section.

    Control means both the strategic policy setting exercised by boards of directors and the day-to-day management and administration of business operations as described in 13 CFR 124.106.

    Disadvantaged business enterprise (DBE) means an entity that is at least 51% owned or controlled by a socially and economically disadvantaged U.S citizen as described by Public Law 102-389 (42 U.S.C. 4370d) or an entity owned and controlled by a socially and economically disadvantaged individual as described by Title X of the Clean Air Act Amendments of 1990 (42 U.S.C. 7601 note); a Small Business Enterprise (SBE); a Small Business in a Rural Area (SBRA); or a Labor Surplus Area Firm (LSAF), a Historically Underutilized Business (HUB) Zone Small Business Concern, or a concern under a successor program.

    Disparity study means an analysis of whether a disparity, or differences, exists between the number of MBEs and WBEs within the same industries in a relevant geographic market that are available to participate in EPA financial assistance agreements, and those that actually participate.

    Economically disadvantaged individual means a socially disadvantaged individual whose ability to compete in the free enterprise system is impaired due to diminished capital and credit opportunities, as compared to others in the same business area who are not socially disadvantaged and as further defined by section 8(a)(6) of the Small Business Act (15 U.S.C. 637(a)(6)) and its implementing regulations (13 CFR 124.104). (See also 13 CFR 124.109 for special rules applicable to Indian tribes and Alaska Native Corporations; 13 CFR 124.110 for special rules applicable to Native Hawaiian Organizations). Under EPA's DBE Program, an individual claiming disadvantaged status must have an initial and continued personal net worth of less than or equal to the prevailing Department of Transportation (DOT) DBE Program economic disadvantaged threshold as described in 49 CFR part 26, subpart D.

    Expenditures means charges made by a non-Federal entity to a project or program for which a Federal award was received. The charges may be reported on a cash or accrual basis, as long as the methodology is disclosed and is consistently applied.

    (1) For reports prepared on a cash basis, expenditures are the sum of:

    (i) Cash disbursements for direct charges for property and services;

    (ii) The amount of indirect expense charged;

    (iii) The value of third-party in-kind contributions applied; and

    (iv) The amount of cash advance payments and payments made to subrecipients.

    (2) For reports prepared on an accrual basis, expenditures are the sum of:

    (i) Cash disbursements for direct charges for property and services;

    (ii) The amount of indirect expense incurred;

    (iii) The value of third-party in-kind contributions applied; and

    (iv) The net increase or decrease in the amounts owed by the non-Federal entity for goods and other property received; services performed by employees, contractors, subrecipients, and other payees; and programs for which no current services or performance are required, such as annuities, insurance claims, or other benefit payments.

    Federal award has either of the following meanings, as applicable:

    (1) The Federal financial assistance that a non-Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity, as described in 2 CFR 200.101 Applicability; or the cost-reimbursement contract under the Federal Acquisition Regulations that a non-Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity, as described in 2 CFR 200.101 (Applicability).

    (2) The instrument setting forth the terms and conditions of a grant agreement, cooperative agreement, other agreement for assistance covered in paragraph (b) of 2 CFR 200.40 (Federal financial assistance), or the cost-reimbursement contract awarded under the Federal Acquisition Regulations.

    (3) Federal award does not include other contracts that a Federal agency uses to buy goods or services from a contractor or a contract to operate Federal Government owned, contractor operated facilities (GOCOs).

    Goods and services means tangible consumable items and tasks performed by individuals.

    Identified loan means a loan project or set-aside activity receiving assistance from a recipient of an EPA financial assistance agreement to capitalize a revolving loan fund, that:

    (1) In the case of the CWSRF Program, is a project funded from amounts equal to the capitalization grant;

    (2) In the case of the DWSRF Program, is a loan project or set-aside activity funded from amounts up to the amount of the capitalization grant;

    (3) In the case of the BCRLF Program, is a project that has been funded with EPA financial assistance; or

    (4) In the case of other loan programs, is a project that has been funded with EPA financial assistance.

    Ownership means at least 51 percent of an enterprise is unconditionally and directly owned by one or more socially and economically disadvantaged individuals who are citizens of the United States, except for concerns owned by Indian tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations (CDCs) as described in 13 CFR 124.105. See 13 CFR 124.3 for definition of unconditional ownership; and 13 CFR 124.109, 124.110, and 124.111, respectively, for special ownership requirements for concerns owned by Indian tribes, Alaska Native Corporations, Native Hawaiian Organizations, and Community Development Corporations.

    Procurement means the acquisition of goods and services under a financial assistance agreement as defined by applicable regulations for the particular type of financial assistance received.

    Recipient means a non-Federal entity that receives an EPA financial assistance agreement or is a sub-recipient of such agreement, including and not limited to loan recipients under the Clean Water State Revolving Fund Program, Drinking Water State Revolving Fund Program, and the Brownfields Cleanup Revolving Loan Fund Program.

    Relevant geographic market means is the area of solicitation for a procurement as determined by the recipient which may include where the recipient has historically done business and/or plans to do business as it relates to new markets.

    Socially disadvantaged individual means a person who has been subjected to racial or ethnic prejudice or cultural bias because of his or her identity as a member of a group without regard to his or her individual qualities and as further defined by the implementing regulations of section 8(a)(5) of the Small Business Act (15 U.S.C. 637(a)(5); 13 CFR 124.103; see also 13 CFR 124.109 for special rules applicable to Indian tribes and Alaska Native Corporations; 13 CFR 124.110 for special rules applicable to Native Hawaiian Organizations).

    Subaward means an award provided by an EPA financial assistance agreement recipient to a subrecipient for the subrecipient to carry out part of an EPA award received by the recipient. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.

    Subcontract means an agreement between an EPA financial assistance agreement's prime contractor and a subcontractor to provide goods and services.

    Subcontractor means an entity engaged by an EPA financial assistance agreement's prime contractor to provide good and services.

    Subrecipient means a non-Federal entity that receives a subaward from an EPA recipient to carry out part of an EPA program; but does not include an individual that is a beneficiary of such program.

    Territories and Insular Possessions means any type of political division that is directly overseen by the United States as described in U.S. Code: Title 48.

    United States means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico and any other territories and possessions of the United States.

    Women's business enterprise (WBE) means a business concern which is at least 51% owned or controlled by women for purposes of EPA's 8% statute or a business concern which is at least 51% owned and controlled by women for purposes for EPA's 10% statute. Determination of ownership by a married woman in a community property jurisdiction will not be affected by her husband's 50 percent interest in her share. Similarly, a business concern that is more than 50 percent owned by a married man will not become a qualified WBE by virtue of his wife's 50 percent interest in his share.

    5. Section 33.104 is amended by: a. Revising paragraphs (a), (c) introductory text, and (c)(2) and (3). b. Adding paragraph (c)(4). c. Removing paragraph (d).

    The revisions and addition read as follows:

    § 33.104 May recipients apply for a waiver from the requirements of this part?

    (a) A recipient may apply for a waiver from any of the requirements of this part that are not specifically based on a statute or Executive Order, by submitting a written request to the Director of the Office of Small Business Programs (OSBP).

    (c) The OSBP Director has the authority to approve a recipient's request. If the OSBP Director grants a recipient's request, the recipient may administer its program as provided in the request, subject to the following conditions:

    (2) There is a five year limitation on the duration of the recipient's modified program. Should it be necessary to extend a waiver beyond the five year period, recipients are required to submit a new waiver request at least 60 days prior to the modified program's expiration date. Should the recipient fail to submit a new waiver request prior to the modified program's expiration date, the recipient will be required to comply with the provisions of this part and all terms agreed upon as a condition of the waiver will expire; and

    (3) Any other conditions the OSBP Director makes on the grant of the waiver.

    (4) The OSBP Director may end a program waiver at any time upon notice to the recipient and require a recipient to comply with the provisions of this part.

    6. Section 33.105 is revised to read as follows:
    § 33.105 What are the compliance and enforcement provisions of this part?

    If a recipient fails to comply with any of the requirements of this part, EPA may take remedial action under 2 CFR 200.338, as appropriate, or any other action authorized by law, including, but not limited to, enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). Examples of the remedial actions include, but are not limited to:

    (a) Temporarily withholding cash payments pending correction of the deficiency by the recipient or more severe enforcement action by EPA;

    (b) Disallowing (that is, denying both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance;

    (c) Wholly or partly suspending or terminating the EPA award;

    (d) Initiating suspension or debarment proceedings as authorized under 2 CFR part 180 and EPA regulations (or in the case of a pass-through entity, recommend such a proceeding be initiated by EPA);

    (e) Withholding further awards for the project or program; and

    (f) Taking other remedies that may be legally available.

    7. Section 33.107 is amended by: a. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d), respectively. b. Adding new paragraph (b).

    The addition reads as follows:

    § 33.107 What are the rules governing availability of records, cooperation, and intimidation and retaliation?

    (b) Retention requirements and access for records. Recipients are required to adhere to the requirements set forth in 2 CFR 200.333 through 200.337 for record retention and access to records requirements.

    8. Appendix A is added to subpart A of part 33 to read as follows: Appendix A to Subpart A of Part 33—Term and Condition

    Each procurement contract signed by an EPA financial assistance agreement recipient or subrecipient, including those for an identified loan under an EPA financial assistance agreement capitalizing a revolving loan fund, must include provisions under 2 CFR part 200, appendix II, as applicable, as well as the following term and condition:

    The contractor shall not discriminate on the basis of race, color, national origin or sex in the performance of this contract. The contractor shall carry out applicable requirements of 40 CFR part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or other legally available remedies.

    Subpart B—Certification
    9. Section 33.202 is revised to read as follows:
    § 33.202 How does an entity qualify as an MBE or WBE under EPA's 8% statute?

    To qualify as an MBE or WBE under EPA's 8% statute, an entity must establish that it is owned or controlled by socially and economically disadvantaged individuals who are of good character and citizens of the United States. An entity need not demonstrate potential for success.

    10. Section 33.203 is revised to read as follows:
    § 33.203 How does an entity qualify as an MBE or WBE under EPA's 10% statute?

    (a) Qualifications. To qualify as an MBE or WBE under EPA's 10% statute, an entity must establish that it is owned and controlled by socially and economically disadvantaged individuals who are of good character and citizens of the United States.

    (b) Presumptions. In accordance with Title X of the Clean Air Act Amendments of 1990, 42 U.S.C. 7601 note, Black Americans, Hispanic Americans, Native Americans, Asian Americans, Women and Disabled Americans are presumed to be socially and economically disadvantaged individuals. In addition, the following institutions are presumed to be entities owned and controlled by socially and economically disadvantaged individuals: HBCUs, Minority Institutions (including Tribal Colleges and Universities and Hispanic-Serving Institutions) and private and voluntary organizations controlled by individuals who are socially and economically disadvantaged.

    (c) Individuals not members of designated groups. Nothing in this section shall prohibit any member of a racial or ethnic group that is not designated as socially and economically disadvantaged under paragraph (b) of this section from establishing that they have been impeded in developing a business concern as a result of racial or ethnic discrimination.

    (d) Rebuttal of presumptions. The presumptions established by paragraph (b) of this section may be rebutted with respect to a particular entity if it is reasonably established that the individual at issue is not experiencing impediments as a result of the individual's identification as a member of a specified group.

    (e) Joint ventures. A joint venture may be considered owned and controlled by socially and economically disadvantaged individuals, notwithstanding the size of such joint venture, if a party to the joint venture is an entity that is owned and controlled by a socially and economically disadvantaged individual, and that entity owns 51% of the joint venture. As a party to a joint venture, a person who is not an economically disadvantaged individual, or an entity that is not owned and controlled by a socially and economically disadvantaged individual, may not be a party to more than two awarded contracts in a fiscal year solely by joint venture with a socially and economically disadvantaged individual or entity.

    11. Section 33.204 is revised to read as follows:
    § 33.204 What certifications are acceptable for establishing MBE or WBE status under the EPA DBE Program?

    (a) EPA accepts the following certifications as being acceptable for establishing MBE or WBE status under the EPA DBE Program:

    (1) The United States Small Business Administration (SBA), under its 8(a) Business Development Program (13 CFR part 124, subpart A), Small Disadvantaged Business (SDB) Program (13 CFR part 124, subpart B), or Economically Disadvantaged Woman Owned Small Business (EDWOSB) Program (13 CFR part 127, subpart B);

    (2) The United States Department of Transportation (DOT), under its regulations for Participation by Disadvantaged Business Enterprises in DOT Programs (49 CFR parts 23 and 26) with U.S. citizenship;

    (3) Any Indian Tribal Government, State Government, local Government or independent private organization certification that meets the criteria set forth in § 33.202 or § 33.203; or

    (4) The EPA DBE self-certification as described in § 33.205.

    (b) Such certifications shall be considered acceptable for establishing MBE or WBE status, as appropriate, under EPA's DBE Program as long as the certification meets EPA's U.S. citizenship requirement under § 33.202 or § 33.203.

    12. Section 33.205 is revised to read as follows:
    § 33.205 How does an entity become self-certified by EPA?

    (a) An entity may self-certify as an MBE or WBE under the EPA DBE Program. To self-certify, the entity must register in the EPA Small Business Vendor Profile System (SBVPS) and attest to meeting the eligibility requirements set forth in § 33.202 or § 33.203.

    (b) EPA DBE Program's self-certifications are only applicable to opportunities funded by EPA financial assistance agreements and are not recognized by other federal, state or local organizations.

    13. Section 33.206 is revised to read as follows:
    § 33.206 Is there a list of EPA certified MBEs and WBEs?

    A list of firms that have chosen to self-certify as an MBE or WBE under the EPA DBE Program can be accessed through the EPA SBVPS on the OSBP Web site. EPA will not maintain a list of firms certified through other entities.

    § 33.207 [Removed and Reserved]
    14. Section 33.207 is removed and reserved.
    15. Section 33.208 is revised to read as follows:
    § 33.208 How long does an MBE or WBE self-certification from EPA last?

    Self-certifications are valid for a period of three years from the date an entity is self-certified in the EPA SBVPS. Entities are required to re-enter their registration information in the EPA SBVPS every three years in order to maintain MBE or WBE status under the DBE program. Entries in the EPA SBVPS older than three years will be automatically removed from the system.

    § 33.209 [Removed and Reserved]
    16. Section 33.209 is removed and reserved.
    17. Section 33.210 is revised to read as follows:
    § 33.210 Does an entity self-certified as an MBE or WBE by EPA need to keep EPA informed of any changes that may affect the entity's certification?

    Should there be any changes to the entity's circumstances that affects its ability to meet disadvantaged status, ownership, and/or control requirements of this subpart, the entity must remove its self-certification entry in the EPA SBVPS within 30 days of the occurrence of the change. Failure to comply may result in the loss of MBE or WBE certification under EPA's DBE Program and EPA may take other remedies that may be legally available. Failure to comply may result in the loss of MBE or WBE certification under EPA's DBE Program, and EPA may take other remedies that may be legally available.

    § 33.211 [Removed and Reserved]
    18. Section 33.211 is removed and reserved.
    Subpart C—Good Faith Efforts 19. Section 33.301 is revised to read as follows:
    § 33.301 What does this subpart require?

    (a) The good faith efforts are methods used by all EPA recipients to ensure that DBEs have the opportunity to compete for procurements funded by EPA financial assistance dollars.

    (b) A recipient, including one exempted from applying the fair share objective requirements by § 33.411, is required to make good faith efforts whenever making procurements under an EPA financial assistance agreement.

    (c) Good faith efforts are required even if the fair share objectives have been achieved under subpart D.

    (d) Methods used to adhere to good faith requirements must be documented and retained in the recipient's records; this documentation should include, but is not limited to, email logs, phone logs, electronic searches and communication, handouts, flyers or similar records.

    (e) Recipients are required to ensure that the requirements of this subpart are passed down to all sub-recipients/prime contractors.

    (f) There are no exemptions to the requirements of this subpart.

    (g) This subpart does not negate the post federal award requirements set forth in 2 CFR part 200.

    (h) The following is a list of actions a recipient must perform to satisfy the good faith effort requirement:

    (1) Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities by placing DBEs on solicitation lists and soliciting them whenever they are potential sources.

    (2) Make information on forthcoming opportunities available to DBEs and arrange time frames for contracts and establish delivery schedules, where the requirements permit, in a way that encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date.

    (3) Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs; this includes, where appropriate, breaking out requirements into economically feasible units to facilitate DBE participation.

    (4) Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually.

    (5) Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations, when feasible, to conduct the efforts described in paragraphs (h)(1) through (4) of this section.

    (i) A recipient should make every attempt to conduct the efforts described in paragraphs (h)(1) through (5) of this section. In the event that one or more of the aforementioned efforts cannot be performed, the circumstances that have prohibited the full execution of each step should be documented and retained in the recipient's records. Recipients that fail to meet their fair share goals will not be penalized provided they attempt to follow the good faith efforts and adequately document the methods used to solicit DBEs. However, failure to retain proper documentation may constitute noncompliance and result in remedial action as described in § 33.105.

    20. Section 33.302 is amended by revising paragraphs (c) through (i) to read as follows:
    § 33.302 Are there any additional contract administration requirements?

    (c) If a DBE subcontractor fails to complete work under the subcontract for any reason, the recipient must require the prime contractor to employ the good faith efforts described in § 33.301(h) if soliciting a replacement subcontractor.

    (d) A recipient must require its prime contractor to have its DBE subcontractors complete EPA Form 6100-3—DBE Program Subcontractor Performance Form. A recipient must then require its prime contractor to include all completed forms as part of the prime contractor's bid or proposal package.

    (e) A recipient must require its prime contractor to complete and submit EPA Form 6100-4—DBE Program Subcontractor Utilization Form as part of the prime contractor's bid or proposal package.

    (f) Copies of EPA Form 6100-2—DBE Program Subcontractor Participation Form, EPA Form 6100-3—DBE Program Subcontractor Performance Form, and EPA Form 6100-4—DBE Program Subcontractor Utilization Form may be obtained online from EPA OSBP's Home Page.

    (g) Failure to include EPA Form 6100-3 and EPA Form 6100-4 in a bid or proposal package may constitute non-responsiveness. A recipient may consider this non-responsiveness in evaluating a prime contractor's proposal.

    (h) A recipient must ensure that each procurement contract it awards contains the term and condition specified in 2 CFR part 200, appendix II, concerning compliance with the requirements of this part. A recipient must also ensure that this term and condition is included in each procurement contract awarded by an entity receiving an identified loan under a financial assistance agreement to capitalize a revolving loan fund.

    (i) In addition to requirements stated above, all procurement contracts awarded by a recipient must contain provisions detailed in 2 CFR part 200, appendix II, as applicable.

    21. Section 33.303 is revised to read as follows:
    § 33.303 Are there special rules for loans under EPA financial assistance agreements?

    A recipient of an EPA financial assistance agreement to capitalize a revolving loan fund, including, but not limited to, a State under the CWSRF or DWSRF or an eligible entity under the Brownfields Cleanup Revolving Loan Fund program, must require that borrowers receiving identified loans comply with the good faith efforts described in § 33.301 and the contract administration requirements of § 33.302. This provision does not require that such private and nonprofit borrowers expend identified loan funds in compliance with any other procurement procedures contained in 2 CFR part 200, subpart D (Post Federal Award Requirements, Procurement Standards), or 40 CFR part 35, subpart O, as applicable.

    22. Section 33.304 is amended by revising the section heading and paragraphs (a) through (c) to read as follows:
    § 33.304 What special rules apply to a Native American (either as an individual, organization, Tribe or Tribal Government or consortium) recipient or prime contractor when following the good faith efforts?

    (a) A Native American (either as an individual, organization, corporation, Tribe or Tribal Government or consortium) recipient or prime contractor must follow the good faith efforts in § 33.301(h) only if doing so would not conflict with existing Tribal or Federal law, including but not limited to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e), which establishes, among other things, that any federal contract, subcontract, grant, or subgrant awarded to Indian organizations or for the benefit of Indians, shall require preference in the award of subcontracts and subgrants to Indian organizations and to Indian-owned economic enterprises.

    (b) Tribal organizations awarded an EPA financial assistance agreement have the ability to solicit and recruit Indian organizations and Indian-owned economic enterprises and give them preference in the award process prior to undertaking the good faith efforts. Tribal governments with promulgated tribal laws and regulations concerning the solicitation and recruitment of Native-owned and other minority business enterprises, including women-owned business enterprises, have the discretion to utilize these tribal laws and regulations in lieu of the good faith efforts. If the effort to recruit Indian organizations and Indian-owned economic enterprises is not successful, then the recipient must follow the good faith efforts. All tribal recipients still must retain records documenting compliance in accordance with § 33.501 and must report to EPA on their accomplishments in accordance with § 33.502.

    (c) Any recipient, whether or not Native American, of an EPA financial assistance agreement for the benefit of Native Americans, is required to solicit and recruit Indian organizations and Indian-owned economic enterprises and give them preference in the award process prior to undertaking the good faith efforts. If the efforts to solicit and recruit Indian organizations and Indian-owned economic enterprises is not successful, then the recipient must follow the good faith efforts.

    Subpart D—Fair Share Objectives 23. Section 33.401 is revised to read as follows:
    § 33.401 What does this subpart require?

    A recipient must either negotiate with the appropriate EPA award official or his/her designee fair share objectives for MBE and WBE participation in procurement under the financial assistance agreements, or use the approved fair share objective of another recipient with the same or similar relevant geographic buying market, purchasing the same or similar items.

    24. Section 33.402 is revised to read as follows:
    § 33.402 Are there special rules for loans under EPA financial assistance agreements?

    (a) A recipient of an EPA financial assistance agreement to capitalize revolving loan funds must either:

    (1) Apply its own fair share objectives negotiated with EPA under § 33.401 to identified loans using a substantially similar relevant geographic market;

    (2) Negotiate separate fair share objectives with entities receiving identified loans, as long as such separate objectives are based on demonstrable evidence of availability of MBEs and WBEs in accordance with this subpart; or

    (3) Use the approved fair share objective of another recipient with the same or similar relevant geographic buying market, with the same or similar items.

    (b) If procurements will occur over more than one year, the recipient should apply the fair share objectives to the year in which the procurement action occurs.

    25. Section 33.403 is revised to read as follows:
    § 33.403 What is a fair share objective?

    A fair share objective is an objective based on the capacity and availability of qualified, certified MBEs and WBEs in the relevant geographic market compared to the number of all qualified entities in the same market, to reflect the level of MBE and WBE participation expected absent the effects of discrimination. A fair share objective is not a quota.

    26. Section 33.404 is revised to read as follows:
    § 33.404 When must a recipient negotiate fair share objectives with EPA?

    A recipient must submit its proposed MBE and WBE fair share objectives and supporting documentation to EPA within 90 days after its acceptance of its financial assistance award. EPA must respond in writing to the recipient's submission within 45 days of receipt, either agreeing with the submission or providing initial comments for further negotiation. Failure to respond within this time frame may be considered as agreement by EPA with the fair share objectives submitted by the recipient. MBE and WBE fair share objectives must be agreed upon by the recipient and EPA before funds may be expended for procurement under the recipient's financial assistance agreement.

    27. Section 33.405 is amended by: a. Revising paragraphs (a), (b) introductory text, and (b)(1) and (2); b. Adding paragraph (c)(4).

    The revisions and addition read as follows:

    § 33.405 How does a recipient determine its fair share objectives?

    (a) Unless a recipient chooses to use the approved fair share objective of another recipient, it must determine its fair share objectives based on demonstrable evidence of the number of certified MBEs and WBEs that are ready, willing, and able to perform in the relevant geographic market. The market may be a geographic region of a State, an entire State, or a multi-State area. Fair share objectives must reflect the recipient's determination of the level of MBE and WBE participation it would expect absent the effects of discrimination. A recipient must propose separate objectives for MBEs and WBEs.

    (b) Step 1. A recipient must first determine a base figure for the relative availability of MBEs and WBEs. The following are examples of approaches that a recipient may take. Any percentage figure derived from one of these examples should be considered a basis from which a recipient begins when examining evidence available in its jurisdiction. These examples are provided as a starting point and are not intended as an exhaustive list.

    (1) MBE and WBE directories and Census Bureau data. Separately determine the number of certified MBEs and WBEs that are ready, willing, and able to perform in the relevant geographic market from an MBE/WBE directory such as those provided by the Department of Transportation. When using the Census Bureau's County Business Pattern (CBP) database, determine the number of all qualified businesses available in the market that perform work in the same business industries. Separately divide the number of MBEs and WBEs by the number of all businesses to derive a base figure for the relative availability of MBEs and WBEs in the market.

    (2) Data from a disparity study. Use a percentage figure derived from data in a valid, applicable disparity study conducted within the preceding ten years comparing the available MBEs and WBEs in the relevant geographic market with their actual usage by entities for procurements in the same business industries.

    (c) * * *

    (4) Unless exempt under § 33.411, a recipient that fails to establish and implement goals as provided in this section will be considered noncompliant and EPA may take remedial action under 2 CFR 200.338, as appropriate, or any other action authorized by law, including, but not limited to, enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

    28. Section 33.407 is revised to read as follows:
    § 33.407 How long do MBE and WBE fair share objectives remain in effect?

    Once MBE and WBE fair share objectives have been negotiated, they will remain in effect for five fiscal years unless there are significant changes to the data supporting the fair share objectives. The fact that a disparity study utilized in negotiating fair share objectives has become more than ten years old during the five-year period does not by itself constitute a significant change requiring renegotiation.

    29. Section 33.408 is amended by revising paragraph (a) to read as follows:
    § 33.408 May a recipient use race and/or gender conscious measures as part of this program?

    (a) Should the good faith efforts described in subpart C of this part or other race and/or gender neutral measures prove to be inadequate to achieve an established fair share objective, race and/or gender conscious action (e.g., apply the subcontracting suggestion in § 33.301(h)(3) to MBEs and WBEs) is available to a recipient and its prime contractor to more closely achieve the fair share objectives, subject to § 33.409. Under no circumstances are race and/or gender conscious actions required by EPA.

    30. Section 33.410 is revised to read as follows:
    § 33.410 Can a recipient be penalized for failing to meet its fair share objectives?

    A recipient cannot be penalized, or treated by EPA as being in noncompliance with this subpart, solely because its MBE or WBE participation does not meet its applicable fair share objective. However, EPA may take remedial action under 2 CFR 200.338, as appropriate, or any other action authorized by law, including, but not limited to, enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.) for failure to comply with the provisions of this subpart.

    31. Section 33.411 is amended by revising paragraphs (a) through (c) to read as follows:
    § 33.411 Who may be exempted from this subpart?

    (a) General. A recipient of an EPA financial assistance agreement in the amount of $1 million or less for any single assistance agreement, or of more than one financial assistance agreement with a combined total of $1 million or less in any one fiscal year, is not required to apply the fair share objective requirements of this subpart. This exemption is limited to the fair share objective requirements of this subpart.

    (b) Clean Water State Revolving Fund (CWSRF) Program, Drinking Water State Revolving Fund (DWSRF) Program, Brownfields Cleanup Revolving Loan Fund (BCRLF) Program or other identified loan recipients. A recipient under the CWSRF, DWSRF, BCRLF, or other identified loan program is not required to apply the fair share objective requirements of this subpart to an entity receiving one or more identified loans in an amount of $1 million or less in any one fiscal year. This exemption is limited to the fair share objective requirements of this subpart.

    (c) U.S. Territory and Insular Possession, and Tribal and Intertribal Consortia recipients of program assistance agreements that can be included in Performance Partnership Grants (PPGs) under 40 CFR part 35, subparts A and B, respectively. U.S Territory and Insular Possession, and Tribal and Intertribal Consortia recipients of PPG eligible grants are not required to apply the fair share objective requirements of this subpart to those grants. This exemption is limited to the fair share objective requirements of this subpart.

    § 33.412 [Removed and Reserved]
    32. Section 33.412 is removed and reserved.
    Subpart E—Recordkeeping and Reporting 33. Section 33.501 is amended by revising paragraphs (b) introductory text, (b)(2), and (c) to read as follows:
    § 33.501 What are the recordkeeping requirements of this part?

    (b) A recipient of a Continuing Environmental Program Grant or other annual assistance agreements must create and maintain a bidders list. In addition, a recipient of an EPA financial assistance agreement to capitalize a revolving loan fund also must require entities receiving identified loans to create and maintain a bidders list if the recipient of the loan is subject to, or chooses to follow, competitive bidding requirements (See e.g., § 33.303). The purpose of a bidders list is to provide the recipient and entities receiving identified loans who conduct competitive bidding with as accurate a database as possible about the universe of MBE/WBE and non-MBE/WBE prime and subcontractors. The list must include all firms that bid or quote on prime contracts, or bid or quote subcontracts on EPA assisted projects, including both MBE/WBEs and non-MBE/WBEs. The bidders list must only be kept until the assistance agreement project period has expired and the recipient is no longer receiving EPA funding under the assistance agreement. For entities receiving identified loans, the bidders list must only be kept until the project period for the identified loan has ended. The following information must be obtained from all prime and subcontractors:

    (2) Entity's telephone number and email address;

    (c) Exemptions. A recipient of an EPA financial assistance agreement in the amount of $250,000 or less for any single assistance agreement, or of more than one financial assistance agreement with a combined total of $250,000 or less in any one fiscal year, is exempt from the paragraph (b) of this section requirement to create and maintain a bidders list. Also, a recipient under the CWSRF, DWSRF, BCRLF, or other identified loan program, is not required to apply the paragraph (b) of this section bidders list requirement of this subpart to an entity receiving an identified loan in an amount of $250,000 or less, or to an entity receiving more than one identified loan with a combined total of $250,000 or less in any one fiscal year. This exemption is limited to the paragraph (b) of this section bidders list requirements of this subpart.

    34. Section 33.502 is revised to read as follows:
    § 33.502 What are the reporting requirements of this part?

    (a) Recipients are required to report MBE and WBE participation annually on EPA Form 5700-52A when one or more of the following conditions are met.

    (1) There are funds budgeted for procurements, including funds budgeted for direct procurement by the recipient or procurement under sub-awards or loans in the “Other” procurement category that exceed the simplified acquisition threshold amount of $150,000;

    (2) If at the time of award the budgeted funds for procurement exceed $150,000, but actual expenditures fall below; or

    (3) If subsequent amendments and funding cause the total amount of procurement to surpass the $150,000 threshold.

    (b) Those recipients exempted under § 33.411 from the requirement to apply the fair share objectives are required to report if one or more of the conditions stated above is met.

    (c) Recipients of financial assistance agreements that capitalize revolving loan programs must require entities receiving identified loans to submit their MBE and WBE participation reports on an annual basis, if one or more of the conditions stated above is met. Reports should be submitted to the financial assistance agreement recipient, rather than to EPA.

    (d) Where reporting is required, all procurement actions are reportable, not just that portion that exceeds $150,000.

    (e) Reporting is not required if at the time of award, funds budgeted for procurements are less than or equal to $150,000 and are maintained below the threshold.

    (f) Reports are due by October 30th of each fiscal year, or 30 days after the end of the project period, whichever comes first.

    35. Section 33.503 is amended by revising paragraph (a) to read as follows:
    § 33.503 How does a recipient calculate MBE and WBE participation for reporting purposes?

    (a) General. Only certified MBEs and WBEs are to be counted towards MBE/WBE participation. Amounts of MBE and WBE participation are calculated as a percentage of total financial assistance agreement project procurement costs, which include the match portion of the project costs, if any. Recipients should only report funds used for procurements. For recipients of financial assistance agreements that capitalize revolving loan programs, the total amount is the total procurement dollars in the amount of identified loans equal to the capitalization amount.

    Appendix A to Part 33 [Removed]

    36. Appendix A to part 33 is removed.
    [FR Doc. 2016-17510 Filed 7-27-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 360, 365, 366, 368, 385, 387, 390 and 392 [Docket No. FMCSA-1997-2349] RIN 2126-AB85; Formerly 2126-AA22 Unified Registration System; Correction AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Final rule; correction.

    SUMMARY:

    FMCSA is correcting the effective and compliance dates for its August 23, 2013, Unified Registration System (URS) final rule, as revised on October 21, 2015. The 2013 URS final rule was issued to improve the registration process for motor carriers, property brokers, freight forwarders, Intermodal Equipment Providers (IEPs), hazardous materials safety permit (HMSP) applicants, and cargo tank facilities required to register with FMCSA, and streamline the existing Federal registration processes to ensure the Agency can more efficiently track these entities. The October 21, 2015 final rule made slight revisions to the 2013 rule and delayed the effective dates of that rule. This final rule corrects the effective and compliance dates, revised in 2015, and corrects regulatory provisions that have not yet gone into effect, as well as several temporary sections that are in effect already, to allow FMCSA additional time to complete the information technology (IT) systems work.

    DATES:

    Effective Dates: The effective of this rule is July 28, 2016.

    The effective date of the rule published at 80 FR 63695 (October 21, 2015), is delayed until January 14, 2017, and §§ 365.T106, 368.T3, and 390.T200 are effective until January 13, 2017.

    The corrections to the rule published October 21, 2015 (80 FR 63695), are effective on January 14, 2017.

    The effective date of the rule published at 78 FR 52608 (August 23, 2013) is further delayed until January 14, 2017.

    Compliance Dates: The compliance date for the rule published at 80 FR 63695 (October 21, 2015), is delayed until January 14, 2017, and new applicants must comply with §§ 365.T106, 368.T3 or 390.T200 (as applicable) until January 13, 2017; private hazardous material carriers and exempt for-hire carriers must comply with § 387.19 or § 387.43 (as applicable) by April 14, 2017; and all entities must comply with § 366.2 by April 14, 2017.

    ADDRESSES:

    All background documents, comments, and materials related to this rule may be viewed in docket number FMCSA-1997-2349 using either of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov.

    • Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Kenneth Riddle, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202) 366-9616 or via email at [email protected] Office hours are from 8:00 a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Public Participation Viewing Documents

    To view comments submitted to previous rulemaking documents on this subject, go to http://www.regulations.gov and click on the “Read Comments” box in the upper right hand side of the screen. Then, in the “Keyword” box, insert “FMCSA-1997-2349” and click “Search.” Next, click “Open Docket Folder” in the “Actions” column. Finally, in the “Title” column, click on the document you would like to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays.

    Privacy Act

    All comments received were posted without change to http://www.regulations.gov. In accordance with 5 U.S.C. 553(c), DOT previously solicited comments from the public to better inform its rulemaking process. DOT posted these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    Corrections

    The FMCSA is correcting the effective and compliance dates for its August 23, 2013, Unified Registration System (URS) final rule, as revised on October 21, 2015, in order to delay implementation of the URS provisions. While the FMCSA had hoped to be able to reach full implementation by September 30, 2016, unforeseen delays and complications in the IT development process require that we push the full implementation back until January 14, 2017. These delays include added complexities due to an unrelated system migration to the cloud and also due to the logistics of transferring millions of records.

    In order to make this change, FMCSA must correct regulatory provisions that have not yet gone into effect, as well as several temporary sections that are in effect already. The method for making corrections differs depending upon whether or not the provision being corrected has gone into effect. First, under the heading “Federal Register corrections,” we provide the corrections for those provisions that are not yet in effect; these corrections will update the effective date for those provisions from September 30, 2016, to January 14, 2017. This will also update the compliance dates for certain provisions from December 31, 2016, to April 14, 2017.

    We are also making minor corrections to fix errors found in the final rule published on October 21, 2015. In § 366.4, we are adding a sentence to clarify the requirements for motor carriers operating in Hawaii or Alaska, as these were inadvertently not covered in the original text. In § 385.305, we are correcting the reference to the online registration form MCSA-1, which was published without the “1” after the hyphen. In § 387.301, we are correcting the text in paragraph (a)(1) to clarify the financial responsibility requirements for school buses, including third parties providing school bus services. We have identified this as an area causing confusion, so a correction is needed.

    After those corrections, numbered 1 through 6, we present the corrections to those provisions that came into effect on December 12, 2015. These corrections, which follow the “CFR amendments” heading, are presented as you would see amendatory instructions in any final rule. The result of these corrections will be to extend the effective dates of the temporary provisions in parts 365, 368, and 390 to January 14, 2017.

    Federal Register Corrections

    In FR Doc. 2015-26625 appearing on page 63695 in the Federal Register of Wednesday, October 21, 2015 (80 FR 63695), make the following corrections:

    1. Beginning on page 63702, in the first column, in amendatory instruction #1 and continuing through all of the amendatory instructions except for #5, #24, and #59, the date “September 30, 2016” is corrected to read “January 14, 2017”.

    2. On page 63706, in the first column, in § 366.2, the date “December 31, 2016” is corrected to read “April 14, 2017”.

    3. On page 63706, in the first column, in § 366.4(a), the text is corrected to read “Every motor carrier, except a motor carrier operating exclusively in Alaska or Hawaii, must designate process agents for all 48 contiguous States and the District of Columbia, unless its operating authority registration is limited to fewer than 48 States and DC. When a motor carrier's operating authority registration is limited to fewer than 48 States and DC, it must designate process agents for each State in which it is authorized to operate and for each State traversed during such operations. Every motor carrier operating in the United States in the course of transportation between points in a foreign country shall file a designation for each State traversed. Every motor carrier maintaining a principal place of business and operating exclusively in Alaska or Hawaii must designate a process agent for the State where operations are conducted.”

    4. On page 63707, in the second column, in § 385.305(b)(2), the phrase “Form MCSA-,” is corrected to read “Form MCSA-1,”.

    5. On page 63709, in the first column, in § 387.19, the date “December 31, 2016” is corrected to read “April 14, 2017”.

    6. On page 63709, in the third column, in § 387.301(a)(1), the text is corrected by adding the following sentence at the end of the paragraph: “Passenger motor carriers exempt under § 387.27 of this part are not subject to this limitation on transportation or required to file evidence of financial responsibility.”

    CFR Amendments List of Subjects 49 CFR Part 360

    Administrative practice and procedure, Brokers, Buses, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    49 CFR Part 365

    Administrative practice and procedure, Brokers, Buses, Freight forwarders, Motor carriers, Moving of household goods.

    49 CFR Part 366

    Brokers, Motor carriers, Freight forwarders, Process agents.

    49 CFR Part 368

    Administrative practice and procedure, Insurance, Motor carriers.

    49 CFR Part 385

    Administrative practice and procedure, Highway safety, Incorporation by reference, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 387

    Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 392

    Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    In consideration of the foregoing, FMCSA is amending 49 CFR chapter III, subchapter B, parts 365, 368, and 390 are corrected by making the following correcting amendments:

    PART 365—RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY 1. The authority citation for part 365 continues to read as follows: Authority:

    5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-13906, 14708, 31138, and 31144; 49 CFR 1.87.

    2. Revise § 365.T106(d) to read as follows:
    § 365.T106 Starting the application process: URS online application.

    (d) This section is in effect from December 12, 2015 through January 13, 2017.

    PART 368—APPLICATION FOR A CERTIFICATE OF REGISTRATION TO OPERATE IN MUNICIPALITIES IN THE UNITED STATES ON THE UNITED STATES-MEXICO INTERNATIONAL BORDER OR WITHIN THE COMMERCIAL ZONES OF SUCH MUNICIPALITIES 3. The authority citation for part 368 continues to read as follows: Authority:

    49 U.S.C. 13301 and 13902; Pub. L. 106-159, 113 Stat. 1748; and 49 CFR 1.87.

    4. Revise § 368.T3(d) to read as follows:
    § 368.T3 Starting the application process: URS online application.

    (d) This section is in effect from December 12, 2015 through January 13, 2017.

    PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 5. The authority citation for part 390 continues to read as follows: Authority:

    49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677, 1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-44); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; sections 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; and 49 CFR 1.87.

    6. Revise § 390.T200(a) and (d) to read as follows:
    § 390.T200 USDOT Registration.

    (a) Purpose. This section establishes who must register with FMCSA using the Form MCSA-1, the URS online application, beginning on December 12, 2015 and continuing through January 13, 2017.

    (d) Effective period. This section is in effect from December 12, 2015, through January 13, 2017.

    Issued under authority delegated in 49 CFR 1.87 on: July 14, 2016. T.F. Scott Darling, III, Acting Administrator.
    [FR Doc. 2016-17461 Filed 7-27-16; 8:45 am] BILLING CODE 4910-EX-P
    81 145 Thursday, July 28, 2016 Proposed Rules DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003, 1208 [EOIR Docket No. 170P; AG Order No. 3706-2016] RIN 1125-AA68 Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel AGENCY:

    Executive Office for Immigration Review, Department of Justice.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Justice (Department) is proposing to amend the regulations of the Executive Office for Immigration Review (EOIR) by establishing procedures for the filing and adjudication of motions to reopen removal, deportation, and exclusion proceedings based upon a claim of ineffective assistance of counsel. This proposed rule is in response to Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), in which the Attorney General directed EOIR to develop such regulations. The Department also proposes to amend the EOIR regulations that provide that ineffective assistance of counsel may constitute extraordinary circumstances that may excuse the failure to file an asylum application within 1 year after the date of arrival in the United States.

    DATES:

    Written comments must be postmarked and electronic comments must be submitted on or before September 26, 2016.

    ADDRESSES:

    You may submit comments, identified by EOIR Docket No. 170P, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.

    Mail: Jean King, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. To ensure proper handling, please reference EOIR Docket No. 170P on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.

    Hand Delivery/Courier: Jean King, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. Contact Telephone Number (703) 305-0470.

    FOR FURTHER INFORMATION CONTACT:

    Jean King, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).

    SUPPLEMENTARY INFORMATION: I. Public Participation

    Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

    All submissions received should include the agency name and EOIR Docket No. 170P for this rulemaking. Please note that all comments received are considered part of the public record and made available for public inspection at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

    If you want to submit personal identifying information (such as your name, address, etc.) 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 and identify what information you want redacted.

    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. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

    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. To inspect the agency's public docket file in person, you must make an appointment with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT section above for agency counsel's contact information.

    The reason that EOIR is requesting electronic comments before midnight Eastern Time on the day the comment period closes is because the inter-agency Regulations.gov/Federal Docket Management System (FDMS), which receives electronic comments, terminates the public's ability to submit comments at midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before midnight on the day the comment period closes.

    II. Executive Summary

    This proposed rule would establish standards for adjudicating motions to reopen based on ineffective assistance of counsel in immigration proceedings before the immigration judges and the Board of Immigration Appeals (Board or BIA). The Board has addressed reopening proceedings based on ineffective assistance of counsel in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). In Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. 2009) (Compean I), Attorney General Mukasey overturned, in part, the Board's decisions in Matter of Lozada and Matter of Assaad, and provided a new administrative framework for adjudicating motions to reopen based on ineffective assistance of counsel. However, in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) (Compean II), Attorney General Holder vacated Compean I, and directed EOIR to develop a proposed rule pertaining to such motions. Accordingly, the Department of Justice (Department) has drafted this proposed rule.

    Under this proposed rule, an individual seeking to reopen his or her immigration proceedings would have to establish that the individual was subject to ineffective assistance of counsel and that, with limited exceptions, he or she suffered prejudice as a result. The proposed rule would provide guidelines for determining when counsel's conduct was ineffective, and when an individual suffered prejudice. Under the proposed rule, a motion to reopen based on ineffective assistance of counsel would be required to include: (1) An affidavit, or a written statement executed under the penalty of perjury, providing certain information; (2) a copy of any applicable representation agreement; (3) evidence that prior counsel was notified of the allegations and of the filing of the motion; and (4) evidence that a complaint was filed with the appropriate disciplinary authorities. The proposed rule would permit adjudicators, in exercises of discretion committed exclusively to EOIR, to excuse noncompliance with these requirements in limited circumstances. The proposed rule would also provide that deadlines for motions to reopen can be equitably tolled in certain instances where the motion is based on ineffective assistance of counsel.

    The Department believes that this proposed rule would promote consistency in the reopening of EOIR proceedings based on ineffective assistance of counsel, thereby helping to ensure the integrity and fairness of those proceedings. Given the importance of the issues involved, the Department believes it is important for the public to be able to participate in formulating the framework for reopening proceedings based on ineffective assistance of counsel.

    III. Analysis of the Motion To Reopen Provisions in Proposed § 1003.48

    The Immigration and Nationality Act (“Act” or “INA”) provides the Attorney General with extensive authority relating to proceedings before the immigration courts and the Board. The Act provides the Attorney General with the authority to promulgate regulations governing such proceedings. See INA 103(g)(2). The Act further provides the Attorney General with the broad authority to reopen proceedings and recognizes her existing authority in this area. See INA 240(c)(7) (permitting a motion to reopen within 90 days of the date on which a final administrative order of removal is entered); INA 240(b)(5)(C) (granting an alien 180 days to seek reopening in order to rescind a removal order entered in absentia, and providing no time limit where the alien did not receive notice of the immigration hearing or was in custody and the failure to appear was through no fault of the alien).1 The Supreme Court also has long recognized the broad discretion accorded the Attorney General to grant or deny motions to reopen proceedings. See INS v. Doherty, 502 U.S. 314, 323 (1992) (“The granting of a motion to reopen is thus discretionary, and the Attorney General has `broad discretion' to grant or deny such motions.”) (internal citation omitted); accord INS v. Abudu, 485 U.S. 94, 105-06 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Matter of Coelho, 20 I&N Dec. 464, 471-72 (BIA 1992).2 Under the delegated authority of the Attorney General, the Board has consistently permitted the reopening of immigration proceedings based upon a claim of ineffective assistance of counsel. See Matter of Assaad, 23 I&N Dec. at 558; Matter of Lozada, 19 I&N Dec. at 639-40. The Department believes that, in appropriate cases, reopening immigration proceedings based upon a claim of ineffective assistance of counsel continues to be a permissible exercise of the Attorney General's broad discretion.

    1 The Act's provisions relating to motions to reopen took effect in 1997. Motions to reopen immigration proceedings had previously been permitted by regulation. See generally Dada v. Mukasey, 554 U.S. 1, 12-15 (2008).

    2 The Act imposes requirements that must be met for a motion to reopen to be granted. See, e.g., INA 240(c)(7)(B) (“The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.”). The Act's implementing regulations elaborate on these requirements. See 8 CFR 1003.23(b)(3) (“A motion to reopen will not be granted unless the Immigration Judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”); 8 CFR 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing[.]”); cf. 8 CFR 1003.23(b)(1) (“An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals.”); 8 CFR 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”); Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (“Notwithstanding the statutorily mandated restrictions, the Board retains limited discretionary powers under the regulations to reopen or reconsider cases on our own motion. . . . The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.”) (internal citation omitted).

    Immigration proceedings are civil proceedings with high stakes, including the potential removal from the United States of an individual with long-standing family or other ties, or the grant or denial of relief or protection to an individual who claims to fear harm in his or her native country. See, e.g., Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008); Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir. 2007). Considering the serious consequences that may result from immigration proceedings, the Attorney General believes that it is paramount to ensure the integrity and fairness of such proceedings. The Attorney General therefore proposes to exercise her authority and discretion to regulate the administrative process of immigration proceedings before the immigration courts and the Board by codifying an administrative remedy for individuals who were in removal, deportation, or exclusion proceedings before EOIR and were subject to ineffective assistance of counsel.3

    3 The Department notes that there is currently a split among the circuits regarding whether there is a constitutionally-based right to effective counsel in immigration proceedings. Compare, e.g., Lin Xing Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011) (“No statute or constitutional provision entitles an alien who has been denied effective assistance of counsel to reopen the proceedings on the basis of that denial. This Circuit has recognized, nevertheless, that the denial of effective assistance of counsel may under certain circumstances violate the due process guarantee of the Fifth Amendment.”) (brackets, ellipsis, and internal quotation marks and citation omitted); Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (“A claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment—i.e., as a violation of that amendment's guarantee of due process.”), Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (“While aliens in deportation proceedings do not enjoy a Sixth Amendment right to counsel, they have due process rights in deportation proceedings.”), and Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) (“While an alien does not have a right to appointed counsel, he does have a Fifth Amendment right to a fundamentally fair proceeding.”), with Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008) (“[W]e hold that there is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding.”). It is beyond the scope of this proposed rule to address whether there is a constitutionally-based right to effective assistance of counsel in immigration proceedings. Rather, this rule is limited to providing an administrative remedy under appropriate circumstances based on the Attorney General's statutory authority and discretion. We note, however, that Attorney General Holder's order in Compean II, 25 I&N Dec. at 3, provided that nothing in that order would affect the litigating positions of the Department, and the Department has consistently argued before the Supreme Court that there is no constitutional right to effective assistance of counsel in immigration proceedings. E.g., Brief for Respondent on Petition for a Writ of Certiorari at 14 n.3, Mata v. Holder, 135 S. Ct. 1039 (2015) (No. 14-185). Nothing in the proposed regulations affects this position.

    The proposed rule would establish procedures and substantive requirements for the filing and adjudication of motions to reopen removal, deportation, and exclusion proceedings before the immigration judges and the Board based upon a claim of ineffective assistance of counsel. The rule would build on procedures, established in Matter of Lozada and Matter of Assaad, governing motions to reopen based upon a claim of ineffective assistance of counsel.

    Matter of Lozada, decided by the Board in 1988, established a three-step procedure for individuals moving to reopen their deportation proceedings—which are now known as removal proceedings—based upon a claim of ineffective assistance of counsel. These three steps are commonly referred to as the Lozada requirements or Lozada factors, and they provide a “basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board.” Matter of Lozada, 19 I&N Dec. at 639. First, “[a] motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit attesting to the relevant facts,” including “a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken [in the relevant proceeding] and what counsel did or did not represent to the [individual] in this regard.” Id. Second, “former counsel must be informed of the allegations and allowed the opportunity to respond,” and that response (or lack thereof) should accompany the motion. Id. Third, “the motion should reflect whether a complaint has been filed with the appropriate disciplinary authorities regarding such representation, and if not, why not.” Id.

    In Matter of Lozada, the Board also noted specifically that “[l]itigants are generally bound by the conduct of their attorneys, absent egregious circumstances.” Id. (citing LeBlanc v. INS, 715 F.2d 685 (1st Cir. 1983)); see also Matter of B-B-, 22 I&N Dec. 309, 310-11 (BIA 1998). In denying the ineffective assistance claim in Matter of Lozada, the Board noted that “[n]o such egregious circumstances have been established in this case.” Matter of Lozada, 19 I&N Dec. at 639.

    The Board also required, in Matter of Lozada, that the individual filing the motion establish prejudice. See id. at 638, 640. The Board did not set forth a specific standard for prejudice, but simply noted that “no prejudice was shown to have resulted from prior counsel's” conduct in that case. Id. at 640.

    For over 20 years since the Board's decision, Matter of Lozada has provided a workable administrative framework for adjudicating ineffective assistance claims in what are now known as removal proceedings. Thus, Matter of Lozada serves as a solid starting point for setting up a framework for this proposed rule. This framework affords relief to an individual in removal, deportation, or exclusion proceedings harmed by his or her attorney's ineffectiveness and at the same time takes into consideration countervailing concerns regarding abuse of the legal process and delay of immigration proceedings.

    The Federal courts of appeals have generally endorsed the Lozada requirements. In doing so, courts have recognized the important policy considerations those requirements embody. See, e.g., Beltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (“[The Matter of Lozada] framework . . . is designed to screen out frivolous, stale, and collusive claims.”); Patel v. Gonzales, 496 F.3d 829, 831-32 (7th Cir. 2007) (“The Lozada requirements reduce the potential for abuse by providing information from which the BIA can assess whether an ineffective assistance claim has enough substance to warrant the time and resources necessary to resolve the claim on its merits.”); Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) (“We presume, as a general rule, that the Board does not abuse its discretion when it obligates [individuals] to satisfy Lozada's literal requirements.”); Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) (suggesting that Matter of Lozada provides “fair and efficacious techniques for screening out, ab initio, the numerous groundless and dilatory claims routinely submitted in these cases.”); Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003) (“. . . Lozada's policy goals . . . are to provide a framework within which to assess the bona fides of the substantial number of ineffective assistance claims asserted, to discourage baseless allegations and meritless claims, and to hold attorneys to appropriate standards of performance.”).

    While the Federal courts of appeals have generally endorsed the Lozada requirements, several courts have adopted varying interpretations for determining compliance with the Lozada requirements, establishing prejudice, and applying equitable tolling to the filing deadlines for motions to reopen based upon a claim of ineffective assistance of counsel. As discussed below, the courts of appeals have differed on what circumstances, if any, may excuse noncompliance with the Lozada requirements. For example, some courts have been flexible in applying the Lozada requirements where, in the court's view, strict compliance is not necessary to achieve the requirements' purpose. See, e.g., Morales Apolinar v. Mukasey, 514 F.3d 893, 896 (9th Cir. 2008) (“In practice, we have been flexible in our application of the Lozada requirements. The Lozada factors are not rigidly applied, especially where their purpose is fully served by other means.”); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir. 2001) (concluding that the Lozada requirements are “a reasonable exercise of the Board's discretion,” id. at 132, but stressing “that the failure to file a [bar] complaint is not fatal if a petitioner provides a reasonable explanation for his or her decision,” id. at 134) (emphasis in original); cf. Patel, 496 F.3d at 831 (holding that “[t]he BIA is free to deny motions to reopen for failure to comply with Lozada as long as it does not act arbitrarily”). One court has found that there are circumstances where compliance with the requirements is unnecessary. See, e.g., Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000) (finding that there is no need to comply with Matter of Lozada where the record establishes on its face ineffective assistance of counsel).

    The Federal courts of appeals have also proposed varying standards for prejudice. Some courts have required a strict standard for evaluating prejudice. See, e.g., Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (requiring the individual filing the motion to “establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States”). Other courts have applied a standard similar to that established by Strickland v. Washington, 466 U.S. 668, 694 (1984), which held that prejudice exists when there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See, e.g., Fadiga v. Att'y Gen., 488 F.3d 142, 158-59 (3d Cir. 2007) (agreeing that Strickland's “reasonable probability” standard is appropriate in the context of removal proceedings); Obleshchenko v. Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004) (characterizing the court's prejudice standard as “akin” to the Strickland test).

    In addition, while the courts of appeals that have reached the issue have permitted the equitable tolling of filing deadlines for untimely motions to reopen based upon claims of ineffective assistance of counsel, some courts have not yet fully addressed whether these deadlines can be equitably tolled.4 Compare, e.g., Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (“Equitable tolling may apply when a petitioner has received ineffective assistance of counsel.”) (internal quotation marks omitted), with Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010) (stating that “[w]e assume arguendo, but do not decide, that the time and number limits on motions to reopen are subject to equitable tolling”). There is also a lack of uniformity among the courts regarding the precise requirements and standards that an individual must meet to establish due diligence in order to be eligible for equitable tolling. Compare, e.g., Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007) (providing that the filing deadline “is [equitably] tolled until the petitioner `definitively learns' of counsel's fraud,” if the petitioner acted with due diligence), with Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (providing that “[e]quitable tolling requires a court to consider whether a reasonable person in the plaintiff's position would have been aware of the possibility that he had suffered an injury”) (internal quotation marks omitted).

    4 Equitable tolling refers to “[t]he doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.” Black's Law Dictionary 579 (8th ed. 2004).

    The purpose of this proposed rule is to establish uniform procedural and substantive requirements for the filing of motions to reopen based upon a claim of ineffective assistance of counsel and to provide a uniform standard for adjudicating such motions. Like Matter of Lozada and its progeny, this proposed rule would provide an “objective basis from which to assess the veracity of the substantial number of ineffective assistance claims,” would “hold attorneys to appropriate standards of performance,” and would “ensure both that an adequate factual basis exists in the record for an ineffectiveness [motion] and that the [motion] is a legitimate and substantial one.” Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir. 2010) (discussing the goals behind Matter of Lozada) (internal quotation marks omitted). While allowing for some flexibility, the proposed rule would clarify the specific kinds of evidence and documentation to be submitted in support of motions to reopen based upon a claim of ineffective assistance of counsel. The filing requirements described in this rule would serve to guide an individual filing a motion to reopen in providing evidence necessary for a determination as to whether his or her counsel was ineffective. As the Board stated in Matter of Lozada, “[t]he high standard announced here is necessary if we are to have a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board. Where essential information is lacking, it is impossible to evaluate the substance of such claim.” Matter of Lozada, 19 I&N Dec. at 639.

    This proposed rule would add new § 1003.48 to title 8 of the Code of Federal Regulations (“regulations”). New § 1003.48 would provide the filing and evidentiary requirements for motions to reopen based upon a claim of ineffective assistance of counsel. This section would also incorporate standards for evaluating whether an individual has established that he or she (1) acted with due diligence for the purpose of determining the applicability of equitable tolling and (2) was prejudiced by prior counsel's conduct. In addition, this proposed rule would add a cross-reference to new § 1003.48 to the current regulations governing motions to reopen proceedings and to rescind orders of removal, deportation, or exclusion entered in absentia.

    The Department notes that the Board has consistently permitted the reopening of proceedings based upon a claim of ineffective assistance of counsel. See Matter of Assaad, 23 I&N Dec. at 558.5 The requirements in proposed new § 1003.48 would be in addition to the general requirements for reopening provided in section 240(c)(7) of the Act and §§ 1003.2 and 1003.23 of the regulations. Thus, motions to reopen proceedings based upon a claim of ineffective assistance of counsel would need to meet the general requirements for reopening in proposed §§ 1003.2 and 1003.23, as well as the procedural and substantive requirements for such motions at proposed § 1003.48. The Board and the immigration judges, moreover, have broad authority to grant or deny a motion in the exercise of discretion, and this includes the discretion to deny a motion even if the party moving has presented a prima facie case for relief. See 8 CFR 1003.2(a), 1003.23(b)(3); see also Abudu, 485 U.S. at 105 (explaining that, even where an individual filing a motion to reopen has presented a prima facie case for relief, the Board may deny the motion if the movant would not be entitled to the discretionary relief ultimately at issue).

    5 Section 240 of the Act is applicable only to removal proceedings (which are initiated on or after April 1, 1997), but, by far, most motions to reopen are filed in removal proceedings. For clarity, we note that in deportation and exclusion proceedings, and all other types of proceedings before the immigration judges and the Board, motions to reopen are governed exclusively by the Attorney General's regulations in 8 CFR 1003.2 and 1003.23, not by section 240 of the Act.

    A. Applicability

    The proposed provisions of the rule addressing motions to reopen based upon a claim of ineffective assistance of counsel would cover conduct that occurred only after removal, deportation, or exclusion proceedings have commenced with the immigration courts.6 With the exception discussed below, the proposed provisions of § 1003.48 would not apply to motions to reopen proceedings before the immigration judge or the Board based on counsel's conduct before another administrative or judicial body, including before, during the course of, or after the conclusion of immigration proceedings. This includes conduct that was immigration-related or that occurred before the U.S. Department of Homeland Security (DHS) or another government agency. See, e.g., Contreras v. Att'y Gen., 665 F.3d 578, 585-86 (3d Cir. 2012) (declining to find ineffective assistance of counsel in the preparation and filing of a visa petition where counsel's conduct “did not compromise the fundamental fairness of” subsequent removal proceedings); Balam-Chuc v. Mukasey, 547 F.3d 1044, 1051 (9th Cir. 2008) (same where counsel's conduct “[did] not relate to the fundamental fairness of an ongoing proceeding”). The reason for this limitation is that the Board and the immigration judges are generally not in a position to provide a remedy in a situation where an attorney's performance before another administrative or judicial body is alleged to be ineffective. Rather, a request for a remedy in such a situation would be more appropriately directed to that administrative or judicial body before which the alleged ineffective assistance occurred. Cf. Rivera v. United States, 477 F.2d 927, 928 (3d Cir. 1973) (holding that, where the petitioner's appeal had been dismissed because his attorney failed to file a brief, the petitioner's remedy was through a motion in the court of appeals requesting that the mandate be recalled to determine whether the appeal should be reinstated, not through a motion in the district court); United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir. 1983) (same).

    6 For purposes of this rule, included as “removal, deportation, or exclusion proceedings” would be asylum-only and withholding-only proceedings, given that those proceedings are “conducted in accordance with the same rules of procedure as [removal proceedings].” 8 CFR 1208.2(c)(3)(i). This rule would not apply in bond proceedings. However, in bond proceedings, after an immigration judge makes an initial bond redetermination, an individual can request, in writing, that the immigration judge make “a subsequent bond redetermination . . . [based] upon a showing that the alien's circumstances have changed materially since the prior bond redetermination.” 8 CFR 1003.19(e). In addition, this rule would not apply in practitioner discipline proceedings conducted under 8 CFR part 1003 subpart G.

    The proposed motion provisions in § 1003.48 would provide for one explicit exception to the limitation on the Board's authority to provide a remedy for ineffective assistance of counsel before another administrative or judicial body. The exception would be with respect to a claim that counsel was ineffective for failing to file a timely petition for review of a Board decision with the appropriate court of appeals. Under the proposed rule at § 1003.48(c), an individual could file a motion to reopen with the Board in such a situation, and the Board would have discretion to reopen proceedings to address such a claim. The reason for allowing such a motion is that the failure to file a timely petition for review leaves the court of appeals without any jurisdiction to address the claim of ineffectiveness given that the 30-day deadline for filing a petition for review is mandatory and jurisdictional. See INA 242(a)(1), (b)(1); see, e.g., Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012); Ruiz-Martinez v. Mukasey, 516 F.3d 102, 117-18 (2d Cir. 2008); Dakane v. U.S. Att'y. Gen., 399 F.3d 1269, 1272 n. 3 (11th Cir. 2004); Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007). This exception is consistent with the general principles expressed in both Compean I and Compean II; in both decisions, the Attorney General contemplated that the Board could provide a remedy for ineffective assistance that occurred after the issuance of a final order of removal. See Compean I, 24 I&N Dec. at 740 (stating that “the [view] I adopt today . . . is that the Board has jurisdiction to consider deficient performance claims even where they are predicated on lawyer conduct that occurred after a final order of removal has been entered”); Compean II, 25 I&N Dec. at 3 (noting that, “prior to Compean[ I], the Board itself had not resolved whether its discretion to reopen removal proceedings includes the power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal had been entered,” and stating that “I resolve the question in the interim by concluding that the Board does have this discretion, and I leave it to the Board to determine the scope of such discretion”).

    For his or her case to be reopened, an individual filing the motion based on failure to file a timely petition for review would have to comply with the requirements of § 1003.48(b)(1)-(3) (affidavit, notice to counsel, and complaint filed with the appropriate disciplinary authorities), described in more detail below. Under § 1003.48(c)(2), in order to establish that counsel acted ineffectively, the individual would have to establish that counsel had agreed to file a petition for review but failed to do so. To meet this burden, the individual would have to submit a representation agreement making clear that the scope of representation included the filing of a petition for review, or would have to otherwise establish that the scope of representation included the filing of a petition for review.

    The proposed motion provisions would only apply to the conduct of certain individuals. With the exception discussed below, these provisions would cover only the conduct of attorneys and accredited representatives as defined in part 1292 of title 8 of the Code of Federal Regulations. The reason for such a limitation is that attorneys and accredited representatives are governed by rules of professional conduct and have skills, including knowledge of immigration laws and procedures, which are directly related to furthering the interests that individuals and the government have in fair and accurate immigration proceedings. See, e.g., Hernandez v. Mukasey, 524 F.3d 1014, 1018-20 (9th Cir. 2008) (noting that, in contrast to the law's treatment of attorneys possessing particular skills and governed by specific professional standards, “the law has never presumed that [the participation of non-attorney `immigration consultants'] is necessary or desirable to ensure fairness in removal proceedings,” id. at 1019, and that, if “an individual . . . knowingly relies on assistance from individuals not authorized to practice law, such a voluntary choice will not support a due process claim based on ineffective assistance of counsel,” id. at 1020). With limited exceptions, a person who is not an attorney or accredited representative is not permitted to represent individuals in proceedings before the immigration courts or the Board. See 8 CFR 1292.1(a)(1)-(5). Moreover, the regulations require the immigration judge to advise individuals in removal proceedings of their right to representation, at no expense to the government, by counsel of their choice authorized to practice in the proceedings, and specifically require that individuals in proceedings be advised of the availability of pro bono legal services and receive a list of such services. See 8 CFR 1003.16, 1003.61, 1240.10(a)(1).

    However, this proposed rule would recognize that, sometimes, a person who is not an attorney or accredited representative may lead an individual in removal, deportation, or exclusion proceedings to believe that the person is an attorney or representative, and that the individual in proceedings, as a result of that mistaken belief, may retain that person to represent him or her in such proceedings. When this occurs, in assessing whether to reopen proceedings, the immigration judge or the Board would evaluate on a case-by-case basis whether it was reasonable for the individual in such proceedings to believe that the person in question was indeed an attorney or an accredited representative, and whether he or she then retained that person. See §§ 1003.23(b)(4)(v), 1003.48(a)(1). In evaluating these questions, the immigration judge or the Board could consider, among others, the following inquiries: whether, and the extent to which, the person held himself or herself out as an attorney or accredited representative; whether the individual in proceedings knowingly relied on the assistance of the person not authorized to practice law; and the extent of the representation, including whether the person appeared in the immigration proceedings or completed, signed, or submitted documents or evidence in such proceedings on behalf of the individual.

    B. Effective Date

    In addition to the above limitations, the proposed provisions of § 1003.48 would apply only to motions to reopen proceedings based upon a claim of ineffective assistance of counsel filed with the immigration courts or the Board on or after the effective date of the final rule.

    C. Proposed Requirements in § 1003.48 for Filing a Motion To Reopen Based Upon a Claim of Ineffective Assistance of Counsel

    The proposed rule at § 1003.48 would provide filing and evidentiary requirements for motions to reopen based upon a claim of ineffective assistance of counsel. In order to succeed in a motion to reopen, the individual filing the motion would have to submit evidence both that prior counsel's conduct was ineffective and that the individual was prejudiced as a result of counsel's ineffective assistance.

    With respect to the specific conduct that would amount to ineffective assistance in immigration proceedings, this rule would not set any bright line standards, or an enumerated list, of what specific conduct would amount to ineffective assistance in immigration proceedings. Rather, the proposed rule would provide, at § 1003.48(a)(2), that “[a] counsel's conduct constitutes ineffective assistance of counsel if the conduct was unreasonable, based on the facts of the particular case, viewed as of the time of the conduct.”

    This provision, in calling for an inquiry based on the reasonableness of the counsel's conduct, viewed when the conduct occurred, would be based on the Supreme Court's holding in Strickland. There, the Court stated that “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by . . . counsel or the range of legitimate decisions regarding how best to represent a [client].” Strickland, 466 U.S. at 688-89. Rather, for an attorney's representation to constitute ineffective assistance, the representation “must . . . [fall] below an objective standard of reasonableness,” id. at 688, judged “on the facts of the particular case, [and] viewed as of the time of counsel's conduct,” id. at 690; see also Wong v. Belmontes, 558 U.S. 15, 16-17 (2009) (per curiam) (citing Strickland, 466 U.S. at 687-89).

    Under this proposed provision, a tactical decision would not be ineffective assistance if the decision was reasonable when it was made, even if it proved unwise in hindsight. See Strickland, 466 U.S. at 689 (stating that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight”); Mena-Flores v. Holder, 776 F.3d 1152, 1169 (10th Cir. 2015) (stating that “[a]n attorney's objectively reasonable tactical decisions do not qualify as ineffective assistance”); Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (holding that “recommending [a] strategic decision [that ultimately does not succeed] does not constitute ineffective assistance of counsel”); Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) (holding that the attorney's decision not to contest deportability, even if “unwise” in hindsight, was not ineffective assistance of counsel); Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981) (holding that a tactical “decision to forego challenging [an] accusation of entry without inspection . . . even if in hindsight unwise, does not constitute ineffective assistance”); cf. Matter of Velasquez, 19 I&N Dec. 377, 383 (BIA 1986) (stating that the attorney's “admissions [of factual allegations] and the concession of deportability were reasonable tactical actions,” and thus were binding). Further, under this proposed provision, we expect that there would be “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

    The filing requirements described in proposed § 1003.48(b)(1)-(3) would serve to guide the individual filing the motion in providing the evidence necessary for a determination as to whether his or her counsel's conduct was ineffective. In order to demonstrate that counsel's conduct was ineffective, the motion should set forth clearly the particular circumstances underlying a given case. In order to prevail, the individual may need to submit documentary or other supporting evidence beyond that described in § 1003.48(b)(1)-(3). For example, additional evidence could include evidence of payment to prior counsel or an affidavit explaining what the individual in proceedings specifically disclosed to prior counsel, such as the individual's family ties or criminal history. Additional supporting evidence could also include written statements from current counsel or witnesses regarding prior counsel's conduct.

    As discussed in detail in section E, in addition to demonstrating that prior counsel's conduct was ineffective, the individual filing the motion would have the burden of establishing that the individual was prejudiced as a result of that conduct. The requirement of providing evidence that the prior counsel was ineffective would be distinct from establishing prejudice as required in § 1003.48(b)(4). The Department cautions that the immigration judge or the Board would have the discretion to deny the motion without reaching the issue of prejudice, if the individual does not submit arguments or evidence establishing that the prior counsel's conduct was ineffective.

    Proposed § 1003.48 would describe the required evidence to be included with a motion to reopen proceedings before the immigration judge or the Board based upon a claim of ineffective assistance of counsel. Section 1003.48(b)(1)(i) would require an individual to submit an affidavit, or a written statement executed under the penalty of perjury as provided in 28 U.S.C. 1746,7 setting forth in detail the agreement that was entered into with prior counsel with respect to the actions to be taken by counsel, and what representations counsel did or did not make in this regard.

    7 Under 28 U.S.C. 1746, an unsworn declaration, certification, verification, or statement executed in the United States is deemed to be made under penalty of perjury if it includes the following words “in substantially the following form”: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). . . . (Signature).”

    An affidavit is “[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Black's Law Dictionary 58 (6th ed. 1990). The “affidavit provides an exact, sworn recitation of facts, collected in one place . . . . [T]he affidavit requirement serves not only to focus the facts underlying the charge, but to foster an atmosphere of solemnity commensurate with the gravity of the claim.” Reyes, 358 F.3d at 598 (ellipsis and brackets in original) (quoting Keating v. Office of Thrift Supervision, 45 F.3d 322, 327 (9th Cir. 1995)). The Department recognizes, however, that some individuals, particularly those who are unrepresented, may face burdens in complying with the technical requirements of an affidavit. For example, an unrepresented individual may be in detention and without ready access to an official with authority to administer an oath or affirmation. For that reason, § 1003.48(b)(1)(i) would permit the submission of a written statement, executed under the penalty of perjury as provided in 28 U.S.C. 1746, that does not meet the technical requirements of an affidavit. In addition, as described in more detail below, the Board or an immigration judge could, in an exercise of discretion committed solely to EOIR, excuse the requirement that the written statement be executed under the penalty of perjury in certain limited instances.

    Proposed § 1003.48(b)(1)(ii) would provide that, in addition to the affidavit or written statement executed under the penalty of perjury, the individual filing the motion must submit a copy of any agreement entered into with prior counsel. If no agreement is provided, the individual would have to explain its absence in the affidavit or written statement, for example by describing his or her efforts to obtain the agreement from prior counsel. In addition, the individual would have to provide any reasonably available evidence on the scope of the agreement and the reasons for its absence, for example by providing evidence that the representation agreement was unwritten. The requirement to provide evidence of the agreement with prior counsel would help immigration judges and the Board to understand the “nature, scope, or substance” of the attorney's obligations, if any, to his or her client, and thus whether prior counsel was ineffective. Beltre-Veloz, 533 F.3d at 10; see also Punzalan v. Holder, 575 F.3d 107, 111-12 (1st Cir. 2009) (quoting Beltre-Veloz, 533 F.3d at 10); Ruiz-Martinez, 516 F.3d at 121 (rejecting an ineffective assistance of counsel claim because the individual filing the motion “did not set forth his agreement with his prior attorneys concerning what actions would be taken or what they did or did not represent in this regard”).

    Proposed § 1003.48(b)(2) would require an individual filing a motion to provide evidence that the counsel whose representation is claimed to have been ineffective has been informed of the allegations leveled against that counsel and that a motion to reopen alleging ineffective assistance of counsel would be filed on that basis. As discussed in Matter of Lozada, this requirement would mitigate the possibility of abuse by providing a “mechanism . . . for allowing former counsel . . . to present his version of events if he so chooses.” 19 I&N Dec. at 639; see Debeatham v. Holder, 602 F.3d 481, 485-86 (2d Cir. 2010). Additionally, this “notice requirement [would] provide[ ] a mechanism by which the [immigration judge] may more accurately assess the merits of [an] ineffective assistance claim.” Reyes, 358 F.3d at 599.

    The Department notes that merely copying counsel on a complaint filed with the appropriate State bar or governmental authority would not be sufficient to meet the notice requirement; rather, the individual filing the motion would have to provide notice to his or her prior counsel in a separate written correspondence that a motion to reopen would be filed alleging ineffective assistance of counsel. With the motion, the individual would also have to provide evidence of the date he or she provided notice to prior counsel, and the manner in which this notice was provided, and the individual would have to include a copy of the correspondence to the attorney. The individual would also have to submit to the immigration court or the Board any subsequent response from prior counsel. This obligation would continue until such time as a decision is rendered on the motion.

    Proposed § 1003.48(b)(3) would further require the individual filing the motion to file a complaint with the appropriate disciplinary authorities with respect to any violation of prior counsel's ethical or legal responsibilities. This requirement would help to monitor the legal profession and to assist the appropriate disciplinary authorities in considering and acting on instances of ineffective assistance of counsel. See, e.g., Matter of Rivera, 21 I&N Dec. 599, 603-05 (BIA 1996). Additionally, it would “highlight[ ] the standard[s] which should be expected of attorneys who represent persons in immigration proceedings, the outcome of which may, and often does, have enormous significance for the person.” Sswajje v. Ashcroft, 350 F.3d 528, 533 (6th Cir. 2003) (quoting Matter of Lozada, 19 I&N Dec. at 639-40); see also Reyes, 358 F.3d at 596 (same). The requirement would “also serve[ ] to protect against collusion between alien and counsel in which `ineffective' assistance is tolerated, and goes unchallenged by an alien before disciplinary authorities, because it results in a benefit to the alien in that delay can be a desired end, in itself, in immigration proceedings.” Matter of Rivera, 21 I&N Dec. at 604; see also Betouche, 357 F.3d at 150 (recognizing the “significant prospect that entirely meritless and/or collusive ineffective assistance claims may be filed for purely dilatory purposes”); Xu Yong Lu, 259 F.3d at 133 (quoting Matter of Rivera, 21 I&N Dec. 599, on the purposes of the bar complaint requirement).

    The proposed rule provides that the individual filing the motion would have to file the complaint against his or her representative with the appropriate disciplinary authorities. For an attorney, the individual would have to file the complaint with the relevant State licensing authority. For an accredited representative, the individual would have to file the complaint with the EOIR disciplinary counsel.8 Where the individual filing the motion reasonably but erroneously believed a person to be an attorney or accredited representative and retained that person to represent him or her in the proceedings before the immigration judge or the Board, the individual would have to file the complaint with an appropriate State or local law enforcement agency (which in some States may include the State Attorney General's office) with authority over matters relating to the unauthorized practice of law or immigration-related fraud. If the individual filing the motion has any questions regarding determining the appropriate State or local enforcement agency with authority over such matters in proceedings before the immigration judges or the Board, he or she should contact the Fraud and Abuse Prevention Program in the Office of the General Counsel at EOIR at (703) 305-0470.

    8 Individuals in immigration proceedings are permitted representation of their choosing before EOIR and may be represented by an accredited representative. 8 CFR 1003.16, 1292.1. The proposed rule would require that complaints against accredited representatives be filed with the EOIR disciplinary counsel because EOIR is responsible for the accreditation process and the EOIR disciplinary counsel is responsible for investigating allegations of misconduct against accredited representatives appearing before the immigration courts and the Board. See 8 CFR 1003.104, 1292.2(d). The Department notes that the Board and some circuit courts have analyzed ineffective assistance of counsel claims without expressly addressing whether the Matter of Lozada requirements should be strictly applied to an accredited representative. See, e.g., Matter of Zmijewska, 24 I&N Dec. 87, 94-95 (BIA 2007); Romero v. INS, 399 F.3d 109, 112-13 (2d Cir. 2005). The Department has determined, however, that due to EOIR's ability to accredit and to discipline accredited representatives, an accredited representative should be treated the same as an attorney for purposes of determining ineffective representation. Thus, the Department has determined that the requirements for reopening based upon a claim of ineffective assistance of counsel should be applied to an accredited representative appearing in cases before the immigration judges or the Board in the same manner as the requirements are applied to an attorney.

    The individual filing the motion would have to submit a copy of the complaint and any correspondence from the disciplinary authority with his or her motion to the immigration court or the Board. In addition to filing the required complaint, the individual would not be precluded from taking any other actions to notify appropriate governmental or disciplinary authorities regarding the conduct of his or her prior counsel, accredited representative, or any person retained by the individual whom he or she reasonably but erroneously believed to be an attorney or accredited representative, and submitting evidence of such actions with his or her motion. In addition, the Department notes that this rule would not preclude the individual from taking any other actions to notify the appropriate governmental or disciplinary authorities regulating the unauthorized practice of law regarding any person not authorized to practice law.

    The Department welcomes input from the public about the requirement to submit, with a motion to reopen, a complaint filed with the appropriate disciplinary authorities. As noted above, there are important policy reasons for this requirement, although the Department acknowledges certain countervailing concerns, as referenced by Attorney General Mukasey in Compean I, see 24 I&N Dec. at 737-38. The Department welcomes comments, including from State licensing authorities, regarding the efficacy of this requirement in assisting State licensing authorities in regulating the legal profession.

    Finally, proposed § 1003.48(b) would require the individual filing the motion to comply with the existing requirements for motions to reopen in §§ 1003.2 and 1003.23. Sections 1003.2 and 1003.23 require the individual to submit evidence of what will be proven at the hearing if the motion is granted and to submit any appropriate applications for relief, supporting documentation, or other evidentiary material. For a motion based on ineffective assistance of counsel, this could include evidence that the filer's prior counsel failed to provide to the immigration judge or the Board, or other independent evidence, such as affidavits, applications for relief and supporting documentation, proffered testimony of potential witnesses, family history, country conditions, identity documentation, or criminal records or clearances.

    After promulgation of this rule, the Department may publish additional information, such as in a fact sheet or other format, to assist the public in filing motions to reopen based upon a claim of ineffective assistance of counsel. Additionally, the Department will seek out opportunities to engage the public in an effort to inform individuals about the process. The Department welcomes input from the public regarding what type of information might best assist counsel and unrepresented individuals in the preparation and filing of such motions with the immigration courts and the Board as well as information and ideas on how best to engage impacted communities.

    D. Compliance With the Filing Requirements in Proposed § 1003.48

    As discussed above, the evidentiary requirements in proposed § 1003.48 would guide individuals in proceedings in providing the evidence necessary for a determination of whether the counsel's conduct was ineffective, and would assist the immigration judge and the Board in making this determination. See generally Matter of Lozada, 19 I&N Dec. at 639-40 (discussing how these evidentiary requirements assist the adjudicator in evaluating a claim of ineffective assistance of counsel); Matter of Assaad, 23 I&N Dec. at 556-57 (same); Matter of Rivera, 21 I&N Dec. at 603-07 (same).

    Most circuits have required some level of compliance with Matter of Lozada. The First Circuit, for example, has generally required that the Matter of Lozada requirements be satisfied. See, e.g., Georcely v. Ashcroft, 375 F.3d 45, 51 (1st Cir. 2004) (noting that “[a]lthough we have hinted that full compliance with Lozada's requirements might be excused in an appropriate case, the Lozada requirements generally make sense”) (internal citation omitted). The court in Georcely reasoned:

    It is all too easy after the fact to denounce counsel and achieve a further delay while that issue is sorted out. And in the absence of a complaint to the bar authorities, counsel may have all too obvious an incentive to help his client disparage the quality of the representation.

    Id.; see also Punzalan, 575 F.3d at 111 (“The BIA acts within its discretion in denying motions to reopen that fail to meet the Lozada requirements as long as it does so in a non-arbitrary manner.”) (internal quotation marks omitted); Betouche, 357 F.3d at 150-51 (setting forth reasons for the Matter of Lozada requirements).

    The Seventh, Eighth, and Tenth Circuits have also generally required compliance, but have not yet determined whether they might overlook a lack of compliance with the Matter of Lozada requirements in an appropriate case. See Patel, 496 F.3d at 831 (noting that “[w]e have not expressly decided whether the BIA abuses its discretion by requiring strict compliance with Lozada”); Habchy v. Gonzales, 471 F.3d 858, 863 (8th Cir. 2006) (noting that the Eighth Circuit “has not ruled on whether a strict application of those requirements could constitute an abuse of discretion in certain circumstances,” but stating that, “[a]t the very least, an [immigration judge] does not abuse his discretion in requiring substantial compliance with the Lozada requirements when it is necessary to serve the overall purposes of Lozada”); Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir. 2003) (stating that “[w]e not decide whether substantial compliance would be sufficient because Mr. Tang has made no attempt to comply with any of Lozada's requirements”); see also Stroe v. INS, 256 F.3d 498, 504 (7th Cir. 2001) (noting that “we have difficulty understanding how an alien who fails to comply with the Board's criteria can succeed in challenging its decision”).

    The Sixth Circuit has also required that individuals filing motions generally comply with all three Lozada requirements, noting that “[s]ound policy reasons support compliance” and the requirements “facilitate a more thorough evaluation by the BIA and discourage baseless allegations.” Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003) (internal quotation marks omitted); see also Pepaj v. Mukasey, 509 F.3d 725, 727 (6th Cir. 2007) (“An alien who fails to comply with Lozada's requirements forfeits her ineffective-assistance-of-counsel claim.”). The Fifth Circuit also requires compliance with Matter of Lozada. See Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012) (rejecting the argument that the court “should apply Lozada flexibly”).

    Other courts have adopted or indicated an approach under which full compliance may be excused in certain limited circumstances. In Barry v. Gonzales, 445 F.3d 741 (4th Cir. 2006), the court explained:

    [A]lthough Lozada provides a useful framework for assessing ineffective assistance claims, an alien's failure to satisfy all three requirements does not preclude appellate court review in every case. We will reach the merits of an ineffective assistance of counsel claim where the alien substantially complies with the Lozada requirements, such that the BIA could have ascertained that the claim was not frivolous and otherwise asserted to delay deportation. However, an alien who fails to satisfy any of the three Lozada requirements will rarely, if ever, be in substantial compliance.

    Id. at 746; cf. Dakane, 399 F.3d at 1274 (requiring “substantial, if not exact, compliance with the procedural requirements of Lozada”); Gbaya v. U.S. Att'y Gen., 342 F.3d 1219, 1222 & n. 2 (11th Cir. 2003) (stating that, given that the individual who filed the motion “failed to comply with at least two out of three Lozada requirements, [he] would not be in substantial compliance with Lozada,id. at 1222 n.2, but not deciding “whether the BIA may enforce strict compliance with Lozada or must also accept substantial compliance,” id. at 1222).

    However, a few courts of appeals have gone further, excusing a lack of compliance in a greater variety of situations. Such courts have warned of the “inherent dangers . . . in applying a strict, formulaic interpretation of Lozada.Rranci v. Att'y Gen., 540 F.3d 165, 173 (3d Cir. 2008) (ellipsis in original) (internal quotation marks omitted); see also Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007) (“As to compliance with Lozada in relation to claims of ineffective assistance of counsel, we have not required a slavish adherence to the requirements, holding only that substantial compliance is necessary.”). These courts of appeals have differed on what circumstances excuse the Matter of Lozada requirements, but have generally held that there must be a rational reason for excusing failure to comply with one or more of the requirements. For example, both the Ninth and Second Circuits have noted that the Matter of Lozada requirements should not be rigidly applied where their purpose is fully served by other means. See, e.g., Morales Apolinar, 514 F.3d at 896; Piranej v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008) (remanding to the Board because, although the individual filing the motion failed to submit an affidavit outlining his agreement with his prior counsel, a general retainer agreement may have satisfied the Matter of Lozada requirements).

    The Ninth Circuit has found that, in some circumstances, the individual filing the motion does not need to comply with any of the requirements in Matter of Lozada. See, e.g., Castillo-Perez v. INS, 212 F.3d 518, 525-27 (9th Cir. 2000) (finding that there is no need to comply with Matter of Lozada where the record was undisputed that counsel failed, without any reason, to apply in a timely manner for relief for which the client was prima facie eligible while telling the client that he had filed for such relief); Escobar-Grijalva, 206 F.3d at 1335 (finding that there is no need to comply with Matter of Lozada where the record establishes on its face ineffective assistance of counsel). In Tamang, 598 F.3d at 1090, the Ninth Circuit distinguished prior cases in which “strict compliance with Lozada was not required because, under the circumstances of those cases, the ineffectiveness of counsel was plain on its face.” The court found that, in Tamang's case, “without Tamang's compliance with the Lozada elements, . . . it is impossible to determine whether [his] ineffective assistance of counsel claim has merit.” Id. Accordingly, the law with regard to compliance with the Matter of Lozada requirements varies significantly among the circuits.

    The proposed rule would provide adjudicators with the discretion, committed exclusively to EOIR, to excuse noncompliance with the filing requirements in § 1003.48(b)(1)-(3) for compelling reasons in various limited circumstances. Collectively, the filing requirements at § 1003.48(b)(1)-(3) are designed to ensure that adjudicators have access to crucial information to help them determine whether an individual was subject to ineffective assistance of counsel and suffered prejudice. However, the Department recognizes that there are limited situations in which an individual is unable to comply with a filing requirement but can still demonstrate that he or she was subject to ineffective assistance of counsel and suffered prejudice as a result, such that it would be appropriate to grant his or her motion.

    As noted above, § 1003.48(b)(1)(i) would provide that an individual filing a motion must submit an affidavit, or a written statement executed under the penalty of perjury as provided in 28 U.S.C. 1746, setting forth in detail the agreement that was entered into with respect to the actions to be taken by counsel and what representations counsel did or did not make in this regard. If the individual submits a written statement, § 1003.48(b)(1)(i) would permit the adjudicator, in an exercise of discretion committed exclusively to EOIR, to excuse the requirement that the written statement be executed under the penalty of perjury if there are compelling reasons why the written statement was not so executed and the motion is accompanied by certain other evidence. For example, if the individual is unrepresented and speaks little English, and submits a written statement that does not fully comply with the technical requirements of 28 U.S.C. 1746 for a document to be under the penalty of perjury, it may be appropriate for the adjudicator, in the exercise of discretion, to excuse for compelling reasons the requirement that the written statement be executed under the penalty of perjury. The Department expects that the waiver issue would arise almost exclusively in cases where the individual is unrepresented and is not familiar with the requirement to submit a written statement under the penalty of perjury, inasmuch as attorneys are familiar with requirements for the submission of affidavits and written statements under the penalty of perjury.

    A waiver of the requirement that a written statement be executed under the penalty of perjury would be inappropriate in the absence of other evidence independently establishing that the individual was subject to ineffective assistance of counsel and suffered prejudice as a result. This approach is consistent with the general rule that assertions in a written statement that are not under the penalty of perjury would be entitled to little or no evidentiary weight. Cf. Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) (stating that “statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight”).

    The Department seeks comments from the public on this provision. First, the Department seeks comment on whether an individual should be required, without exception, to submit an affidavit or a written statement executed under the penalty of perjury, given that assertions in documents not under the penalty of perjury are generally given little or no evidentiary weight. If an exception should exist, the Department seeks comments on whether this exception should be formulated differently. For example, the Department has considered providing that the requirement that the written statement be executed under penalty of perjury could be excused if there is good cause to do so, or if exceptional circumstances are present. The Department seeks comments on whether either of these standards is more appropriate than the current proposed “compelling reasons” standard.

    Similarly, the remaining requirements in proposed § 1003.48(b)(1)(ii)-(3), i.e., submitting any representation agreement with counsel, providing notice to prior counsel, and filing a complaint with the appropriate disciplinary authorities, could be excused in limited instances for compelling reasons. An individual filing a motion would have the burden of establishing compelling reasons for excusing one of these requirements. A simple, unsupported, or blanket assertion of a difficulty or situation that inhibited compliance would not, on its own, suffice. Rather, the individual would have to explain the circumstances preventing his or her compliance, providing sufficient details and supporting documentation when appropriate. He or she should also provide other information to support his or her claim, such as explaining why the failure to comply could not or need not be remedied or producing alternative evidence. Ultimately, as each case would involve its own unique circumstances, the immigration judge and the Board would be in the best position to determine whether a filing requirement should be excused in a given case and whether the case warrants reopening in the exercise of discretion despite lack of compliance with regulatory requirements.

    With respect to the requirement in § 1003.48(b)(1)(ii) that an individual filing a motion submit any applicable representation agreement with prior counsel, such an agreement is the best evidence of the nature, scope, or substance of the representation. However, if an individual filing a motion can establish compelling reasons for failing to submit such an agreement, then § 1003.48(b)(1)(ii) would permit the immigration judge or the Board, in the exercise of discretion committed exclusively to EOIR, to excuse this failure if the individual filing the motion submits other reasonably available evidence regarding his or her agreement with prior counsel.

    With respect to the requirement in § 1003.48(b)(2) that an individual filing a motion notify prior counsel, the Department notes that State bar associations generally make their members' contact information publicly available. Further, the requirement to notify prior counsel applies even if a long period of time has passed since a person last had contact with the counsel. However, there are limited instances in which an individual filing a motion may be able to establish compelling reasons why he or she was unable to notify prior counsel. Examples may include instances where the prior counsel is incarcerated or has moved to a foreign country, or where the prior counsel is an individual the movant reasonably but erroneously believed to be an attorney or accredited representative and, despite diligent efforts, he or she cannot obtain prior counsel's contact information.

    With respect to the requirement in § 1003.48(b)(3) that an individual filing a motion file a complaint with the appropriate disciplinary authorities, this standard is informed by the fact that the filing of a disciplinary complaint is “a relatively small inconvenience for an alien who asks that he or she be given a new hearing in a system that is already stretched in terms of its adjudicatory resources.” Matter of Rivera, 21 I&N Dec. at 605. However, there are limited instances where an individual filing a motion may be able to establish compelling reasons for failing to file such a complaint. An example of such reasons may be the death of the counsel who allegedly provided the ineffective assistance. The Department notes that filing the complaint with the incorrect disciplinary authorities would not, on its own, excuse noncompliance with the filing requirement. If the individual files his or her complaint with the incorrect disciplinary authorities, he or she would have to re-file the complaint with the correct disciplinary authorities. The Department further notes that the fact that counsel has been disciplined, suspended from the practice of law, or disbarred would not, on its own, excuse an individual from filing the required disciplinary complaint. Even in the case of a disbarred attorney, complaints filed after disbarment may be relevant. In the majority of States, a disbarred attorney may seek readmission to the bar after a certain period of time. As such, in considering whether a disbarred attorney merits readmission, the licensing authority may consider complaints filed after disbarment.

    It is important to consider the context for ineffective assistance of counsel claims under this rulemaking. These claims will typically arise after a final order has been entered in the case, and the proceedings have ended. The Department believes that the standards for excusing noncompliance with the filing requirements under § 1003.48(b)(1)-(3) must be carefully applied. In this regard, the adjudicator applying these standards should keep in mind the strong public and governmental interests in the expeditiousness and finality of proceedings. See Abudu, 485 U.S. at 107 (explaining that motions to reopen are disfavored because “[t]here is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”). These interests dictate that a § 1003.48 filing requirement be excused sparingly and only in relatively few circumstances. The Department believes that the exceptions to the proposed rule's filing requirements are appropriately narrow, and that the requirements will accordingly be excused only rarely.

    E. Standard in Proposed § 1003.48 for Evaluating Prejudice 9

    The proposed rule would provide that an individual who files a motion to reopen based upon a claim of ineffective assistance of counsel must establish that he or she was prejudiced by counsel's conduct. The Board and the courts of appeals have uniformly recognized that prejudice must be established in order to reopen removal, deportation, or exclusion proceedings based on a claim of ineffective assistance of counsel. See, e.g., Matter of Lozada, 19 I&N Dec. at 638; Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009); Jiang, 522 F.3d at 270; Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). The Board, however, has not established a standard for prejudice, and the courts of appeals, as set forth below, have provided varying standards.

    9 The prejudice standard for motions to reopen in absentia proceedings based upon a claim of ineffective assistance of counsel is covered in section G discussed below.

    This rule would set forth a single uniform standard for prejudice to be applied nationwide in ineffective assistance of counsel cases. This would ensure that individuals in similar situations would not be subject to disparate results based solely on the fact that their cases arose in different Federal jurisdictions. See generally Matter of Cerna, 20 I&N Dec. 399, 408 (BIA 1991) (explaining why immigration laws, to the “extent possible . . . should be applied in a uniform manner nationwide”), superseded by regulation as stated in Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir. 2013); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004) (noting the “strong interest in national uniformity in the administration of immigration laws”); Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091 (7th Cir. 1994) (“National uniformity in the immigration and naturalization laws is paramount: Rarely is the vision of a unitary nation so pronounced as in the laws that determine who may cross our national borders and who may become a citizen.”).

    As already noted, the lack of uniformity among the circuits is plain. The Sixth Circuit applies a very strict standard for evaluating prejudice in ineffective assistance of counsel immigration cases. See, e.g., Sako, 434 F.3d at 864 (holding that an individual “must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States”).

    Several circuits apply a standard similar to that established by the Supreme Court in Strickland for ineffective assistance of counsel claims arising under the Sixth Amendment in criminal cases, which is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. These include the Third and Eleventh Circuits. See Rranci, 540 F.3d at 175-76 (“a reasonable likelihood that the result would have been different if the error[s] . . . had not occurred”) (brackets and ellipsis in original) (internal quotation marks omitted); Dakane, 399 F.3d at 1274 (“a reasonable probability that but for the attorney's error, the outcome of the proceedings would have been different”).10

    10 The Eighth Circuit also used a similar standard before it found that there was no constitutionally-based right to effective counsel in removal proceedings. See Obleshchenko, 392 F.3d at 972; see also Rafiyev, 536 F.3d at 861 (concluding that there is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding). The Tenth Circuit has also employed this standard. See, e.g., Delariva v. Holder, 312 F. App'x 130, 132, 2009 WL 361373 (10th Cir. 2009) (unpublished) (citing United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc)).

    At the other end of the spectrum, the Ninth Circuit deems the prejudice requirement satisfied so long as an individual can show “plausible grounds for relief” on the underlying claim. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011) (stating that “to show `plausible grounds' for relief, an alien must show that, in light of the factors relevant to the form of relief being sought, and based on the `unique circumstances of [the alien's] own case,' it was plausible (not merely conceivable) that the [immigration judge] would have exercised his discretion in the alien's favor”) (first brackets in original) (quoting United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th Cir. 1999)); Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005).

    The Department has determined that using a prejudice standard modeled after Strickland would strike a proper balance between providing individuals with a reasonable opportunity to reopen proceedings based upon a meritorious ineffective assistance claim and safeguarding the finality of immigration proceedings. The proposed regulations would therefore provide that to succeed on an ineffective assistance of counsel claim, an individual needs to establish that “there is a reasonable probability that, but for counsel's ineffective assistance, the result of the proceeding would have been different.” 11 As mentioned above, several circuits have adopted this standard, which presents a middle ground among the standards adopted by the various circuits. Furthermore, as the Supreme Court has deemed a “reasonable probability” standard sufficient in the context of Sixth Amendment criminal cases, the Department considers the standard to be more than sufficient to use in the context of civil, administrative immigration proceedings.

    11 This proposed rule would not provide that certain circumstances require a finding of per se prejudice. See generally Matter of Assaad, 23 I&N Dec. at 562 (rejecting the argument that the Board should apply a per se standard of prejudice to a counsel's failure to file an appeal in immigration proceedings); cf. Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004) (applying a rebuttable presumption of prejudice where counsel's error deprived an individual of any appeal in immigration proceedings). Rather, each case would rest on its own particulars, with the recognition that some conduct will more typically indicate prejudice, but that the individual filing the motion always carries the burden to establish that prejudice does in fact exist. As discussed in section G, however, an individual would not be required to establish prejudice in order to reopen in absentia proceedings.

    Proposed § 1003.48(a)(3) would provide that eligibility for relief arising after proceedings have concluded ordinarily has no bearing on the prejudice determination. Cf. Strickland, 466 U.S. at 696 (stating that “a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors”). There are exceptions to this general statement, however. For example, where a Form I-130, Petition for Alien Relative, has been filed with United States Citizenship and Immigration Services (USCIS) at DHS on behalf of an individual in removal proceedings, it may, in some instances, constitute ineffective assistance if counsel fails to request that the immigration judge continue the proceedings to await the adjudication of the petition. Cf. Matter of Hashmi, 24 I&N Dec. 785, 787-94 (BIA 2009) (articulating the factors for an immigration judge to consider in determining whether to continue removal proceedings pending USCIS's adjudication of an immigrant visa petition). If counsel acted ineffectively by failing to request a continuance, and the immigration judge ordered the individual removed but USCIS subsequently granted the petition, it would be appropriate to consider the individual's eligibility for adjustment of status in deciding whether he or she was prejudiced. That is, had the proceedings been continued, the result of the proceedings may have been different as the individual may have been able to apply for adjustment of status while they were ongoing. The Department seeks the public's comments on this issue, including on whether the reference to eligibility for relief arising after proceedings have concluded should be omitted from the final rule given the exception noted above.

    The exact type of evidence that would suffice to establish a “reasonable probability” would be dependent upon the particular circumstances of a given case. The individual filing the motion would bear the burden, however, to show a reasonable probability that, but for counsel's ineffective assistance, the result of the proceeding would have been different. The individual filing the motion should submit any necessary evidence to establish prejudice, including affidavits or sworn statements from witnesses who were not previously called to testify or whose testimony was adversely impacted by the ineffectiveness of counsel, copies of vital documents that were not submitted in a timely manner, persuasive legal arguments that should have been included in missing or deficient briefs, missing applications for relief with supporting evidence, and any other evidence that serves to undermine the decision-maker's confidence in the outcome of the case. See generally Strickland, 466 U.S. at 694 (describing the manner in which the effect of alleged ineffective assistance of counsel on the reliability of a previous proceeding should be analyzed).

    The Department notes that proposed § 1003.48 would provide two deviations from the “reasonable probability” standard. First, the rule would provide at § 1003.48(c)(3) that an individual is prejudiced by counsel's failure to file a petition for review with a Federal circuit court of appeals if he or she had “plausible grounds for relief” before the court. To establish that he or she was so prejudiced, the individual filing the motion must explain, with reasonable specificity, the ground or grounds for the petition. Neither the adjudicators nor opposing counsel should be expected to speculate as to what issues the individuals would have raised on appeal. The requirement that the ground or grounds for the petition for review must be explained “with reasonable specificity” would allow adjudicators to consider the filing party's sophistication in deciding whether prejudice has been established. In the Department's view, while some unrepresented individuals may explain the ground or grounds for appeal in general terms, attorneys and accredited representatives should explain, in detail, the factual and legal bases for appeal.

    As discussed in section C of this preamble, for a motion based on counsel's failure to file a petition for review to be granted, the individual filing the motion would first have to establish that his or her prior counsel's conduct was ineffective within the scope of the counsel's representation. If the individual does not do so, the Board could deny the motion without addressing the issue of prejudice.

    The second deviation from the “reasonable probability” standard is with respect to motions to reopen in absentia proceedings. As discussed in section G of this preamble, the rule would provide that an individual filing a motion is not required to establish prejudice in order to reopen in absentia proceedings.

    F. Equitable Tolling and the Due Diligence Standard in Proposed § 1003.48

    As discussed above, motions to reopen based upon a claim of ineffective assistance of counsel must be filed in accordance with the general requirements for motions provided in section 240(c)(7) of the Act and §§ 1003.2 and 1003.23 of the regulations. With a few exceptions noted in the regulations, motions to reopen must be filed within either 90 days or 180 days of the date of entry of a final administrative order of removal or deportation. In general, a motion to reopen must be filed within 90 days of the date of entry of a final order A motion to reopen proceedings to rescind an order of removal or deportation entered in absentia must be filed within 180 days of the order, however, if the motion alleges that the failure to appear was because of exceptional circumstances.

    Every circuit court of appeals to have addressed the issue has recognized that equitable tolling may apply to untimely motions to reopen in some instances.12 See, e.g., Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013); Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1362-65 (11th Cir. 2013) (en banc) (per curiam); Barry, 524 F.3d at 724; Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008); Zhao v. INS, 452 F.3d 154, 156-57 (2d Cir. 2006); Mahmood v. Gonzales, 427 F.3d 248, 251 (3d Cir. 2005); Hernandez-Moran v. Gonzales, 408 F.3d 496, 499-500 (8th Cir. 2005); Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176, 1187-93 (9th Cir. 2001) (en banc). However, as some of these courts have noted, “[e]quitable tolling is an extraordinary remedy which should be extended only sparingly[.]” Mahmood, 427 F.3d at 253 (first brackets in original) (internal quotation marks omitted); see also Kuusk, 732 F.3d at 306 (adhering “to the general principle that equitable tolling will be granted `only sparingly,' not in `a garden variety claim of excusable neglect' ”) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)); Hernandez-Moran, 408 F.3d at 499-500 (“ `[E]quitable tolling is granted sparingly. Extraordinary circumstances far beyond the litigant's control must have prevented timely filing.' ”) (brackets in original) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).

    12 As noted above, equitable tolling refers to “[t]he doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.” Black's Law Dictionary 579 (8th ed. 2004).

    The First Circuit has not yet decided the applicability of equitable tolling to the filing deadlines for motions to reopen based upon ineffective assistance of counsel, but has assumed without deciding that tolling is available. See Neves, 613 F.3d at 36 (stating that “[w]e assume arguendo, but do not decide, that the time and number limits on motions to reopen are subject to equitable tolling”). The Fifth Circuit similarly has not decided this question. See Reyes-Bonilla v. Lynch, 616 F. App'x 193, 194 (5th Cir. 2015) (unpublished) (noting that “even if the immigration statutes are subject to equitable tolling, Reyes-Bonilla has failed to show that such tolling would apply”).

    In those circuits that have held that equitable tolling of the filing deadlines applies, the courts have differed on the precise standard for due diligence. The Board has not adopted a uniform approach to due diligence, instead applying the law of the circuit in which the motion was filed. See, e.g., Yuan Gao, 519 F.3d at 379. For example, the Ninth Circuit has found that the filing deadlines are equitably tolled “until the petitioner `definitively learns' of counsel's fraud,” although the petitioner must of course demonstrate that he or she exercised due diligence prior to this point as well. Singh, 491 F.3d at 1096 (citing Albillo-DeLeon v. Gonzales, 410 F.3d 1090, 1100 (9th Cir. 2005)); see also Ghahremani v. Gonzales, 498 F.3d 993, 999-1000 (9th Cir. 2007). The Second Circuit's due diligence analysis focuses on when the ineffective assistance “[was], or should have been, discovered by a reasonable person in the situation.” Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). The Seventh Circuit has stated that “`[e]quitable tolling requires a court to consider whether a reasonable person in the plaintiff's position would have been aware of the possibility that he had suffered' an injury.” Patel, 442 F.3d at 1016 (quoting Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th Cir. 2005) (emphasis in original)). The Seventh Circuit has also held that when an individual learns of the ineffective assistance before the expiration of the statutory filing period and fails to explain why he or she was unable to file the motion within the statutory filing period, equitable tolling is not available and will not “reset the clock.” Yuan Gao, 519 F.3d at 379 (finding that the individual filing the motion had “failed to point to any circumstances that made this the abnormal case in which a diligent attempt to comply with the 90-day deadline would have failed, in which event an appeal to equitable tolling would lie”). The Ninth Circuit, by contrast, has held that equitable tolling may in fact have the effect of resetting the statute of limitations period. See Socop-Gonzalez, 272 F.3d at 1196 (“[W]e need only ask whether Socop filed within the limitations period after tolling is taken into account.”).

    With respect to the due diligence standard, some courts have emphasized that the individual filing the motion has a duty to investigate whether his or her counsel is ineffective. See, e.g., Rashid v. Mukasey, 533 F.3d 127, 132-133 n.3 (2d Cir. 2008) (“[A]n alien who is unfamiliar with the technicalities of immigration law can, under certain circumstances, be expected to comprehend that he has received ineffective assistance without being explicitly told so by an attorney . . . . Even someone not schooled in the technicalities of the law `should have' recognized, under the[ ] circumstances [of this case], that his attorney was ineffective.”); see also Singh, 491 F.3d at 1096-97 (finding that the individual filing the motion was not eligible for equitable tolling because he failed to investigate whether his attorney was ineffective).

    There are also other considerations. Some circuits, such as the Second Circuit, have found that due diligence is required in both discovering the ineffectiveness and taking appropriate action upon discovery. See, e.g., Rashid, 533 F.3d at 132 (noting that “an alien is required to exercise due diligence both before and after he has or should have discovered ineffective assistance of counsel”) (emphasis in original); see also Wang v. Board of Immigration Appeals, 508 F.3d 710, 715 (2d Cir. 2007) (noting that an individual filing a motion “bears the burden of proving that he has exercised due diligence in the period between discovering the ineffectiveness of his representation and filing the motion to reopen”). Other courts have similarly required that the motion to reopen must be filed within a reasonable time of discovering the ineffective assistance. See, e.g., Tapia-Martinez v. Gonzales, 482 F.3d 417, 423-24 (6th Cir. 2007) (finding that the individual filing the motion did not exercise due diligence because she filed the motion to reopen more than fifteen months after discovering her prior counsel's ineffectiveness); see also Pafe v. Holder, 615 F.3d 967, 969 (8th Cir. 2010) (finding that, despite existence of fraud and deception by prior attorneys, the Board did not abuse its discretion in denying a motion to reopen to rescind in absentia removal proceedings where the individual waited nearly six years to file the motion); Jobe v. INS, 238 F.3d 96, 100-01 (1st Cir. 2001) (en banc) (declining to find due diligence where an individual waited to file a motion to reopen to rescind an in absentia order more than half a year after he “learned that an [immigration judge] had taken some action on his asylum application and was advised to consult an attorney immediately”).

    The Department has determined that it may be appropriate in certain circumstances for an immigration judge or the Board to equitably toll the filing deadlines in section 240(c)(7) of the Act and §§ 1003.2 and 1003.23 of the regulations where the basis of the motion is a claim of ineffective assistance of counsel.13 Accordingly, the proposed rule would provide, at § 1003.48(d), that these filing deadlines shall be tolled if a motion to reopen is based upon a claim of ineffective assistance of counsel, the ineffective assistance prevented the timely filing of the motion, and the individual filing the motion exercised due diligence in discovering the ineffective assistance. Specifically, the proposed rule would provide that, if an individual exercised due diligence in discovering the ineffective assistance, he or she has 90 days after discovering the ineffective assistance to file the motion to reopen. This 90-day filing period would apply to all motions to reopen based on ineffective assistance of counsel, including motions to reopen to rescind an in absentia order based on exceptional circumstances arising from a claim of ineffective assistance of counsel. The proposed rule would provide that an individual exercises due diligence if he or she discovers the ineffective assistance within the time it should have been discovered by a reasonable person in his or her position. The Department notes that equitable tolling would not shorten the filing deadlines set out in §§ 1003.2 and 1003.23.

    13 The Department notes that there are other regulations governing special motions to reopen for suspension of deportation and cancellation of removal pursuant to section 203(c) of the Nicaraguan Adjustment and Central American Relief Act (NACARA) (Pub. L. 105-100, tit. II) and section 1505(c) of the LIFE Act Amendments of 2000 (Pub. L. 106-554, tit. XV). See 8 CFR 1003.43. In addition, there are regulations governing special motions to seek relief under former section 212(c) of the Act. See 8 CFR 1003.44. The Department notes that there may be circuit law addressing the applicability of equitable tolling to the filing deadlines of these special motions to reopen. See, e.g., Albillo-De Leon, 410 F.3d at 1098 (finding that section 203(c) of NACARA is subject to equitable tolling); Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007) (declining, for lack of due diligence, to equitably toll the deadline for filing a motion to reopen to apply for relief under former section 212(c) of the Act). This proposed rule would not address whether ineffective assistance of counsel may be a basis to toll the filing deadlines of these special motions. The Department welcomes comment from the public regarding whether ineffective assistance of counsel should be a basis for tolling the filing deadlines of these special motions and whether the proposed rule should be expanded to cover those situations.

    The Department recognizes that some motions to rescind in absentia orders and reopen proceedings are not subject to time limitations. See, e.g., Matter of Bulnes, 25 I&N Dec. 57, 59 (BIA 2009) (motions to reopen to rescind in absentia orders where the individual demonstrates he or she did not receive notice); Matter of Cruz-Garcia, 22 I&N Dec. 1155, 1157-59 (BIA 1999) (deportation proceedings under former section 242(b) of the Act); Matter of N-B-, 22 I&N Dec. 590, 591-93 (BIA 1999) (exclusion proceedings). We are soliciting comments on whether the requirements of this new rule should be applied to motions to reopen filed in such cases on the basis of a claim of ineffective assistance of counsel.

    As discussed above, there is variation among the courts of appeals regarding the exact standard for determining that an individual exercised due diligence in discovering ineffective assistance of counsel. While eligibility for equitable tolling will depend upon the particulars of the case, the Department seeks to promote uniformity in the due diligence standard. As such, the Department considered various standards of the courts of appeals for evaluating due diligence. For example, the Department considered standards requiring the immigration judge or the Board to determine when the individual filing the motion, acting with due diligence, definitively learned of the ineffective assistance of counsel,14 or to evaluate when a reasonable person in that individual's position would have been aware of the possibility that he or she had been prejudiced by counsel's conduct.15 After review of the case law discussed above, the Department is proposing to include a standard for evaluating due diligence that would require the immigration judge or the Board to determine when the ineffective assistance should have been discovered by a reasonable person in the individual's position. This standard is consistent with the Second Circuit's case law discussed above,16 as well as the “discovery rule” used in certain non-immigration cases to determine when a claim has accrued such that the statute of limitations begins to run.17

    14See Singh, 491 F.3d at 1096.

    15See Patel, 442 F.3d at 1016.

    16See Iavorski, 232 F.3d at 134.

    17 Depending upon the type of case, jurisdiction, and applicable exceptions, the “discovery rule” permits an individual to file a suit in a civil case within a certain period of time after the injury is discovered, or reasonably should have been discovered. See, e.g., Black's Law Dictionary 499 (8th ed. 2004) (defining the discovery rule as “[t]he rule that a limitations period does not begin to run until the plaintiff discovers (or reasonably should have discovered) the injury giving rise to the claim”).

    The evidence required for demonstrating due diligence would vary from case to case. However, to establish due diligence, an individual would ordinarily have to present evidence that he or she timely inquired about his or her immigration status and the progress of his or her case.

    The Department welcomes comments from the public on the appropriateness of including the remedy of equitable tolling and the proposed standard for assessing due diligence in the rule.

    G. Effect of Proposed § 1003.48 on Motions To Reopen and To Rescind an Order of Removal, Deportation, or Exclusion Entered in Absentia

    The proposed rule would add a cross-reference to new § 1003.48 in the regulations governing motions to reopen proceedings and rescind orders of removal, deportation, or exclusion entered in absentia. An order of removal entered in absentia in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded upon a motion to reopen filed within 180 days after the date of the order, if the individual filing the motion demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act. An order of exclusion entered in absentia may be rescinded upon a motion to reopen filed at any time if the individual demonstrates reasonable cause for his or her failure to appear. The standard for rescinding orders of deportation entered in absentia varies. Orders subject to section 240(b)(5) of the Act may be rescinded upon a motion filed within 180 days of the order if the individual demonstrates that the failure to appear was because of exceptional circumstances beyond his or her control.18 Orders subject to a provision of the INA in effect before June 13, 1992, may be rescinded upon a motion filed at any time if the individual demonstrates reasonable cause for his or her failure to appear. See Matter of Cruz-Garcia, 22 I&N Dec. at 1157-59.

    18 In addition, removal and deportation orders entered in absentia may be rescinded upon a motion filed at any time when the individual filing the motion demonstrates that he or she did not receive the requisite notice, or that he or she was in Federal or State custody and the failure to appear was through no fault of the individual. See INA 240(b)(5)(C)(ii).

    As has been established in Board precedent, this rule would provide that an individual may establish exceptional circumstances or reasonable cause, whichever is applicable, by demonstrating that the failure to appear was due to ineffective assistance of counsel. See Matter of Grijalva, 21 I&N Dec. 472, 473-74 (BIA 1996); see also Matter of Rivera, 21 I&N Dec. at 602. In establishing exceptional circumstances or reasonable cause based upon ineffective assistance of counsel, an individual would generally have to comply with the requirements for motions provided in new § 1003.48. However, consistent with the Board's longstanding practice, that individual would not be required to establish that he or she was prejudiced. See Matter of Grijalva, 21 I&N Dec. at 473 n.2; see also Matter of Rivera, 21 I&N Dec. at 603 n.1.

    As discussed above, the rule would also permit equitable tolling of the time limitations on filing of motions to reopen and rescind an in absentia order. Provided that the individual establishes that he or she exercised due diligence in discovering his or her counsel's ineffectiveness, the individual would have 90 days from when the ineffective assistance was discovered to file a motion to reopen and rescind an in absentia order.19 The Department notes that equitable tolling does not shorten the filing deadlines set out in §§ 1003.2 and 1003.23.

    19But see supra note 13.

    IV. Ineffective Assistance of Counsel and the Asylum One-Year Filing Deadline

    The Department and DHS have independent roles and authorities with respect to the adjudication of applications for asylum under section 208 of the Act. As a general matter, DHS asylum officers have authority to adjudicate affirmative asylum applications filed with USCIS, while the immigration judges in EOIR have authority to adjudicate the asylum applications of individuals who are the subject of proceedings before EOIR. Under section 208(a)(2)(D) of the Act, an application for asylum may be considered despite the fact that it was not filed within one year of the applicant's arrival in the United States where he or she establishes “extraordinary circumstances” relating to the delay in filing of the application. The regulations of EOIR and DHS provide a non-exclusive list of situations that could fall within the extraordinary circumstances definition and specifically provide that a claim of ineffective assistance of counsel may constitute extraordinary circumstances excusing an applicant's failure to timely file an application for asylum. See 8 CFR 208.4(a)(5)(iii), 1208.4(a)(5)(iii).

    This rule proposes to amend the EOIR asylum regulations at 8 CFR 1208.4(a)(5) to incorporate some of the language used in the motion to reopen provisions in proposed § 1003.48 for extraordinary circumstances claims based upon a claim of ineffective assistance of counsel. The provisions of the rule addressing the one-year deadline for filing for asylum will apply upon the effective date of the final rule.

    The Department notes that this rule proposes to amend only the EOIR asylum regulations in 8 CFR 1208.4.

    V. Regulatory Requirements A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The rule will not regulate “small entities,” as that term is defined in 5 U.S.C. 601(6).

    B. 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.

    C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

    D. Executive Orders 12866 and 13563

    The proposed rule is considered by the Department to be a “significant regulatory action” under section 3(f)(4) of Executive Order 12866. Accordingly, the regulation has been submitted to the Office of Management and Budget (OMB) for review. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

    The Department believes that this proposed rule would provide significant net benefits relating to EOIR proceedings. See Executive Order 12866(b)(6) (stating that “[e]ach agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs”). The proposed rule would help ensure the fairness and integrity of these proceedings by setting out a standard set of requirements for reopening proceedings, allowing for reopening where an individual was genuinely subjected to ineffective assistance of counsel and suffered prejudice as a result. The Department is unaware of any monetary costs on public entities that the rule would impose. Further, the Department does not believe that, broadly speaking, the proposed rule could be said to burden the parties in EOIR proceedings, as the rule simply changes an adjudicatory standard used in those proceedings, generally striking a middle ground between the circuit courts' approaches.20

    20 For example, as noted above, the proposed rule's standard for establishing prejudice would be more lenient than the Sixth Circuit's current standard but stricter than the Ninth Circuit's. The proposed rule would provide at § 1003.48(a)(3) that, for an individual to establish that he or she was prejudiced by counsel's ineffective assistance, the individual must show that “there is a reasonable probability that, but for counsel's ineffective assistance, the result of the proceeding would have been different.” Currently, the Sixth Circuit requires an individual to “establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States.” Sako, 434 F.3d at 864. However, the Ninth Circuit simply requires an individual to show that he or she “had plausible grounds for . . . relief.” Barajas-Alvarado, 655 F.3d at 1089 (quotation omitted).

    E. 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    F. Executive Order 12988: Civil Justice Reform

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

    G. Paperwork Reduction Act

    This rule does not propose new or revisions to existing “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

    List of Subjects 8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration.

    8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, for the reasons set forth in the preamble, the Attorney General is proposing to amend title 8, chapter V of the Code of Federal Regulations as follows:

    PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority for part 1003 continues to read as follows: Authority:

    5 U.S.C. 301, 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953, Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

    2. Section 1003.23 is amended by adding a new paragraph (b)(4)(v), to read as follows:
    § 1003.23 Reopening or reconsideration before the Immigration Court.

    (b) * * *

    (4) * * *

    (v) Motions to reopen and rescind an in absentia order based upon a claim of ineffective assistance of counsel. A motion to reopen proceedings and rescind an in absentia order of removal, deportation, or exclusion is subject to the requirements for such motions under paragraph (b)(4)(ii) or (b)(4)(iii)(A) of this section and § 1003.48. For a motion to reopen proceedings and rescind an in absentia order of removal, deportation, or exclusion, the alien may establish exceptional circumstances or other appropriate legal standards to reopen proceedings based upon a claim of ineffective assistance of counsel. The alien does not need to establish prejudice in order to reopen proceedings and rescind an order of removal, deportation, or exclusion entered in absentia based upon a claim of ineffective assistance of counsel. Deadlines for motions to reopen and rescind an in absentia order based upon a claim of ineffective assistance of counsel may be equitably tolled pursuant to § 1003.48(d). The term “counsel,” as used in this subsection, only applies to the conduct of an attorney or an accredited representative as defined in part 1292, or a person whom the alien reasonably but erroneously believed to be an attorney or an accredited representative and who was retained to represent the alien in proceedings.

    3. Add § 1003.48 to subpart A to read as follows:
    § 1003.48 Reopening based upon a claim of ineffective assistance of counsel.

    (a) Standard for adjudication. Except as provided in this section, a motion to reopen proceedings before the Board or an immigration judge based upon a claim of ineffective assistance of counsel will be adjudicated in accordance with section 240(c)(7) of the Act and the applicable regulations governing motions at §§ 1003.2 and 1003.23. The individual filing the motion must demonstrate that counsel's conduct was ineffective and prejudiced the individual.

    (1) Conduct covered. Except as provided in paragraph (c) of this section, this section covers conduct that occurred while removal, deportation, or exclusion proceedings were pending before the Board or an immigration judge. The term “counsel,” as used in this section, only applies to the conduct of:

    (i) An attorney or an accredited representative as defined in part 1292; or

    (ii) A person whom the individual filing the motion reasonably but erroneously believed to be an attorney or an accredited representative and who was retained to represent him or her in the proceedings before the Board or an immigration judge.

    (2) Standard for evaluating counsel's ineffectiveness. A counsel's conduct constitutes ineffective assistance of counsel if the conduct was unreasonable, based on the facts of the particular case, viewed as of the time of the conduct.

    (3) Standard for evaluating prejudice. Except as provided in paragraph (c)(3) of this section, in evaluating whether an individual has established that he or she was prejudiced by counsel's conduct, the Board or the immigration judge shall determine whether there is a reasonable probability that, but for counsel's ineffective assistance, the result of the proceeding would have been different. Eligibility for relief occurring after the conclusion of proceedings will ordinarily have no bearing on the determination of whether the individual was prejudiced during the course of proceedings.

    (b) Form, contents, and procedure for filing a motion to reopen based upon a claim of ineffective assistance of counsel. A motion to reopen under this section must be filed in accordance with section 240(c)(7) of the Act or other applicable statutory provisions, and the applicable regulations at §§ 1003.2 and 1003.23 governing motions to reopen. The motion must include the following items to support the claim of ineffective assistance of counsel:

    (1) Affidavit or written statement. (i) The individual filing the motion must, in every case, submit an affidavit, or a written statement executed under the penalty of perjury as provided in 28 U.S.C. 1746, setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken by counsel and what representations counsel did or did not make to the individual in this regard. If the individual submits a written statement not executed under the penalty of perjury, the Board or the immigration judge may, in an exercise of discretion committed exclusively to the agency, excuse the requirement that the written statement must be executed under the penalty of perjury, if:

    (A) There are compelling reasons why the written statement was not executed under the penalty of perjury; and

    (B) The motion is accompanied by other evidence independently establishing that the individual was subject to ineffective assistance of counsel and suffered prejudice as a result.

    (ii) In addition, the individual filing the motion must submit a copy of any applicable representation agreement in support of the affidavit or written statement. If no representation agreement is provided, the individual must explain its absence in the affidavit or written statement and provide any reasonably available evidence on the scope of the agreement and the reason for its absence. The Board or an immigration judge may, in an exercise of discretion committed exclusively to the agency, excuse failure to provide any applicable representation agreement in support of the affidavit or written statement if the individual establishes that there are compelling reasons for the failure to provide the representation agreement and he or she presents other reasonably available evidence regarding the agreement made with counsel.

    (2) Notice to counsel. The individual filing the motion must provide evidence that he or she informed counsel whose representation is claimed to have been ineffective of the allegations leveled against that counsel and that a motion to reopen alleging ineffective assistance of counsel will be filed on that basis. The individual must provide evidence of the date and manner in which he or she provided notice to prior counsel and include a copy of the correspondence sent to the prior counsel and the response from the prior counsel, if any, or state that no such response was received. The requirement that the individual provide a copy of any response from prior counsel continues until such time as a decision is rendered on the motion to reopen. The Board or an immigration judge may, in an exercise of discretion committed exclusively to the agency, excuse failure to provide the required notice if the individual establishes that there are compelling reasons why he or she was unable to notify the prior counsel.

    (3) Complaint filed with the appropriate disciplinary authorities. The individual filing the motion must file a complaint with the appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and provide a copy of that complaint and any correspondence from such authorities. The Board or an immigration judge may, in an exercise of discretion committed exclusively to the agency, excuse the failure to file a complaint if the individual establishes that there are compelling reasons why he or she was unable to notify the appropriate disciplinary authorities. The fact that counsel has already been disciplined, suspended from the practice of law, or disbarred does not, on its own, excuse the individual from filing the required disciplinary complaint. The appropriate disciplinary authorities are as follows:

    (i) With respect to attorneys in the United States: The licensing authority of a state, possession, territory, or Commonwealth of the United States, or of the District of Columbia that has licensed the attorney to practice law.

    (ii) With respect to accredited representatives: The EOIR disciplinary counsel pursuant to § 1003.104(a).

    (iii) With respect to a person whom the individual reasonably but erroneously believed to be an attorney or an accredited representative and who was retained to represent him or her in proceedings: The appropriate Federal, State, or local law enforcement agency with authority over matters relating to the unauthorized practice of law or immigration-related fraud.

    (4) Prejudice. Except as provided in § 1003.23(b)(4)(v), the individual filing the motion shall establish that he or she was prejudiced by counsel's conduct. The standard for prejudice is set forth in paragraph (a)(3) of this section, except as provided in paragraph (c)(3) of this section. The Board or an immigration judge shall not waive the requirement to establish prejudice.

    (c) Claims of ineffective assistance of counsel based upon conduct occurring after entry of a final order of removal, deportation, or exclusion. (1) Scope of review. After entry of a final order of removal, deportation, or exclusion, the Board has discretion pursuant to §§ 1003.2 and 1003.48 to reopen removal, deportation, or exclusion proceedings based upon counsel's failure to file a timely petition for review in the Federal court of appeals. Such discretion, however, shall not extend to other claims based upon counsel's conduct before another administrative or judicial body. Except as described in paragraph (c)(3) of this section, a motion to reopen based upon counsel's failure to file a timely petition for review in the Federal court of appeals must meet the requirements set forth in paragraph (b) of this section.

    (2) Establishing ineffective assistance. To establish that counsel provided ineffective assistance, an individual seeking to reopen removal, deportation, or exclusion proceedings based upon counsel's failure to file a timely petition for review in the Federal court of appeals must establish that counsel had agreed to file a petition for review but failed to do so. For the individual to meet this burden, he or she must submit a representation agreement making clear that the scope of counsel's representation included the filing of a petition for review, or must otherwise establish that the scope of the representation included the filing of a petition for review.

    (3) Establishing prejudice. An individual is prejudiced by counsel's failure to file a petition for review with a Federal circuit court of appeals if he or she had plausible ground for relief before the court. To establish that he or she was so prejudiced, the individual filing the motion must explain, with reasonable specificity, the ground or grounds for the petition.

    (d) Due diligence and equitable tolling. (1) The time limitations set forth in §§ 1003.2 and 1003.23 shall be tolled if:

    (i) The motion to reopen is based upon a claim of ineffective assistance of counsel;

    (ii) The individual filing the motion has established that he or she exercised due diligence in discovering the ineffective assistance of counsel; and

    (iii) The motion is filed within 90 days after the individual discovered the ineffective assistance of counsel.

    (2) In evaluating whether an individual has established that he or she has exercised due diligence, the standard is when the ineffective assistance should have been discovered by a reasonable person in the individual's position.

    (e) Applicability date. This section applies only to motions filed on or after [effective date of final rule].

    PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 4. The authority for part 1208 continues to read as follows: Authority:

    8 U.S.C. 1103, 1158, 1225, 1231, 1282.

    5. Section 1208.4 is amended by revising paragraphs (a)(5)(iii)(A), (B), and (C) and adding paragraph (a)(5)(iii)(D) to read as follows:
    § 1208.4 Filing the application.

    (a) * * *

    (5) * * *

    (iii) * * *

    (A) The applicant files an affidavit, or a written statement executed under the penalty of perjury as provided in 28 U.S.C. 1746, setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken by counsel and what representations counsel did or did not make to the applicant in this regard. If the applicant submits a written statement not executed under the penalty of perjury, the Board or the immigration judge may, in an exercise of discretion committed exclusively to the agency, excuse the requirement that the written statement must be executed under the penalty of perjury, if there are compelling reasons why the written statement was not executed under the penalty of perjury, and the applicant submits other evidence establishing that he or she was subject to ineffective assistance of counsel and suffered prejudice as a result. In addition, in all cases, the applicant must either submit a copy of any applicable representation agreement in support of the affidavit or written statement or explain its absence in the affidavit or written statement. Failure to provide any applicable representation agreement in support of the affidavit or written statement may be excused, in an exercise of discretion committed exclusively to the agency, if the applicant establishes that there are compelling reasons that he or she was unable to provide any representation agreement.

    (B) The applicant provides evidence that he or she informed counsel whose representation is claimed to have been ineffective of the allegations leveled against him or her. The applicant must provide evidence of the date and manner in which he or she provided notice to his or her prior counsel; and include a copy of the correspondence sent to the prior counsel and the response from the prior counsel, if any, or state that no such response was received. Failure to provide the required notice to counsel may be excused, in an exercise of discretion committed exclusively to the agency, if the applicant establishes that there are compelling reasons why he or she was unable to notify counsel.

    (C) The applicant files and provides a copy of the complaint filed with the appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and any correspondence from such authorities. Failure to provide the complaint may be excused, in an exercise of discretion committed exclusively to the agency, if the applicant establishes that there were compelling reasons why he or she was unable to notify the appropriate disciplinary authorities. The fact that counsel has already been disciplined, suspended from the practice of law, or disbarred does not, on its own, excuse the applicant from filing the required disciplinary complaint. The appropriate disciplinary authorities are as follows:

    (1) With respect to attorneys in the United States: The licensing authority of a State, possession, territory, or Commonwealth of the United States, or of the District of Columbia that has licensed the attorney to practice law.

    (2) With respect to accredited representatives: The EOIR disciplinary counsel pursuant to § 1003.104(a).

    (3) With respect to a person whom the applicant reasonably but erroneously believed to be an attorney or an accredited representative and who was retained to represent him or her in proceedings before the immigration courts and the Board: The appropriate Federal, State or local law enforcement agency with authority over matters relating to the unauthorized practice of law or immigration-related fraud.

    (D) The term “counsel,” as used in this paragraph (a)(5)(iii), only applies to the conduct of an attorney or an accredited representative as defined in part 1292 of this chapter, or a person whom the applicant reasonably but erroneously believed to be an attorney or an accredited representative and who was retained to represent him or her in proceedings before the immigration courts and the Board.

    Dated: July 19, 2016. Loretta Lynch, Attorney General.
    [FR Doc. 2016-17540 Filed 7-27-16; 8:45 am] BILLING CODE 4410-30-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8181; Directorate Identifier 2016-NM-002-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. This proposed AD was prompted by an evaluation by the design approval holder (DAH) indicating that the nose wheel well is subject to widespread fatigue damage (WFD). This proposed AD would require modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a surface high frequency eddy current inspection (HFEC) or an open hole HFEC inspection of the vertical beam outer chord and web for any cracking; and all applicable related investigative actions including repetitive inspections, and other specified and corrective actions. We are proposing this AD to detect and correct fatigue cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by September 12, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8181.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. 2016-8181; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. 2016-8181; Directorate Identifier 2016-NM-002-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    Fatigue damage can occur locally, in small areas or structural design details, or globally, in widespread areas. Multiple-site damage is widespread damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Widespread damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site damage and multiple-element damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane. This condition is known as widespread fatigue damage. It is associated with general degradation of large areas of structure with similar structural details and stress levels. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

    The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

    The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

    In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

    We received an evaluation by the DAH indicating that the nose wheel well is subject to WFD. This condition, if not corrected, could result in cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015. The service information describes procedures for modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a web surface HFEC and an open hole HFEC inspection of the vertical beam outer chord for any cracking; and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

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

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, specifies to contact the manufacturer for certain instructions, but this AD requires accomplishment of repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Explanation of Compliance Time

    The compliance time for the modification specified in this proposed AD for addressing WFD was established to ensure that discrepant structure is modified before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. We will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

    Costs of Compliance

    We estimate that this proposed AD affects 107 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Modification 408 work-hours × $85 per hour = $34,680 $15,743 $50,423 $5,395,261. Part 2 detailed inspection 140 work-hours × $85 per hour = $11,900 per inspection cycle 0 $11,900 per inspection cycle $1,273,300 per inspection cycle. Surface HFEC inspection 4 work-hours × $85 per hour = $340 per inspection cycle 0 $340 per inspection cycle Up to $36,380 per inspection cycle. Open hole HFEC inspection 4 work-hours × $85 per hour = $340 per inspection cycle 0 $340 per inspection cycle Up to $36,380 per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. 2016-8181; Directorate Identifier 2016-NM-002-AD. (a) Comments Due Date

    We must receive comments by September 12, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category, identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that the nose wheel well is subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Modification for Groups 1 and 4 Airplanes

    For groups 1 and 4 airplanes as identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, modify the nose wheel body structure, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (h) Inspection for Groups 1 and 4 Airplanes

    For groups 1 and 4 airplanes on which the actions of paragraph (g) have been done: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, do a detailed inspection of the nose wheel body structure for any cracking; do a surface high frequency eddy current inspection (HFEC) or an open hole HFEC inspection of the vertical beam outer chord and web for any cracking; and do all applicable related investigative, other specified actions, and corrective actions, in accordance with the Accomplishment Instruction of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015; except as required by paragraph (j)(2) of this AD. Do all applicable related investigative actions, other specified actions, and corrective actions before further flight. Repeat the detailed inspection of the nose wheel body structure, and either the surface HFEC or the open hole HFEC inspection of the vertical beam outer chord, thereafter, at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (i) Inspection for Groups 2, 3, 5 and 6 Airplanes

    For groups 2, 3, 5 and 6 airplanes identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, do a detailed inspection of the nose wheel well body structure for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015; except as required by paragraph (j)(2) of this AD. Do all related investigative and corrective actions before further flight. Repeat the detailed inspection thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (j) Exceptions to the Service Information

    (1) Where Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) If any crack is found during any inspection required by this AD, and Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, specifies to contact Boeing for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (l)(1) of this AD. Information may be emailed to: [email protected]

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (j)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.

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

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

    (l) Related Information

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

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on July 21, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-17718 Filed 7-27-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6990; Directorate Identifier 2016-NE-14-AD] RIN 2120-AA64 Airworthiness Directives; Turbomeca S.A. Turboshaft Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Turbomeca S.A. Arriel 1, 1A, 1A1, 1A2, 1B, 1B2, 1C, 1C1, 1C2, 1D, 1D1, 1E, 1E2, 1K1, 1S, and 1S1 turboshaft engines. This proposed AD was prompted by an anomaly that occurred during the grinding operation required by modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold. This proposed AD would require removing the centrifugal impeller and replacing with a part eligible for installation. We are proposing this AD to prevent failure of the centrifugal impeller, uncontained centrifugal impeller release, damage to the engine, and damage to the helicopter.

    DATES:

    We must receive comments on this NPRM by September 26, 2016.

    ADDRESSES:

    You may send comments by any of the following methods:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

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

    Fax: 202-493-2251.

    For service information identified in this proposed AD, contact Turbomeca S.A., 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; fax: 33 (0)5 59 74 45 15. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6990; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-6990; Directorate Identifier 2016-NE-14-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0090, dated May 10, 2016 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

    Turbomeca reported an anomaly that was generated during the grinding operation associated to the application of modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold.

    This condition, if not corrected, could lead to crack initiation and propagation in the centrifugal impeller bore area, possibly resulting in centrifugal impeller failure, with consequent damage to, and reduced control of, the helicopter. To address this potential unsafe condition, the life of the affected centrifugal impellers was reduced and Turbomeca published Mandatory Service Bulletin (MSB) 292 72 0848 to inform operators about the life reduction and to provide instructions for the replacement of the affected centrifugal impellers.

    For the reasons described above, this AD requires replacement of each affected centrifugal impeller before it exceeds the applicable reduced life limit.

    You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6990.

    Related Service Information

    Turbomeca S.A. has issued Mandatory Service Bulletin (MSB) 292 72 0848, Version B, dated April 13, 2016. The MSB describes procedures for reducing the life limit of the centrifugal impellers affected by an anomaly that occurred during the grinding operation required by modification TU376. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require removal of the centrifugal impeller from service before exceeding the reduced life limit shown in Appendix 1 of EASA AD 2016-0090, dated May 10, 2016, and replacement with a part eligible for installation.

    Costs of Compliance

    We estimate that this proposed AD affects 3 engines installed on helicopters of U.S. registry. We also estimate that it would take about 22 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Required parts cost about $96,518 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $295,164.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Turbomeca S.A.: Docket No. FAA-2016-6990; Directorate Identifier 2016-NE-14-AD. (a) Comments Due Date

    We must receive comments by September 26, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to certain Arriel 1, 1A, 1A1, 1A2, 1B, 1B2, 1C, 1C1, 1C2, 1D, 1D1, 1E, 1E2, 1K1, 1S, and 1S1 turboshaft engines, with modification TU376 installed.

    (d) Reason

    This AD was prompted by an anomaly that occurred during the grinding operation required by modification TU376, which increases the clearance between the rear curvic coupling of the centrifugal impeller and the fuel injection manifold. We are issuing this AD to prevent failure of the centrifugal impeller, uncontained centrifugal impeller release, damage to the engine, and damage to the helicopter.

    (e) Actions and Compliance

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

    (1) Remove from service, any centrifugal impeller listed in Table 1 to paragraph (e) of this AD, before exceeding the applicable cycles since new (CSN) and replace with a centrifugal impeller not listed in Table 1 to paragraph (e) of this AD.

    Table 1 to Paragraph (e)—Centrifugal Impeller CSNs Part No. Serial No. CSN 0292254040 44 5,129 0292254040 1762FT 11,476 0292254050 1676CAR 6,281 0292254050 5333OTT 5,495 0292254050 5017OTT 5,491 0292254050 1136CAR 8,734 0292254050 3655OTT 4,600 0292254050 1757CAR 7,913 0292254050 1738CAR 10,640 0292254050 1149CAR 12,273 0292254050 2677OTT 11,145 0292254050 3109OTT 10,662 0292254050 3496OTT 5,562 0292254050 2074CAR 7,423 729225293A 290CAR 6,326 729225293A 1227FT 8,139 729225293A 504FB 4,600 729225293A 2517OTT 9,732 729225293A 2165OTT 6,163 729225293A 2194FT 11,461 729225293A 1331OTT 12,513 729225293A 1301FT 7,262 729225293A 1567FT 6,305 729225293A 783FB 8,307 729225293A 98OTT 9,492

    (2) Reserved.

    (f) Alternative Methods of Compliance (AMOCs)

    The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

    (g) Related Information

    (1) For more information about this AD, contact Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI, European Aviation Safety Agency AD 2016-0090, dated May 10, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-6990.

    (3) Turbomeca S.A. Mandatory Service Bulletin (MSB) 292 72 0848, Version B, dated April 13, 2016, can be obtained from Turbomeca S.A., using the contact information in paragraph (g)(4) of this proposed AD.

    (4) For service information identified in this proposed AD, contact Turbomeca S.A., 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; fax: 33 (0)5 59 74 45 15.

    (5) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Issued in Burlington, Massachusetts, on July 21, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-17719 Filed 7-27-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8180; Directorate Identifier 2016-NM-083-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by a determination that the protective polyurethane tapes applied to the upper surfaces of the aluminum and titanium floor structural members may not be trimmed properly, and on some places may overhang the profiles of the floor structural parts. Subsequent tests revealed that the overhanging pieces of tapes that are not bonded to the structure do not meet the flammability requirements and may allow fire propagation below the floor structure. This proposed AD would require an inspection of the polyurethane protective tapes installed on the floor structure for excess tape or incorrect tape installation, and corrective actions if necessary. We are proposing this AD to detect and correct overhanging pieces of protective polyurethane tapes, which are not bonded to the structure and do not meet the flammability requirements; this condition may allow fire propagation below the floor structure.

    DATES:

    We must receive comments on this proposed AD by September 12, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8180; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Fabio Buttitta, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7303; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8180; Directorate Identifier 2016-NM-083-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-14, dated May 18, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

    An inspection revealed that the protective polyurethane tapes applied to the upper surfaces of the aluminum and titanium floor structural members installed on CRJ 700/900/1000 aeroplanes may not be trimmed properly and on some places may overhang the profiles of the floor structural parts. Subsequent tests revealed that the overhanging pieces of tapes which are not bonded to the structure, do not meet the flammability requirements. If not corrected, this condition may allow fire propagation below the floor structure.

    This [Canadian] AD was issued to mandate the [detailed] inspection and removal of any excessive pieces of overhanging tape [or replacing incorrectly installed tape] found on the floor structure.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8180.

    Related Service Information Under 1 CFR Part 51

    Bombardier has issued Service Bulletin 670BA-53-055, dated December 3, 2015. The service information describes procedures for inspecting the polyurethane protective tapes for any excess tape or incorrect tape installation on the floor structure and corrective actions, which include removing any excess tape or replacing any incorrect tape installation found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

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

    Costs of Compliance

    We estimate that this proposed AD affects 569 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection and repair 190 work-hours × $85 per hour = $16,150 $0 $16,150 $9,189,350

    The repair is done at the same time as the inspection. Therefore, we have not specified separate on-condition repair costs.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Bombardier, Inc.: Docket No. FAA-2016-8180; Directorate Identifier 2016-NM-083-AD. (a) Comments Due Date

    We must receive comments by September 12, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Bombardier, Inc. airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category.

    (1) Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10002 through 10342 inclusive.

    (2) Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15347 inclusive.

    (3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, serial numbers 19001 through 19040 inclusive.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a determination that the protective polyurethane tapes applied to the upper surfaces of the aluminum and titanium floor structural members may not be trimmed properly, and on some places may overhang the profiles of the floor structural parts. Subsequent tests revealed that the overhanging pieces of tapes that are not bonded to the structure do not meet the flammability requirements and may allow fire propagation below the floor structure. We are issuing this AD to detect and correct overhanging pieces of protective polyurethane tapes, which are not bonded to the structure and do not meet the flammability requirements; this condition may allow fire propagation below the floor structure.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    Within 12,600 flight hours after the effective date of this AD: Do a detailed visual inspection for excess tape or incorrect tape installation of the polyurethane protective tapes installed between floor panels and floor structure between fuselage station (FS) 280.00 and FS969.00; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-53-055, dated December 3, 2015, except as specified in paragraph (h) of this AD. Do all applicable corrective actions before further flight.

    (h) Exception to Service Information

    Where Bombardier Service Bulletin 670BA-53-055, dated December 3, 2015, specifies to contact Bombardier, Inc., to “get an approved disposition to complete this service bulletin,” before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO).

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2016-14, dated May 18, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8180.

    (2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on July 21, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-17717 Filed 7-27-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 2 and 38 [Docket No. RM05-5-025] Standards for Business Practices and Communication Protocols for Public Utilities AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) proposes to incorporate by reference the latest version (Version 003.1) of certain Standards for Business Practices and Communication Protocols for Public Utilities adopted by the Wholesale Electric Quadrant (WEQ) of the North American Energy Standards Board (NAESB). These standards mainly modify and update NAESB's WEQ Version 003 Standards. The Commission also proposes to revise its regulations to incorporate NAESB's updated Smart Grid Business Practice Standards in the Commission's General Policy and Interpretations.

    DATES:

    Comments are due September 26, 2016.

    ADDRESSES:

    Comments, identified by Docket No. RM05-5-025, may be filed in the following ways:

    Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Michael P. Lee (technical issues), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6548. Gary D. Cohen (legal issues), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8321. SUPPLEMENTARY INFORMATION:

    Table of Contents Paragraph numbers I. Background 6 II. Discussion 17 A. Revisions to WEQ OASIS Business Practice Standards in Light of Commission Policies 18 1. Overview 18 2. Redirects from Conditional Parent Reservations 19 3. Requirement to Post ATC Narrative within One Day 26 4. SAMTS Point-to-Point Treatment 28 5. Clarification of Discretion of Transmission Providers to Deny Service Requests under Standard WEQ-001-106.2.5 30 6. Modifications to Allow a Transmission Provider to Extend the Time to Perform its Biennial Reassessment 32 7. Industry-Wide Mechanism for Consistent Posting of AFC-Related Data 34 8. Use of DUNS Numbers 36 B. Revised and New Standards Designed to Complement NERC Reliability Standards and Developments 38 1. NERC Compliance Registry 38 2. Electric Industry Registry Standards 39 3. WEQ-023 Modeling Business Practice Standards 41 C. Revisions to WEQ Business Practice Standards Not Requested by Commission or Developed to Comply with a Commission Directive 43 1. Proper Method to Post Off-OASIS Resale Transactions 44 2. Unmasking of Final State Source and Sink Requests 46 3. Modifications to Smart Grid Standards 48 4. Modification to Standards on Abbreviations, Acronyms and Definitions of Terms 51 5. Public Key Infrastructure-Related Standards 53 D. Implementation 56 III. Notice of Use of Voluntary Consensus Standards 57 IV. Incorporation By Reference 59 V. Information Collection Statement 62 VI. Environmental Analysis 69 VII. Regulatory Flexibility Act Certification 70 VIII. Comment Procedures 74 IX. Document Availability 78

    1. In this notice of proposed rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes to amend its regulations under the Federal Power Act 1 to incorporate by reference the latest version of certain Standards for Business Practices and Communication Protocols for Public Utilities (Version 003.1) adopted by the Wholesale Electric Quadrant (WEQ) of the North American Energy Standards Board (NAESB) and filed with the Commission on October 26, 2015 (October 26 Filing). We also propose to list informationally, as guidance, NAESB's updated Smart Grid Business Practice Standards in Standard WEQ-019. In addition, as explained further below, there are several NAESB standards included in the WEQ Version 003.1 package of standards that we are not proposing in this NOPR to incorporate by reference.

    1 16 U.S.C. 791a, et seq.

    2. These revised NAESB standards update earlier versions of these standards that the Commission previously incorporated by reference into its regulations at 18 CFR 38.1 in Order Nos. 676-E,2 676-H,3 764,4 and 890.5 In addition, NAESB developed two new suites of standards in coordination with the North American Electric Reliability Corporation (NERC) (the Commission-certified “electric reliability organization” responsible for developing and enforcing mandatory Reliability Standards).6 These two NAESB proposals would establish: (1) NAESB Electric Industry Registry (EIR) business practice standards that replace the NERC Transmission System Information Networks (TSIN) as the tool to be used by wholesale electric markets to conduct electronic transactions via electronic tagging (e-Tags); and (2) Modeling Business Practice Standards to support and complement NERC's proposed retirement of its “MOD A” Reliability Standards.7

    2Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676-E, 74 FR 63288 (Dec. 3, 2009), FERC Stats. & Regs. ¶ 31,299 (2009).

    3Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676-H, 79 FR 56939 (Sept. 24, 2014), FERC Stats. & Regs. ¶ 31,359, at n.81 (2014), corrected, 149 FERC ¶ 61,014 (2014).

    4Integration of Variable Energy Resources, Order No. 764, 77 FR 41,482 (July 13, 2012), FERC Stats. & Regs. ¶ 31,331 (2012).

    5Preventing Undue Discrimination and Preference in Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007), FERC Stats. & Regs. ¶ 31,241 (2007).

    6 NERC is the Commission-certified “electric reliability organization” responsible for developing and enforcing mandatory Reliability Standards. See section 215 of the Federal Power Act, 16 U.S.C. 824o (2012).

    7 In a February 19, 2014 petition, NERC proposed to retire Reliability Standards MOD-001-1a, MOD-004-1, MOD-008-1, MOD-028-2, MOD-029-1a, and MOD-030-2 and requested approval of new Reliability Standard MOD-001-2. Generally, the “MOD” series of NERC Reliability Standards pertain to transmission system modeling. The Commission issued a NOPR in Docket No. RM14-7-000 that addressed NERC's proposal, and the matter is currently pending before the Commission. Modeling, Data, and Analysis Reliability Standards, Notice of Proposed Rulemaking, 79 FR 36269 (June 26, 2014), 147 FERC ¶ 61,208 (2014) (MOD NOPR).

    3. NAESB's WEQ Version 003.1 Business Practice Standards include modifications to the following set of existing standards: 8

    8 On October 26, 2015, NAESB filed a report with the Commission (previously referenced as the October 26 Filing) presenting all the modifications it has made to the WEQ Version 003 Business Practice Standards since those standards were incorporated by reference by the Commission in 2014 in Order No. 676-H, as well as two new suites of standards that it has developed, which are further described below in P 12.

    WEQ Business practice standards 000 Abbreviations, Acronyms, and Definition of Terms. 001 Open Access Same-Time Information System (OASIS). 002 OASIS Standards and Communication Protocols (S&CP). 003 OASIS S&CP Data Dictionaries. 004 Coordinate Interchange. 006 Manual Time Error Corrections. 012 Public Key Infrastructure (PKI). 013 OASIS Implementation Guide. 019 Customer Energy Usage Information Communication.

    4. Additionally, the Version 003.1 standards include two new suites of standards:

    WEQ Business practice standards 022 Electric Industry Registry (EIR). 023 Modeling.

    5. These NAESB standards, developed through the NAESB standards development process or the NAESB minor correction process, build upon the Version 003 WEQ Business Practice Standards that NAESB filed with the Commission on September 18, 2012 and that the Commission incorporated by reference into its regulations in Order No. 676-H, a final rule issued by the Commission on September 18, 2014.9

    9See supra n.3.

    I. Background

    6. NAESB is a non-profit standards development organization established in late 2001 (as the successor to the Gas Industry Standards Board (GISB), which was established in 1994) and serves as an industry forum for the development of business practice standards and communication protocols for the wholesale and retail natural gas and electricity industry sectors. Since 1995, NAESB and its predecessor, the GISB, have been accredited members of the American National Standards Institute (ANSI), complying with ANSI's requirements that its standards reflect a consensus of the affected industries.10

    10 Prior to the establishment of NAESB in 2001, the Commission's development of business practice standards for the wholesale electric industry was aided by two ad hoc industry working groups established during the rulemaking proceeding that resulted in issuance of Order No. 889 and the creation of the OASIS, while GISB's efforts involved the development of business practice standards for the wholesale natural gas industry. Once formally established, NAESB took over the standards development previously handled by GISB and by the electric working groups.

    7. NAESB's standards include business practices intended to standardize and streamline the transactional processes of the natural gas and electric industries, as well as communication protocols and related standards designed to improve the efficiency of communication within each industry. NAESB supports all three quadrants of the gas and electric industries—wholesale gas, wholesale electric, and retail markets quadrant.11 All participants in the gas and electric industries are eligible to join NAESB and participate in standards development.

    11 The retail gas quadrant and the retail electric quadrant were combined into the retail markets quadrant. NAESB continues to refer to these working groups as “quadrants” even though there are now only three quadrants.

    8. NAESB develops its standards under a consensus process so that the standards draw support from a wide range of industry members. NAESB's procedures are designed to ensure that all persons choosing to participate can have input into the development of a standard, regardless of whether they are members of NAESB, and each standard NAESB adopts is supported by a consensus of the relevant industry segments. Standards that fail to gain consensus support are not adopted. NAESB's consistent practice has been to submit a report to the Commission after it has made revisions to existing business practice standards or has developed and adopted new business practice standards. NAESB's standards are voluntary standards, which become mandatory for public utilities upon incorporation by reference by the Commission.

    9. In Order No. 676,12 the Commission not only incorporated by reference into its regulations business practice standards and communication protocols for the wholesale electric industry, it also established a formal ongoing process for reviewing and upgrading the Commission's OASIS standards and other wholesale electric industry business practice standards. In later orders in this series, the Commission incorporated by reference revisions to these standards.13

    12Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676, FERC Stats. & Regs. ¶ 31,216 (2006).

    13Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676-C, FERC Stats. & Regs. ¶ 31,274, reh'g denied, Order No. 676-D, 124 FERC ¶ 61,317 (2008); See supra n.2; Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676-F, FERC Stats. & Regs. ¶ 31,309 (2010); Standards for Business Practices and Communication Protocols for Public Utilities, Order No. 676-G, 78 FR 14654 (Mar. 7, 2013), FERC Stats. & Regs. ¶ 31,343 (2013); See supra n.3.

    10. The WEQ Version 003.1 Business Practice Standards include six OASIS-related standards 14 that NAESB modified in response to directives and guidance provided in Order Nos. 676-E, 676-H, and 890. Specifically, in response to the Commission's guidance in Order No. 676-E, NAESB modified its OASIS standards to explicitly permit a transmission provider to extend the performance of the biennial assessment. In response to the Commission's guidance in Order No. 676-H, NAESB made four modifications to the OASIS suite of standards regarding: (1) The treatment of redirects for transmission service from conditional parent reservations; (2) the one-day requirement for the posting of Available Transfer Capability (ATC) Narratives; (3) the treatment of point-to-point reservations under Service Across Multiple Transmission Systems (SAMTS); and (4) the clarification of the requirements under which a transmission provider may deny a request to terminate service. To implement Commission guidance in Order No. 890, NAESB modified standards to allow for the consistent posting of Available Flowgate Capability (AFC) related data on OASIS sites.

    14 The OASIS suite of standards is used collectively by NAESB to reference four business practice standards: WEQ-001 Open Access Same-Time Information System (OASIS); WEQ-002 OASIS Standards and Communication Protocols (S&CP); WEQ-003 OASIS S&CP Data Dictionaries; and WEQ-013 OASIS Implementation Guide.

    11. In addition, as part of the standards development process, NAESB made two additional revisions to the OASIS suite of standards that were not made in response to Commission orders. First, NAESB modified WEQ-001 and WEQ-013 to require resellers to enter off-OASIS resale transactions into OASIS sites in the “accepted” status to provide the assignee of the resale the opportunity to confirm the transaction on the OASIS. Second, NAESB revised WEQ-002-4.3.6.2 to allow for the unmasking of the source and sink of a request for transmission when that request is moved to any final state.

    12. NAESB has adopted certain new and revised WEQ Version 003.1 Business Practice Standards based on developments involving NERC. First, NAESB developed the WEQ-022 Electric Industry Registry (EIR) Business Practice Standards to complement the transfer of registry functions from the NERC TSIN to the NAESB EIR. The EIR database serves as a central repository of information required for commercial interactions, including electronic transactions via e-Tags. Second, NAESB developed the WEQ-023 Modeling Business Practice Standards in response to a NERC petition to delete and retire the six “MOD A” Reliability Standards. As mentioned above, NERC filed a petition with the Commission on February 10, 2014 proposing to retire NERC's six MOD A Reliability Standards and replace them with Reliability Standard MOD-001-2, which NERC states will focus exclusively on the reliability aspects of ATC and AFC.15 On February 7, 2014, NERC submitted a request to NAESB (Standards Request 14002) 16 asking NAESB to consider adopting standards that address the commercial and business aspects of the MOD standards proposed for retirement. NAESB subsequently developed the WEQ-023 Business Practice Standards to support and complement the proposed retirement of the MOD A Reliability Standards. The WEQ-023 Business Practice Standard specifies the requirements for calculating ATC and AFC and supports the task of reporting on the commercial aspects of these calculations.17

    15 As mentioned above, NERC proposes to retire Reliability Standards MOD-001-1a, MOD-004-1, MOD-008-1, MOD-028-2, MOD-029-1a, and MOD-030-2.

    16https://www.naesb.org/pdf4/r140.

    17 These terms are defined in WEQ-000-1.

    13. Third, NAESB has adopted revisions to NAESB standards that need to match up with NERC's Interchange Scheduling and Coordination (INT) Reliability Standards. In this regard, NAESB modified certain WEQ-000 and WEQ-004 Business Practice Standards to complement NERC's proposal to modify the INT Reliability Standards, including removal of the Load Serving Entity (LSE) category as one of the functional registration categories in the NERC Compliance Registry.18

    18 NAESB October 26 Filing at 3.

    14. NAESB also includes as part of its Version 003.1 Business Practice Standards additional non-OASIS standards modifications to WEQ Version 003.1 that it made in the course of normal standards development. In Order No. 764, the Commission required transmission providers to provide for the scheduling of interchange in 15-minute intervals. In response, NAESB made two changes to the WEQ-004 Coordinate Interchange Business Practice Standards. NAESB also modified WEQ-019 to ensure consistency between WEQ Business Practice Standards and other standards organizations' standards. Additionally, NAESB modified WEQ-000 to harmonize definitions with NAESB Retail Market Quadrant efforts.

    15. In Order 676-H, the Commission incorporated by reference WEQ Business Practice Standards to support Public Key Infrastructure (PKI). The WEQ Version 003.1 Business Practice Standards include additional PKI modifications to WEQ-002, WEQ-004, and WEQ-012 to support the NAESB Authorized Certification Authority (Certification Authority) Certification Program and to account for technological advances.

    16. NAESB also has in place a process to make necessary minor corrections to its standards, when needed. The WEQ Version 003.1 Business Practice Standards include seven new minor corrections made by NAESB.19

    19 These corrections are identified and explained in the October 26 Filing.

    II. Discussion

    17. As discussed below, with certain enumerated exceptions, we propose to incorporate by reference (into the Commission's regulations at 18 CFR 38.1(b)) the NAESB WEQ Version 003.1 Business Practice Standards.20 The Version 003.1 standards will replace the Version 003 standards currently incorporated by reference into the Commission's regulations. Where we have proposed in this NOPR to incorporate a NAESB Business Practice Standard by reference into the Commission's regulations, this has been based on a preliminary determination that the standard at issue is consistent with the Commission's findings in Order No. 676-H and does not appear inconsistent with any Commission directives or findings in other orders.

    20 Consistent with our past practice, we do not propose to incorporate by reference into the Commission's regulations the following standards: Standards of Conduct for Electric Transmission Providers (WEQ-009); Contracts Related Standards (WEQ-010); and WEQ/WGQ eTariff Related Standards (WEQ-014). We also do not propose to incorporate by reference at this time the WEQ-023 Modeling Business Practice Standards. We do not propose to incorporate by reference standard WEQ-009 because it contains no substantive standards and merely serves as a placeholder for future standards. We do not propose to incorporate by reference standard WEQ-010 because this standard contains an optional NAESB contract regarding funds transfers and the Commission does not require utilities to use such contracts. Moreover, as discussed more specifically in the section below on Redirects from Conditional Parent Reservations, we do not propose in this NOPR to incorporate by reference certain portions of WEQ-001.

    A. Revisions to WEQ OASIS Business Practice Standards in Light of Commission Policies 1. Overview

    18. The NAESB WEQ Version 003.1 Business Practice Standards contain six modifications to the OASIS suite of standards that NAESB developed to ensure consistency with certain policies articulated by the Commission in Order Nos. 676-H, 676-E, and 890. NAESB states that four of the six modifications align the OASIS suite of standards with guidance provided by the Commission in Order No. 676-H concerning the treatment of redirects for transmission service from conditional parent reservations, the one-day requirement for the posting of ATC Narratives, the treatment of point-to-point reservations under SAMTS, and new clarification of the requirements under which a transmission provider may deny a request to terminate service. In response to a directive in Order No. 676-E, NAESB also modified standards to explicitly permit a transmission provider to extend the performance of the biennial reassessment. Additionally, to implement the Commission's guidance provided in Order No. 890, NAESB modified pertinent standards to allow for the consistent posting of AFC-related data on OASIS sites.

    2. Redirects From Conditional Parent Reservations

    19. In Order No. 676-H, the Commission declined to incorporate by reference NAESB Standards WEQ-001-9.5 and WEQ-001-10.5. The Version 003.0 WEQ-001-9.5 stated that, “upon confirmation of the request to Redirect on a firm basis, the Capacity Available to Redirect shall be reduced by the amount of the redirected capacity granted for the time period of that Redirect.” The Version 003.0 WEQ-001-10.5 contained nearly identical language relating to the confirmation of requests to redirect on a non-firm basis. The Commission explained that it found both of these standards inconsistent with the Commission's precedent in Dynegy Power Marketing, Inc. 21 and Entergy Services, Inc. 22 With regard to Standard WEQ-001-9.5, the Commission explained that, “as we found in these orders, reducing the capacity available to redirect prior to the passage of the conditional reservation deadline could lead to a customer paying firm transmission charges and losing capacity on both its original path and its redirect path.” 23 The Commission further explained that the Dynegy policy “effects a reasonable balancing of interests between the customer and the transmission owner by ensuring that the customer does not potentially lose rights to capacity, while at the same time still permitting the transmission owner to sell available capacity on a short term basis until the redirect becomes unconditional.” The Commission also found that Standard WEQ-001-10.5 raised similar concerns regarding the confirmation of requests to redirect on a non-firm basis and also declined to incorporate by reference Standard WEQ-001-10.5 and requested that NAESB, likewise, give consideration to reworking this standard.

    21 99 FERC ¶ 61,054, at P 9 (2002) (Dynegy).

    22 143 FERC ¶ 61,143, at P 25 & n.68 (2013) (Entergy).

    23Id. P 47.

    20. As the Commission stated in Entergy, 24 our guiding precedent on the issue of when a customer requesting redirect loses rights on the original path was set in Dynegy. 25 In Dynegy, the Commission found that a transmission customer receiving firm transmission service does not lose its rights to its original path until the redirect request satisfies all of the following criteria: (1) It is accepted by the transmission provider; (2) it is confirmed by the transmission customer; and (3) it passes the conditional reservation deadline under section 13.2 of its Open Access Transmission Tariff.

    24Id. P 25 & n.68.

    25Dynegy, 99 FERC ¶ 61,054 at P 9.

    21. Having NAESB revise its standards to accommodate the Commission's policy in this area will help avoid confusion by public utilities as to their responsibilities under the Commission's policy and under the NAESB standards. The Commission's concern in Dynegy and Entergy was that a redirecting customer would lose its rights to the unconditional parent path and be left with no transmission service during the redirect period if the requested redirect was preempted by a competing service request.

    22. We appreciate the extensive work that NAESB and its stakeholder have undertaken in response to our directive in Order 676-H. NAESB has reached consensus on standards relating to redirects related to unconditional parent reservations, and we propose to incorporate those standards by reference into our regulations.

    23. NAESB reports, however, that it was unsure whether and to what extent the Dynegy policy applies to conditional parent reservations and non-firm service, and no consensus could be reached with respect to such standards. It therefore adopted a standard (WEQ-001-9.5) that allows individual transmission providers to craft provisions in their individual tariffs for how they will address redirects of requests for firm transmission service, rather than having an industry-wide business practice for such transactions. Because it could not reach consensus on these issues, the standards also do not prescribe when a public utility must reduce uncommitted capacity to account for redirects. NAESB also adopted a similar rewrite of the standard (WEQ-001-10.5) on redirects on a non-firm basis.

    24. The concern about the negative effects of the potential loss of the customer's parent path when the parent reservation is conditional and subject to competition arguably is much less compelling than when the parent reservation is unconditional. While Dynegy carved out an exception for unconditional parent reservations, the Commission has not explicitly ruled on whether Dynegy applies to conditional parent reservations, and such an extension may go beyond the policy concern with losing firm service articulated in Entergy.

    25. We, therefore, invite comment on whether the Commission should apply the Dynegy policy to conditional and non-firm redirects. Parties also should address the four redirect-related issues on which stakeholders have been unable to reach consensus. These are: (1) The treatment of a firm redirect for transmission service following the preemption of the conditional parent reservation; (2) the circumstances under which a firm redirect for transmission service may return to the conditional parent reservation; (3) the number of subsequent firm redirects for transmission service that can stem from the original firm redirect for transmission service; and (4) the proper treatment of requests to redirect requests for non-firm transmission service. Based on these responses, the Commission will consider whether it will adopt regulations regarding redirects from conditional parent reservations and non-firm service.

    3. Requirement To Post ATC Narrative Within One Day

    26. NAESB developed Standard WEQ-001-14 to meet the requirement in Order No. 890 for transmission providers to post a narrative in instances when ATC remains unchanged at a value of zero for six months or longer. In addition, Standard WEQ-001-15 requires transmission providers to post a brief narrative that explains the reason for a change in monthly or yearly ATC values on a constrained path when a monthly or yearly ATC value changes as a result of a 10 percent change in total transfer capability. In Order No. 676-H, the Commission declined to incorporate by reference Standards WEQ-001-14.1.3 and WEQ-011-15.1.2 after determining that these standards did not meet the Commission's requirement to post the ATC narrative as soon as feasible.26 The Commission requested that NAESB “revise these standards to provide for a one-day posting requirement.” 27 In response, NAESB modified Standards WEQ-001-14.1.3 and WEQ-011-15.1.2 and adopted business practice standards to support the one-day posting requirement.

    26 Order No. 676-E, FERC Stats. & Regs. ¶ 31,299 at P 39.

    27Id. P 29.

    27. NAESB's revised standards appear consistent with our findings in Order No. 676-H and do not appear inconsistent with any Commission directives or findings in other orders. Moreover, as we explained above,28 below,29 and in previous orders, the NAESB standards are developed in an open consensus process that assures that the standards draw support from a wide range of industry members before being developed and adopted. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revised standards on the timing of the required posting of ATC narratives, as set forth in NAESB's WEQ Version 003.1 Business Practice Standards.

    28See supra P 8.

    29See infra P 57.

    4. SAMTS Point-to-Point Treatment

    28. The NAESB SAMTS business practice standards that the Commission incorporated by reference in Order No. 676-H were developed in response to a Commission finding in Order No. 890 requesting that NAESB develop business practice standards in this area.30 In Order No. 676-H, the Commission found reasonable a NAESB request to treat a conditional point-to-point reservation included in a coordinated group displaced through preemption as comparable to a reservation being superseded as a result of preemption.31 NAESB therefore includes in the Version 003.1 standards modifications to the SAMTS-related standards to permit a customer with preempted transmission capacity from a reservation associated with a coordinated group to alter (reduce or terminate) the capacity of coordinate requests in the coordinated group.

    30 Order No. 890, FERC Stats. & Regs. ¶ 31,241 at P 1377.

    31 Order No. 676-H, FERC Stats. & Regs. ¶ 31,359 at P 65.

    29. The Commission finds that NAESB's revised standards are consistent with our findings in Order No. 676-H and do not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revised standards on SAMTS-Related standards as set forth in the WEQ Version 003.1 Business Practice Standards.

    5. Clarification of Discretion of Transmission Providers To Deny Service Requests Under Standard WEQ-001-106.2.5

    30. In Order No. 676-H, the Commission declined to incorporate by reference Standard WEQ-001-106.2.5, explaining that the standard was “unclear in its application and could be read to allow Transmission Providers discretion to deny requests to terminate service in situations where this might not be warranted.” 32 In response, NAESB modified Standard WEQ-001-106.2.1, added Standard WEQ-001-106.2.1.1, and deleted Standard WEQ-001-106.2.5. Together, these revised standards clarify that a transmission customer should submit an accurate termination request and, if the transmission customer fails to do so, the transmission provider may deny the request.

    32Id. P 58.

    31. NAESB's revised standards appear consistent with our findings in Order No. 676-H and do not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revised Standards WEQ-WEQ-001-106.2.21, WEQ-001-106.2.1.1, and WEQ-001-106.2.5, as set forth in the WEQ Version 003.1 Business Practice Standards.

    6. Modifications To Allow a Transmission Provider To Extend the Time To Perform Its Biennial Reassessment

    32. In Order No. 676-E, the Commission stated “we reiterate here the Commission's finding in Order No. 890 that a transmission provider is permitted to extend the timeframe to reassess the availability of conditional firm service. Since the Version 002.1 Standards do not specifically address this issue, we would ask the industry, working through NAESB, to continue to look at additional business practice standards facilitating a transmission provider's extension of its right to perform a reassessment.” 33 In response to this request, NAESB, in its Version 003.1 Standards, adopted modifications to five standards in the WEQ-001 OASIS Business Practice Standards and one standard in the WEQ-013 OASIS Implementation Guide Business Practice Standards that explicitly allow a transmission provider to extend the deadline by which it must perform its biennial reassessment of the availability on its system of conditional firm service.

    33 Order No. 676-E, FERC Stats. & Regs. ¶ 31,299 at P 72.

    33. NAESB's revised standards appear consistent with our findings in Order No. 676-E and do not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to five standards to extend the deadline by which a transmission provider must perform its biennial reassessment of the availability on its system of conditional firm service, as set forth in the WEQ Version 003.1 Business Practice Standards.

    7. Industry-Wide Mechanism for Consistent Posting of AFC-Related Data

    34. In Order No. 890-A, the Commission explained that “[t]o the extent MidAmerican or its customers find it beneficial also to post AFC, MidAmerican is free to post both ATC and AFC values.” 34 In the WEQ Version 003.1 Business Practice Standards, NAESB includes revisions to provide an industry-wide mechanism for posting of AFC-related data. NAESB adds three new data elements to the list of valid data element values for SYSTEM_ATTRIBUTE and SYSTEM_ELEMENT_TYPE in WEQ-003 OASIS Data Dictionary and to the system data OASIS template in WEQ-013 OASIS Implementation Guide Business Practice Standards.

    34 Order No. 890-A, FERC Stats. & Regs. ¶ 31,261 at P 51.

    35. NAESB's revised standards appear consistent with our findings in Order No. 890-A and do not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to the data elements in the OASIS Data Dictionary and to the data OASIS Template in Standard WEQ-013 to provide an industry-wide mechanism for posting of AFC-related data, as set forth in the WEQ Version 003.1 Business Practice Standards.

    8. Use of DUNS Numbers

    36. In Order No. 768, the Commission eliminated the requirement to use DUNS numbers 35 in Electronic Quarterly Report filings and stated that “DUNS numbers have proven to be imprecise identification systems, as entities may have multiple DUNS numbers, only one DUNS number, or no DUNS number at all.” 36 NAESB has adopted revisions to Standard WEQ-001-3.1 to eliminate the use of a DUNS number to identify an organization in OASIS postings. For consistency, NAESB also adopted changes or modifications to the Standard WEQ-000 Abbreviations, Acronyms, and Definition of Terms Business Practice Standards, WEQ-001 OASIS Business Practice Standards, WEQ-003 OASIS Data Dictionary Business Practice Standards, and WEQ-013 OASIS Implementation Guide Business Practice Standards.

    35 The Data Universal Numbering System, abbreviated as DUNS or D-U-N-S, is a proprietary system developed and regulated by Dun & Bradstreet that assigns a unique numeric identifier, referred to as a “DUNS number” to a single business entity.

    36Electricity Market Transparency Provisions of Section 220 of the Federal Power Act, Order No. 768, 77 FR 61896, FERC Stats. & Regs. ¶ 31,336, at P 171 (2012).

    37. NAESB's revised standards appear consistent with the Commission's findings in Order No. 768 and do not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to Standard WEQ-002-4.3.6.2.

    B. Revised and New Standards Designed To Complement NERC Reliability Standards and Developments 1. NERC Compliance Registry

    38. The WEQ Version 003.1 standards include modifications to the WEQ-004 Coordinate Interchange Business Practice Standards to include in the EIR items eliminated by NERC, in Docket No. RR15-4-000, from the NERC Compliance Registry including the elimination of the LSE, the Purchase Selling Entity, and the Interchange Authority roles. This proposal was accepted by the Commission in orders issued on March 19, 2015 37 and on October 15, 2015.38 Because the Commission has accepted the elimination of the LSE function from the NERC Compliance Registry, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, the NAESB modifications of WEQ-004 pertaining to Coordinate Interchange Business Practices.

    37North American Electric Reliability Corporation, 150 FERC ¶ 61,213 (2015).

    38North American Electric Reliability Corporation, 153 FERC ¶ 61,024, at P 20 (2015).

    2. Electric Industry Registry Standards

    39. On November 13, 2012, the NAESB EIR replaced the NERC TSIN as the industry registry, a tool previously used by wholesale electric markets to help them develop e-Tags for electronic scheduling. Thus, the NAESB EIR is now the tool the industry uses to support OASIS users in the electronic scheduling of transactions by acting as the central repository for information used by the wholesale electric industry in the creation of e-Tags. The WEQ-004 Coordinate Interchange Business Practice Standards and e-Tag Functional Specifications and Schema provide the commercial framework for e-Tagging. The new WEQ-022 EIR Business Practice Standards establish business practices for the NAESB EIR and provide guidance for registry users.

    40. NAESB's revised Standard WEQ-004 appears reasonable and does not appear inconsistent with any Commission directives or findings in other orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revised Standard WEQ-004 as set forth in the WEQ Version 003.1 Business Practice Standards.

    3. WEQ-023 Modeling Business Practice Standards

    41. WEQ's Version 003.1 Business Practice Standards includes a new suite of standards, the WEQ-023 Modeling Business Practice Standards, which address technical issues affecting the calculation of ATC for wholesale electric transmission services. NAESB developed these Modeling standards after NERC proposed to retire the bulk of its MOD A Reliability Standards, which address ATC calculation, and NERC requested that NAESB consider developing replacement Business Practice Standards for requirements that NERC identified as being potentially relevant for commercial purposes.39 WEQ-023 includes two new requirements not previously included in the NERC Reliability Standards related to contract path management. These two standards, WEQ-023-1.4 and WEQ-023-1.4.1, limit the amount of firm transmission service across a path between balancing authorities to the contract path limit for that given path.

    39 NERC's proposal is currently pending before the Commission in the rulemaking proceeding in Docket No. RM14-7-000, see supra n.7.

    42. The Commission is considering NERC's proposed retirement of its ATC-related Reliability Standards in Docket No. RM14-7-000. In addition, the Commission has established a proceeding in Docket No. AD15-5-000 to consider proposed changes to the calculation of ATC, and has conducted a technical conference and received comments regarding such changes.40 As a result, we are not proposing to incorporate by reference the WEQ-023 Modeling Business Practice Standards in this NOPR, but will consider these standards as part of the overall inquiry into ATC calculation.

    40See, e.g., the December 18, 2014 status report filed by NAESB in Docket Nos. RM05-5-000 and RM14-7-000, and the Commission's April 21, 2015 workshop, Available Transfer Capability Standards for Wholesale Electric Transmission Services, Docket No. RM15-5-000.

    C. Revisions to WEQ Business Practice Standards Not Requested by Commission or Developed To Comply With a Commission Directive

    43. In addition to the standards revisions that NAESB made to comply with various Commission directives and requests, NAESB also developed and adopted five revisions to the Business Practice Standards at its own initiative. These revisions: (1) Introduce a requirement for resellers to post off-OASIS resale transactions on the OASIS in the “accepted” status to provide the assignee of the resale the opportunity to confirm the transaction on the OASIS; (2) allow for the unmasking of the source and sink of a request for transmission service, once that request is moved to any final state; (3) modify the Commission's existing non-mandatory guidance on Smart Grid standards; (4) modify the WEQ Abbreviations, Acronyms, and Definition of Terms in Standard WEQ-000 to maintain consistency between the defined terms used in the NAESB standards, including revisions to the terms “Demand Reduction Value” and “Energy Efficiency” to mirror definitions proposed by the Retail Market Quadrant and prevent industry confusion; and (5) modify the Commission's PKI-related standards. We will now separately discuss each of these revisions.

    1. Proper Method To Post Off-OASIS Resale Transactions

    44. NAESB's WEQ Version 003.1 Business Practice Standards include a revision to the WEQ-013 OASIS Implementation Guide Business Practice Standards to allow off-OASIS resale transactions to be posted directly to the OASIS under an “accepted” status. Prior to the modification to WEQ-013-2.6.7.2, these transactions were posted only as confirmed transactions. NAESB has also adopted a revision to the WEQ-001 OASIS Business Practice Standards (WEQ-013-2.6.7.2) as a conforming change requiring a service agreement between an assignee and a transmission provider to be executed once the assignee has confirmed the resale transaction on the OASIS.

    45. NAESB's revised standards on this subject appear reasonable and do not appear inconsistent with any directives or findings in any Commission orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to Standard WEQ-013-2.6.7.2 and to the WEQ-013 OASIS Implementation Guide Standards.

    2. Unmasking of Final State Source and Sink Requests

    46. NAESB's WEQ Version 003.1 Business Practice Standards modify Standard WEQ-002-4.3.6.2 to unmask the source and sink for a request for transmission service for all instances where the request for transmission service is moved to any final state. Prior to this modification, masking of the source and sink of a request for transmission service was permitted until the status of that request was confirmed.

    47. NAESB's revised standards appear reasonable and do not appear inconsistent with any directives or findings in any Commission order. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to Standard WEQ-002-4.3.6.2.

    3. Modifications to Smart Grid Standards

    48. In Order 676-H, the Commission recognized the values of the Smart Grid standards and encouraged “further developments in interoperability, technological innovation and standardization in this area.” In Order No. 676-H, the Commission adopted in its regulations as non-mandatory guidance five Smart Grid related standards: (1) WEQ-016 Specifications for Common Electricity Product and Pricing Definition Business Practice Standards; (2) WEQ-017 Specifications for Common Schedule Communication Mechanism for Energy Transactions; (3) WEQ-018 Specifications for Wholesale Standard Demand Response Signals Business Practice Standards; (4) WEQ-019 Customer Energy Usage Information Communication Business Practice Standards; and (5) WEQ-020 Smart Grid Standards Data Elements Table Business Practice Standards. This guidance is published in the Federal Register at 18 CFR 2.27.

    49. In its Version 003.1 Business Practice Standards, NAESB has modified the Standard WEQ-019 Customer Energy Usage Information Communication Business Practice Standards. NAESB made this modification so that the revised standard will operate in harmony with other smart grid standards, including the Smart Energy Profile 2.0, the International Electrotechnical Commission Information Model, the NAESB REQ.21 Energy Service Providers Interface, and standards developed by the American Society of Heating, Refrigerating, and Air-Conditioning Engineers.

    50. Standard WEQ-019 provides for energy usage information and this revision allows consumers access to their energy usage information. These standards will not only be used by the wholesale electric industry, but also are important initiatives for use in ongoing utility programs for consumer data access. We, therefore, propose to revise our non-mandatory guidance that we listed in 18 CFR 2.27(d) to reference NAESB's updated Standard WEQ-019 as set out in the Version 003.1 package of WEQ Business Practice Standards, replacing the existing reference in 18 CFR 2.27(d) to Standard WEQ-019 as set out in the Version 003 WEQ Business Practice Standards.

    4. Modification to Standards on Abbreviations, Acronyms and Definitions of Terms

    51. Also included in Version 003.1 is a modification to WEQ Abbreviations, Acronyms, and Definition of Terms in Standard WEQ-000 to maintain consistency between the defined terms used in the NAESB standards, and modified the terms “Demand Reduction Value” and “Energy Efficiency” to mirror definitions proposed by the Retail Market Quadrant and prevent industry confusion.

    52. NAESB's revised standards appear reasonable and do not appear inconsistent with any directives or findings in any Commission orders. Accordingly, we propose to incorporate by reference, into the Commission's regulations at 18 CFR 38.1, NAESB's revisions to Standard WEQ-000.

    5. Public Key Infrastructure-Related Standards

    53. NAESB includes three modifications to support the WEQ-012 PKI Business Practice Standards previously incorporated by reference by the Commission in Order No. 676-H.41 The three PKI-related modifications made in the Version 003.1 Standards were to the WEQ-012 PKI Business Practice Standards, the WEQ-002 OASIS Standards and Communication Protocols Business Practice Standards, and the WEQ-004 Coordinate Interchange Business Practice Standards. NAESB modified WEQ-012 to accommodate technology changes and security advances as well as to remove standards specifying criteria a certificate authority must meet. NAESB moved the standards specifying criteria that must be met out of the Version 003.1 Business Practice Standards and into a second document that outlines the prerequisites a certificate authority must meet to become a NAESB Certification Authority.42

    41 These three modifications were not included in the Version 003 filing NAESB made on September 18, 2012 but rather were filed separately by NAESB on January 29, 2013 following the conclusion of standards development. See Submittal of Modifications to the NAESB Public Key Infrastructure Standards and Other Standards to support the Public Key Infrastructure, Docket Nos. RM05-5-000 and RM05-5-022, January 29, 2013.

    42 The specifications document was created in recognition that certificate authorities may not be subject to the Commission's jurisdictional authority under the Federal Power Act and that specification requirements can be modified through an accelerated process versus standards development.

    54. NAESB modified five standards and added three standards WEQ-002, which require the use of a certificate issued by a NAESB Certification Authority to access an OASIS site and include requirements related to support the implementation of PKI on OASIS sites as well as revisions to reflect the transmission of the registry from the NERC TSI to the NAESB EIR. NAESB includes one new standard, WEQ-004-2.3, which requires all e-Tagging communication to be secured by certifications issued by a NAESB Certification Authority. NAESB also includes modifications to WEQ-000 for consistency purposes.

    55. In Order No. 676-H, the Commission incorporated by reference the WEQ-012 PKI Business Practice Standards. In Version 003.1, NAESB has filed three modifications to support these standards, requesting that the Commission also incorporate by reference these modifications. We propose to incorporate these revised standards by reference into the Commission's regulations. These revised standards will require public utilities to conduct transactions securely when using the internet and will eliminate confusion over which transactions involving public utilities must follow the approved PKI procedures to secure their transactions. The revisions support the NAESB Authorized Certification Authority (ACA) Certification Program and account for technological advances following the original adoption of the standards by NAESB.43

    43 We note the NAESB ACA Certification Program is solely a service offered by NAESB, and is not include in WEQ-012.

    D. Implementation

    56. Consistent with the policy that we introduced in Order No. 676-H,44 we propose upon issuance of a final rule, to establish a specific date by which all public utilities must file compliance filings revising their tariffs to acknowledge their responsibility to comply with the revised standards. In Order No. 676-H, we permitted public utilities that wish to incorporate the complete set of NAESB standards into their tariffs without modification to avoid having to make future compliance filings by specifying in their compliance filing that they are incorporating into their tariff all of the standards incorporated by reference by the Commission as specified in Part 38 of the Commission's Rules of Practice and Procedure as updated and revised. Those public utilities that followed this approach after the issuance of Order No. 676-H will not need to make a compliance filing revising their tariff after issuance of a final rule in this proceeding as long as they continue to incorporate all of the standards without modification. Public utilities that have not availed themselves of this option in complying with Order No. 676-H would be free to do so in complying with a final rule in this proceeding.

    44 Order No. 676-H, FERC Stats. & Regs. ¶ 31,359 at P 71.

    III. Notice of Use of Voluntary Consensus Standards

    57. The NAESB WEQ Version 003.1 Business Practice Standards were adopted by NAESB under NAESB's consensus procedures.45 As the Commission found in Order No. 676, adoption of consensus standards is appropriate because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of all segments of the industry. Moreover, since the industry itself has to conduct business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. In section 12(d) of the National Technology Transfer and Advancement Act of 1995, Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as a means to carry out policy objectives or activities unless use of such standards would be inconsistent with applicable law or otherwise impractical.46

    45 Under this process, to be approved a standard must receive a super-majority vote of 67 percent of the members of the WEQ's Executive Committee with support from at least 40 percent from each of the five industry segments—transmission, generation, marketer/brokers, distribution/load serving entities, and end users. For final approval, 67 percent of the WEQ's general membership must ratify the standards.

    46 Public Law 104-113, 12(d), 110 Stat. 775 (1996), 15 U.S.C. 272 note (1997).

    58. Office of Management and Budget Circular A-119 (section 11) (February 10, 1998) provides that Federal Agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this NOPR, the Commission is proposing to incorporate by reference voluntary consensus standards developed by the WEQ of NAESB.

    IV. Incorporation by Reference

    59. The Office of the Federal Register requires agencies incorporating material by reference in final rules to discuss, in the preamble of the final rule, the ways that the materials it incorporates by reference are reasonably available to interested parties and how interested parties can obtain the materials.47 The regulations also require agencies to summarize, in the preamble of the final rule, the material it incorporates by reference. The NAESB standards we are proposing to incorporate by reference in this Final Rule can be summarized as follows:

    47 1 CFR 51.5. See Incorporation by Reference, 79 FR 66267 (Nov. 7, 2014).

    Revisions to OASIS Standards. The Version 003.1 standards include revisions to six OASIS-related standards made to conform to directives and guidance provided by the Commission in Order Nos. 676-E, 676-H, and 890. In addition, NAESB modified WEQ-001 and WEQ-013 to require resellers to enter off-OASIS resale transactions into OASIS sites in the “accepted” status to provide the assignee of the resale the opportunity to confirm the transaction on the OASIS and revised WEQ-002-4.3.6.2 to allow for the unmasking of the source and sink of a request for transmission when that request is moved to any final state. Finally, NAESB modified WEQ-001, WEQ-003, and WEQ-013 to be consistent with the Commission's treatment of Data Universal Numbering System (DUNS) numbers.

    Revisions to NERC-Related Standards. NAESB modified existing standards and developed new standards based on developments involving NERC. In addition, NAESB has adopted revisions to NAESB standards that need to match up with NERC's Interchange Scheduling and Coordination (INT) Reliability Standards. The Commission is proposing to incorporate by reference the WEQ-022 standards and the standards relating to NERC's INT standards.48

    48 As discussed above, NAESB has also adopted modifications to NERC-related standards, such as WEQ-023, that we do not propose in this NOPR to incorporate by reference.

    Standards Development. NAESB also modified four additional standards in the course of normal standards development. In response to Order No. 764, NAESB modified WEQ-004 to provide for the scheduling of interchange in 15-minute intervals and modified WEQ-019 to ensure consistency between WEQ Business Practice Standards and other standards organizations' standards. Additionally, NAESB modified WEQ-000 to harmonize definitions with NAESB Retail Market Quadrant efforts.

    PKI Modifications. The standards include additional PKI modifications to WEQ-002, WEQ-004, and WEQ-012 to support the NAESB Authorized Certification Authority (Certification Authority) Certification Program and to account for technological advances.

    Minor Corrections. Under its process to make necessary minor corrections to its standards, when needed, the WEQ Version 003.1 Business Practice Standards include seven new minor corrections made by NAESB.

    60. Our regulations provide that copies of the NAESB standards incorporated by reference may be obtained from the North American Energy Standards Board, 801 Travis Street, Suite 1675, Houston, TX 77002, Phone: (713) 356-0060. NAESB's Web site is located at http://www.naesb.org/. Copies of the standards may be inspected at the Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street NE., Washington, DC 20426, Phone: (202) 502-8371, http://www.ferc.gov. 49

    49 18 CFR 284.12.

    61. NAESB is a private consensus standards developer that develops voluntary wholesale and retail standards related to the energy industry. The procedures used by NAESB make its standards reasonably available to those affected by the Commission regulations, which generally is comprised of entities that have the means to acquire the information they need to effectively participate in Commission proceedings.50 NAESB provides a free electronic read-only version of the standards for a three business day period or, in the case of a regulatory comment period, through the end of the comment period.51 Participants can join NAESB, for an annual membership cost of $7,000, which entitles them to full participation in NAESB and enables them to obtain these standards at no additional cost.52 Non-members may obtain a complete set of Standards Manuals, Booklets, and Contracts on CD for $2,000 and the Individual Standards Manual or Booklets for each standard by email for $250 per manual or booklet.53 In addition, NAESB considers requests for waivers of the charges on a case by case basis based on need.

    50 As a private, consensus standards developer, NAESB needs the funds obtained from its membership fees and sales of its standards to finance the organization. The parties affected by these Commission regulations generally are highly sophisticated and have the means to acquire the information they need to effectively participate in Commission proceedings.

    51 Procedures for non-members to evaluate work products before purchasing are available at https://www.naesb.org/misc/NAESB_Nonmember_Evaluation.pdf. See Incorporation by Reference, 79 FR at 66271, n.51 & 53 (Nov. 7, 2014) (citing to NAESB's procedure of providing “no-cost, no-print electronic access,” NAESB Comment at 1, http://www.regulations.gov/#!documentDetail;D=OFR-2013-0001-0023).

    52 North American Energy Standards Board Membership Application, https://www.naesb.org/pdf4/naesbapp.pdf.

    53 NAESB Materials Order Form, https://www.naesb.org//pdf/ordrform.pdf.

    V. Information Collection Statement

    62. The following collection of information contained in this proposed rule is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d).54 OMB's regulations require approval of certain information collection requirements imposed by agency rules.55 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    54 44 U.S.C. 3507(d).

    55 5 CFR 1320.11.

    63. The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

    64. The following burden estimate is based on the projected costs for the industry to implement the new and revised business practice standards adopted by NAESB and proposed to be incorporated by reference in this NOPR.56

    56 Commission staff estimates that industry is similarly situated in terms of hourly cost (wages plus benefits). Based on the Commission average cost (wages plus benefits) for 2016, $74.50/hour is used.

    Revisions in NOPR in RM05-5-025 Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total number of responses Average burden (hours) & cost ($) per response Total annual burden hours & total annual cost
  • ($)
  • (1) (2) (1)*(2)=(3) (4) (3)*(4)=(5) FERC-516E 57 58 (tariff filing) 132 1 132 6
  • $447
  • 792 hours.
  • $59,004.
  • FERC-717 (compliance with standards) 59 132 1 132 30 60
  • $2,235
  • 3,960 hours.
  • $295,020.
  • Total 264 36 hours
  • $2,682
  • 4,752 hours.
  • $354,024.
  • Costs To Comply With Paperwork Requirements

    The estimated annual costs are as follows:

    57 This burden category is intended for “FERC-516,” the Commission's identifier that corresponds to OMB Control No. 1902-0096 (Electric Rate Schedules and Tariff Filings). However, another unrelated item is pending OMB review using this OMB Control No. and only one item per OMB Control No. may be pending at a time. Therefore, to ensure timely submission, Commission staff is using FERC-516E (OMB Control No. TBD), a temporary collection number.

    58 These information collection requirements are one-time burden estimates. After implementation in Year 1, the revision proposed in this NOPR would be complete.

    59 “FERC-717” is the Commission's identifier that corresponds to OMB control no. 1902-0173 that identifies the information collection associated with Standards for Business Practices and Communication Protocols for Public Utilities.

    60 The 30-hour estimate was developed in Docket No. RM05-5-013, when the Commission prepared its estimate of the scope of work involved in transitioning to the NAESB Version 002.1 Business Practice Standards. See Order No. 676-E, FERC Stats. & Regs. ¶ 31,299 at P 134. We have retained the same estimate here, because the scope of the tasks involved in the transition to Version 003.1 of the Business Practice Standards is very similar to that for the transition to the Version 003 Standards.

    • FERC-516E: 132 entities * 1 response/entity * (6 hours/response * $74.50/hour) = $57,024.

    • FERC-717: 132 entities * 1 response/entity * (30 hours/response * $74.50/hour) = $285,120.

    Titles: Electric Rate Schedule Filing (FERC-516E); Open Access Same Time Information System and Standards for Business Practices and Communication Protocols for Public Utilities (FERC-717).

    Action: Proposed collection.

    OMB Control Nos.: TBD (FERC-516E); 1902-0173 (FERC-717).

    Respondents: Business or other for profit (Public Utilities—Generally not applicable to small businesses).61

    61See infra PP 72-73.

    Frequency of Responses: One-time implementation (business procedures, capital/start-up).

    65. Necessity of the Information: This proposed rule, if implemented would upgrade the Commission's current business practice and communication standards and protocols modifications to support compliance with requirements established by the Commission in Order Nos. 890, 890-A, 890-B, and 890-C, as well as modifications to the OASIS-related standards to support Order Nos. 676, 676-A, 676-E, and 717.

    66. Internal Review: The Commission has reviewed the revised business practice standards and has made a preliminary determination that the proposed revisions that we propose here to incorporate by reference are both necessary and useful. In addition, the Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimate associated with the information requirements.

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

    68. Comments concerning the information collections proposed in this NOPR and the associated burden estimates should be sent to the Commission at this docket and by email to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address: [email protected] Please reference the docket number of this Notice of Proposed Rulemaking (Docket No. RM05-5-25) and OMB Control Nos. TBD (FERC-516E) and 1902-0173 (FERC-717) in your submission.

    VI. Environmental Analysis

    69. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.62 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment.63 The actions proposed here fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of electric power that requires no construction of facilities.64 Therefore, an environmental assessment is unnecessary and has not been prepared in this NOPR.

    62Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987).

    63 18 CFR 380.4.

    64See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).

    VII. Regulatory Flexibility Act Certification

    70. The Regulatory Flexibility Act of 1980 (RFA) 65 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA does not mandate any particular outcome in a rulemaking. It only requires consideration of alternatives that are less burdensome to small entities and an agency explanation of why alternatives were rejected.

    65 5 U.S.C. 601-612.

    71. The Small Business Administration (SBA) revised its size standards (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates. Under SBA's standards, some transmission owners will fall under the following category and associated size threshold: Electric bulk power transmission and control, at 500 employees.66

    66 13 CFR 121.201, Sector 22 (Utilities), NAICS code 221121 (Electric Bulk Power Transmission and Control).

    72. The Commission estimates that 5 of the 132 respondents are small. The Commission estimates that the impact on these entities is consistent with the paperwork burden of $2,682 per entity used above.67 The Commission does not consider $2,682 to be a significant economic impact.

    67 36 hours at $74.50/hour = $2,682.

    73. Based on the above, the Commission certifies that implementation of the proposed Business Practice Standards will not have a significant impact on a substantial number of small entities. Accordingly, no initial regulatory flexibility analysis is required.

    VIII. Comment Procedures

    74. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due September 26, 2016. Comments must refer to Docket No. RM05-5-025 and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.

    75. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    76. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    77. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    IX. Document Availability

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

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

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

    List of Subjects 18 CFR Part 2

    Electric utilities, Guidance and policy statements.

    18 CFR Part 38

    Conflict of interests, Electric power plants, Electric utilities, Incorporation by reference, Reporting and recordkeeping requirements.

    By direction of the Commission.

    Dated: July 21, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend parts 2 and 38, chapter I, title 18, Code of Federal Regulations, as follows:

    PART 2—GENERAL POLICY AND INTERPRETATIONS 1. The authority citation for part 2 continues to read as follows: Authority:

    5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432, 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 4321-4370h, 7101-7352.

    2. Amend § 2.27 by revising paragraph (d) to read as follows:
    § 2.27 Availability of North American Energy Standards Board (NAESB) Smart Grid Standards as non-mandatory guidance.

    (d) WEQ-019, Customer Energy Usage Information Communication (WEQ Version 003.1, Sep. 30, 2015); and

    PART 38—STANDARDS FOR PUBLIC UTILITY BUSINESS OPERATIONS AND COMMUNICATIONS 3. The authority citation for part 38 continues to read as follows: Authority:

    16 U.S.C. 791-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

    4. Amend § 38.1, by revising paragraph (b) to read as follows:
    § 38.1 Incorporation by reference of North American Energy Standards Board Wholesale Electric Quadrant standards.

    (b) The business practice and electronic communication standards the Commission incorporates by reference are as follows:

    (1) WEQ-000, Abbreviations, Acronyms, and Definition of Terms (Version 003.1, Sep., 30, 2015);

    (2) WEQ-001, Open Access Same-Time Information System (OASIS), OASIS Version 2.1 (WEQ Version 003.1, Sep. 30, 2015) with the exception of Standards 001-9.5, 001-10.5, 001-14.1.3, 001-15.1.2 and 001-106.2.5);

    (3) WEQ-002, Open Access Same-Time Information System (OASIS) Business Practice Standards and Communication Protocols (S&CP), OASIS Version 2.1 (WEQ Version 003.1, Sep. 30, 2015);

    (4) WEQ-003, Open Access Same-Time Information System (OASIS) Data Dictionary Business Practice Standards, OASIS Version 2.1 (WEQ Version 003.1, Sep. 30, 2015);

    (5) WEQ-004, Coordinate Interchange (WEQ Version 003.1, Sep. 30, 2015);

    (6) WEQ-005, Area Control Error (ACE) Equation Special Cases (WEQ Version 003.1, Sep. 30, 2015);

    (7) WEQ-006, Manual Time Error Correction (WEQ Version 003, Sep. 30, 2015);

    (8) WEQ-007, Inadvertent Interchange Payback (WEQ Version 003.1, Sep. 30, 2015);

    (9) WEQ-008, Transmission Loading Relief (TLR)—Eastern Interconnection (WEQ Version 003.1, Sep. 30, 2015);

    (10) WEQ-011, Gas/Electric Coordination (WEQ Version 003.1, Sep. 30, 2015);

    (11) WEQ-012, Public Key Infrastructure (PKI) (WEQ Version 003.1, Sep. 30, 2015);

    (12) WEQ-013, Open Access Same-Time Information System (OASIS) Implementation Guide, OASIS Version 2.1 (WEQ Version 003.1, Sep. 30, 2015);

    (13) WEQ-015, Measurement and Verification of Wholesale Electricity Demand Response (WEQ Version 003.1, Sep. 30, 2015);

    (14) WEQ-021, Measurement and Verification of Energy Efficiency Products (WEQ Version 003.1, Sep. 30, 2015).

    (15) WEQ-022, Electric Industry Registry Business Practice Standards (WEQ Version 003.1, Sep. 30, 2015); and

    (16) WEQ-023, Modeling Business Practice Standards (WEQ Version 003.1, Sep. 30, 2015).

    [FR Doc. 2016-17841 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM15-23-000] Collection of Connected Entity Data From Regional Transmission Organizations and Independent System Operators; Withdrawal AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Withdrawal of notice of proposed rulemaking and termination of rulemaking proceeding.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is withdrawing its proposal to amend its regulations to require each regional transmission organization and independent system operator to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would: Identify the market participants by means of a common alpha-numeric identifier; list their “Connected Entities;” and describe in brief the nature of the relationship of each Connected Entity. The Commission is also concurrently issuing a Notice of Proposed Rulemaking in Docket No. RM16-17-000, which supersedes this proposal.

    DATES:

    The notice of proposed rulemaking published on September 29, 2015, at 80 FR 58382, is withdrawn as of July 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jamie Marcos, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6628, [email protected].

    SUPPLEMENTARY INFORMATION:

    1. On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (NOPR) in this proceeding.1 For the reasons set forth below, we are exercising our discretion to withdraw the NOPR and terminate this rulemaking proceeding. The NOPR is superseded by the new proposal reflected in the concurrently issued NOPR on Data Collection for Analytics and Surveillance and Market-Based Rate Purposes (Data Collection NOPR).2

    1Collection of Connected Entity Data from Regional Transmission Organizations and Independent System Operators, FERC Stats. & Regs. ¶ 32,711 (2015).

    2Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, 156 FERC¶ 61,045 (2016).

    2. In the NOPR, the Commission proposed to amend its regulations to require each regional transmission organization and independent system operator to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would: (i) Identify the market participants by means of a common alpha-numeric identifier; (ii) list their “Connected Entities,” which included entities that have certain ownership, employment, debt, or contractual relationships with the market participants; and (iii) describe in brief the nature of the relationship of each Connected Entity. The Commission proposed to collect such information to assist with its screening and investigative efforts to detect market manipulation. The Commission has since developed a new proposal, as reflected in the concurrently issued Data Collection NOPR, which is substantially narrower than the proposal in the instant NOPR, and streamlines and consolidates the collection of market-based rate information with new information proposed to be collected for analytics and surveillance purposes. Among other things, in the Data Collection NOPR, the Commission proposes to require market-based rate sellers and certain market participants in Commission-jurisdictional organized electric markets to submit certain, defined information about their financial and legal connections to other entities. While the Data Collection NOPR proposes to collect similar information to that which was proposed in the NOPR in this proceeding, this new proposal presents substantial revisions, thereby superseding the proposal in the instant NOPR.

    3. The Commission therefore withdraws the NOPR and terminates this rulemaking proceeding.

    By direction of the Commission.

    Dated: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17853 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM16-3-000] Ownership Information in Market-Based Rate Filings; Withdrawal AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Withdrawal of notice of proposed rulemaking and termination of rulemaking proceeding.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is withdrawing its proposal to amend its regulations to clarify the scope of ownership information that sellers seeking to obtain or retain market-based rate authority must provide. The Commission is also concurrently issuing a Notice of Proposed Rulemaking in Docket No. RM16-17-000, which supersedes this proposal.

    DATES:

    The notice of proposed rulemaking published on December 24, 2015, at 80 FR 80302, is withdrawn as of July 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Dougherty (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8851, [email protected]. Laura Chipkin (Legal Information), Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8615, [email protected]. SUPPLEMENTARY INFORMATION:

    1. On December 17, 2015, the Commission issued a Notice of Proposed Rulemaking (NOPR) in this proceeding.1 For the reasons set forth below, we are exercising our discretion to withdraw the NOPR and terminate this rulemaking proceeding.

    1Ownership Information in Market-Based Rate Filings, FERC Stats & Regs. ¶ 32,713 (2015).

    2. In the NOPR, the Commission proposed to amend its regulations to clarify the scope of ownership information that sellers seeking to obtain or retain market-based rate authority must provide. The Commission has since developed a new proposal, as reflected in a concurrently issued NOPR (Data Collection NOPR),2 to streamline and consolidate the collection of market-based rate (MBR) information with new information proposed to be collected for analytics and surveillance purposes. Among other things, in the Data Collection NOPR, the Commission proposes to change certain aspects of the substance and format of information submitted for MBR purposes, thereby superseding the proposed clarifications in the instant NOPR.

    2Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, 156 FERC ¶ 61,045 (2016).

    3. The Commission therefore withdraws the NOPR and terminates this rulemaking proceeding.

    By the Commission.

    Issued: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17856 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 33 [EPA-HQ-OA-2006-0278; FRL-9946-26-OA] RIN 2090-AA40 Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance Agreements AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    Environmental Protection Agency (EPA) is proposing to amend the Disadvantaged Business Enterprise (DBE) program. These proposed amendments will improve the practical utility of the program, minimize burden, and clarify requirements that have been the subject of questions from recipients of EPA financial assistance and from disadvantaged business enterprises. These revisions are in accordance with the requirements of the Federal laws that govern the EPA DBE program.

    DATES:

    Comments must be received on or before August 29, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OA-2006-0278, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Teree Henderson, Office of the Administrator, Office of Small Business Programs (mail code: 1230A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-566-2222; fax number: 202-566-0548; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Why is EPA issuing this proposed rule?

    The Agency has published a direct final rule in the “Rules and Regulations” section of this Federal Register, approving the DBE program revisions, because EPA views the revisions as noncontroversial and anticipates no adverse comment. The Agency provided reasons for the approval and additional supplementary information in the preamble to the direct final rule. If EPA receives no adverse comment, the Agency will not take further action on this proposed rule. If EPA receives adverse comment, the Agency will withdraw the direct final rule and it will not take effect. The EPA would then address all public comments in any subsequent final rule based on this proposed rule. The EPA does not intend to institute a second comment period on this action.

    Any parties interested in commenting must do so at this time. For further information, please contact the persons in the FOR FURTHER INFORMATION CONTACT section of this document.

    List of Subjects in 40 CFR Part 33

    Environmental protection, Grant programs.

    Dated: July 15, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-17509 Filed 7-27-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2013-0004: FRL-9949-69-Region 10] Partial Approval and Partial Disapproval of Attainment Plan for Oakridge, Oregon PM2.5 Nonattainment Area AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    On December 12, 2012, the Oregon Department of Environmental Quality (ODEQ) submitted, on behalf of the Governor of Oregon, a State Implementation Plan (SIP) submission to address violations of the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter of less than or equal to a nominal 2.5 micrometers in diameter (PM2.5) for the Oakridge PM2.5 nonattainment area (2012 SIP submission). The Lane Regional Air Protection Agency (LRAPA) in coordination with ODEQ developed the 2012 SIP submission for purposes of attaining the 2006 24-hour PM2.5 NAAQS. On February 22, 2016, the ODEQ withdrew certain provisions of the 2012 SIP submission (2016 SIP withdrawal). The Environmental Protection Agency (EPA) has evaluated whether the remaining portions of the Oakridge 2012 SIP submission meet the applicable Clean Air Act (CAA) requirements. Based on this evaluation, the EPA is proposing to partially approve and partially disapprove the remaining portions of the 2012 SIP submission.

    DATES:

    Comments must be received on or before August 29, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2013-0004 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information that is restricted by statute from disclosure. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Christi Duboiski at (360) 753-9081, [email protected], or the above EPA, Region 10 address.

    SUPPLEMENTARY INFORMATION:

    Throughout this document, wherever “we”, “us” or “our” are used, it is intended to refer to the EPA.

    Table of Contents I. Background for the EPA's Proposed Action A. History of the PM2.5 NAAQS B. January 4, 2013 D.C. Circuit Court Decision Regarding PM2.5 Implementation Under Subpart 4 C. CAA PM2.5 Moderate Area Nonattainment SIP Requirements II. Content of 2012 SIP Submission and the EPA's Evaluation III. Consequences of Disapproved SIP Provisions IV. The EPA's Proposed Action V. Statutory and Executive Order Reviews I. Background for the EPA's Proposed Action A. History of the PM2.5 NAAQS

    On July 18, 1997, the EPA promulgated the 1997 PM2.5 NAAQS, including annual standards of 15.0 µg/m3 based on a 3-year average of annual mean PM2.5 concentrations, and 24-hour (or daily) standards of 65 µg/m3 based on a 3-year average of the 98th percentile of 24-hour concentrations (62 FR 38652). The EPA established the 1997 PM2.5 NAAQS based on significant evidence and numerous health studies demonstrating the serious health effects associated with exposures to PM2.5. To provide guidance on the CAA requirements for state and tribal implementation plans to implement the 1997 PM2.5 NAAQS, the EPA promulgated the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) (hereinafter, the “2007 PM2.5 Implementation Rule”).

    On October 17, 2006, the EPA strengthened the 24-hour PM2.5 NAAQS to 35 µg/m3 and retained the level of the annual PM2.5 standard at 15.0 µg/m3 (71 FR 61144). Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to promulgate designations for areas throughout the United States; this designation process is described in section 107(d)(1) of the CAA. On November 13, 2009, the EPA designated areas across the United States with respect to the revised 2006 24-hour PM2.5 NAAQS (74 FR 58688). In that November 2009 action, the EPA designated Oakridge, Oregon, and a small surrounding area as nonattainment for the 2006 24-hour PM2.5 NAAQS (Oakridge NAA), requiring Oregon to prepare and submit to the EPA an attainment plan for the Oakridge NAA to meet the 2006 24-hour PM2.5 NAAQS. On March 2, 2012, the EPA issued “Implementation Guidance for the 2006 24-Hour Fine Particulate (PM2.5) National Ambient Air Quality Standards (NAAQS)” to provide guidance on the development of SIPs to demonstrate attainment with the 24-hour standards (March 2012 Implementation Guidance). The March 2012 Implementation Guidance explained that the overall framework and policy approach of the 2007 PM2.5 Implementation Rule provided effective and appropriate guidance on statutory requirements for the development of SIPs to attain the 2006 24-hour PM2.5 NAAQS. Accordingly, the March 2012 Implementation Guidance instructed states to rely on the 2007 PM2.5 Implementation Rule in developing SIPs to demonstrate attainment with the 2006 24-hour PM2.5 NAAQS.

    B. January 4, 2013 D.C. Circuit Court Decision Regarding PM2.5 Implementation Under Subpart 4

    On January 4, 2013, the D.C. Circuit Court issued a decision in Natural Resources Defense Council v. EPA, 706 F.3d 428, holding that the EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of Part D of Title I of the CAA (subpart 1), rather than the particulate-matter-specific provisions of subpart 4 of Part D of Title I (subpart 4). The Court did not vacate the 2007 PM2.5 Implementation Rule but remanded the rule with instructions for the EPA to promulgate new implementation regulations for the PM2.5 NAAQS in accordance with the requirements of subpart 4. On June 6, 2013, consistent with the Court's remand decision, the EPA withdrew its March 2012 Implementation Guidance which relied on the 2007 PM2.5 Implementation Rule to provide guidance for the 2006 24-hour PM2.5 NAAQS.

    Prior to the January 4, 2013 NRDC decision, states had worked towards meeting the air quality goals of the 2006 PM2.5 NAAQS in accordance with the EPA regulations and guidance derived from subpart 1 of Part D of Title I of the CAA. The EPA considered this history in issuing the PM2.5 Subpart 4 Nonattainment Classification and Deadline Rule (79 FR 31566, June 2, 2014) that identified the initial classification under subpart 4 for areas currently designated nonattainment for the 1997 and/or 2006 PM2.5 NAAQS as “moderate” nonattainment areas. The final rule also established December 31, 2014 as the new deadline for the states to submit any additional SIP submissions related to attainment for the 1997 or 2006 PM2.5 NAAQS.

    The ODEQ submitted an attainment plan for the Oakridge NAA on December 12, 2012. The plan included measures intended to demonstrate attainment of the 2006 PM2.5 NAAQS by December 31, 2014. In this notice the EPA evaluates the State's existing attainment plan submission for the 2006 PM2.5 NAAQS to determine whether it meets the applicable statutory requirements. The applicable statutory requirements include not only the applicable requirements of subpart 1, but also the applicable requirements of subpart 4. This interpretation is consistent with the NRDC Court's decision that the EPA must implement the PM2.5 NAAQS consistent with the requirements of subpart 4.

    C. CAA PM2.5 Moderate Area Nonattainment SIP Requirements

    With respect to the requirements for attainment plans for the PM2.5 NAAQS, the EPA notes that the general nonattainment area planning requirements are found in subpart 1, and the moderate area planning requirements specifically for particulate matter are found in subpart 4. The EPA has a longstanding general guidance document that interprets the 1990 amendments to the CAA commonly referred to as the “General Preamble” (57 FR 13498, April 16, 1992). The General Preamble addresses the relationship between subpart 1 and subpart 4 requirements and provides recommendations to states for meeting statutory requirements for particulate matter attainment planning. Specifically, the General Preamble explains that requirements applicable to moderate area attainment plan SIP submissions are set forth in subpart 4, but such SIP submissions must also meet the general attainment planning provisions in subpart 1, to the extent these provisions “are not otherwise subsumed by, or integrally related to,” the more specific subpart 4 requirements (57 FR 13538). Additionally, the EPA proposed the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements rule (80 FR 15340, March 23, 2015), to clarify our interpretations of the statutory requirements that apply to moderate and serious PM2.5 nonattainment areas (NAAs) under subparts 1 and 4.

    The CAA requirements of subpart 1 for attainment plans include: (i) The section 172(c)(1) requirements for reasonably available control measures (RACM), reasonably available control technology (RACT) and attainment demonstrations; (ii) the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); (iii) the section 172(c)(3) requirement for emissions inventories; (iv) the section 172(c)(5) requirements for a nonattainment new source review (NSR) permitting program; and (v) the section 172(c)(9) requirement for contingency measures.

    The CAA subpart 4 requirements for moderate areas are generally comparable with the subpart 1 requirements and include: (i) The section 189(a)(1)(A) NSR permit program requirements; (ii) the section 189(a)(1)(B) requirements for attainment demonstration; (iii) the section 189(a)(1)(C) requirements for RACM; and (iv) the section 189(c) requirements for RFP and quantitative milestones. In addition, under subpart 4 the moderate area attainment date is as expeditiously as practicable but no later than the end of the 6th calendar year after designation.

    II. Content of 2012 SIP Submission and the EPA's Evaluation

    The LRAPA, in coordination with ODEQ, developed the 2012 SIP submission for the Oakridge NAA that was subsequently adopted by the State and submitted by the ODEQ to the EPA. The following describes the relevant contents of the 2012 SIP submission, the 2016 SIP withdrawal, and the EPA's evaluation of the remaining SIP provisions.

    The 2012 SIP submission included provisions that address the requirements of an attainment plan for a moderate PM2.5 nonattainment area including RACT/RACM, emissions inventories, modeling, attainment demonstration, transportation conformity and motor vehicle emissions budgets, RFP and contingency measures.

    The 2016 SIP withdrawal included the State's withdrawal of the following 2012 SIP submission provisions:

    • OAR 340-200-0040—General Air Pollution Procedures and Definitions; the adopted and amended version of the rules and Redline/strikeout version of the adopted and amended rules.

    • The LRAPA's Title 29—Designation of Air Quality Areas; the adopted and amended version of the rules and redline/strikeout version of the adopted and amended rules except:

    ○ 29-0010(10)—Oakridge PM2.5 Nonattainment Area definition ○ 29-0030 Designation of Nonattainment Areas • Title 38—Major New Source Review • Smoke Management Directive

    The state withdrew OAR-340-200-0040, portions of the LRAPA Title 29, Title 38 and the Smoke Management Directive because they were not intended to be included in the SIP submission.

    State Nonattainment Area Description and Designation

    The 2012 SIP submission contained revised portions of the LRAPA Title 29, “Designation of Air Quality Areas” (29-0010(10) and 29-0030) adopted on October 18, 2012 that identify and describe the Oakridge PM2.5 area and lists the Oakridge PM2.5 area as nonattainment. The area described as the Oakridge PM2.5 nonattainment area in the LRAPA Title 29 is consistent with the federal nonattainment area designated at 40 CFR 81.338. We propose to approve the State's area description and listing as nonattainment.

    Emissions Inventory

    Section 172(c)(3) of the CAA requires the development of emissions inventories for nonattainment areas. In addition, the planning and associated modeling requirements set forth in CAA section 189(a) make the development of an accurate and up-to-date emissions inventory a critical element of any viable attainment plan. EPA guidance specifies the best practices for developing emission inventories for PM2.5 nonattainment areas (see “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations”). The 2012 SIP submission contains planning inventories of emission sources and emission rates for the base year of 2008 and the projected attainment year of 2014. The LRAPA chose the year 2008 as the base year because it is one of the three years used to designate the area as nonattainment as well as the middle year of the five year period, 2006-2010, used for the determining the base year design value. Additionally, the LRAPA determined that high-quality emission information was already available from the National Emission Inventory for 2008. The LRAPA developed the base year emissions inventory for the nonattainment area. Table 1 provides information on the worst case winter season day, most relevant to attainment planning, as well as the typical winter season day. Annual emissions for primary PM2.5, NOX, SO2, VOC, and NH3 can be found in the docket in the LRAPA's SIP submission. The LRAPA determined the precursor emissions for a typical winter day accounted for less than 6 percent of the total PM. The 2012 SIP submission listed total emissions of direct PM2.5 on a typical winter day at 525 pounds per day (lbs/day). The source categories contributing to the typical winter day total were identified as follows: Area sources, primarily RWC, emit 479 pounds per day (lbs/day); mobile sources, including railroads and re-entrained road dust emit 44.7 lbs/day; and permitted stationary sources emit 0.5 lbs/day.

    Table 1—2008 Oakridge; Typical Season Day and Worst-Case Day PM2.5 Emissions [lbs/day] Source sector PM2.5 lbs/per day Typical season day Worst case day Permitted Point 0.5 0.9 Stationary Area 479.5 480 Onroad 38.7 65.1 Nonroad 6.0 6.0 Total 525 552

    The EPA has reviewed the base year emission inventory and believes it satisfies the CAA section 172(c)(3) requirement for a comprehensive, accurate and current inventory of actual 2008 emissions of the relevant pollutants in the Oakridge NAA. Thus, the EPA proposes to approve the base year emission inventory in the 2012 SIP submittal.

    2014 Projected Attainment Inventory for the Nonattainment Area

    The 2012 SIP submittal included a projected 2014 attainment year emissions inventory that supported attainment by December 2014. The 2014 attainment year emissions inventory included the same source categories as the 2008 base year. Emissions in the 2014 attainment year inventory were adjusted to account for emissions increases due to anticipated growth between 2008 and 2014 and emissions decreases from implementation of the control strategies identified in the RACM analysis.

    Due to the fact that the Oakridge NAA failed to attain the PM2.5 NAAQS by the December 31, 2014 attainment date projected in the 2012 SIP submission, the EPA presumes that the attainment year emission inventory was not accurate. The quality-assured and certified ambient air monitoring data from the Willamette Activity Center monitoring site from 2012 through 2014, yields a design value of 40 µg/m3 and confirms that the area did not attain the 2006 24-hour PM2.5 NAAQS by December 31, 2014. Thus, the EPA proposes to disapprove the projected 2014 attainment year inventory in the 2012 SIP submission.

    Federal Requirement for RACM, Including RACT

    The general SIP planning requirements for nonattainment areas under subpart 1 include section 172(c)(1), which requires implementation of all RACM (including RACT). The language of section 172(c) requires that attainment plans provide for the implementation of RACM (including RACT) to provide for attainment of the NAAQS. Therefore, what constitutes RACM and RACT is related to what is necessary for attainment in a given area.

    Subpart 4 also requires states to develop attainment plans that evaluate potential control measures and impose RACM and RACT on sources within a moderate nonattainment area that are necessary to expeditiously attain the NAAQS. Section 189(a)(1)(C) requires that moderate nonattainment plans provide for implementation of RACM and RACT no later than four years after the area is designated as nonattainment. As with subpart 1, the terms RACM and RACT are not defined within subpart 4. Nor do the provisions of subpart 4 specify how states are to meet the RACM and RACT requirements. However, the EPA's longstanding guidance in the General Preamble provides recommendations for determining which control measures constitute RACM and RACT for purposes of meeting the statutory requirements of subpart 4. 57 FR 13540-41.

    For both RACM and RACT, the EPA notes that an overarching principle is that if a given control measure is not needed to attain the relevant NAAQS in a given area as expeditiously as practicable, then that control measure would not be required as RACM or RACT because it would not be reasonable to impose controls that are not in fact needed for attainment purposes. Accordingly, a RACM and RACT analysis is a process to identify emissions sources, evaluate potential emissions controls, and impose those control measures and technologies that are reasonable and necessary to bring the area into attainment as expeditiously as practicable, but by no later than the applicable attainment date for the area. However, the EPA has long-applied a policy that states evaluate the combined effect of reasonably available control measures that were not necessary to demonstrate attainment by the statutory attainment, and if they collectively advance the attainment date by at least one-year the measures should be adopted to satisfy the statutory requirement that attainment be as expeditious as practicable (80 FR 15369).

    Identification of RACM and RACT

    The LRAPA provided a RACM and RACT analysis in Appendix J of the 2012 SIP submission. The submission explained that residential wood combustion (RWC) sources (e.g., woodstoves, fireplaces, pellet stoves) account for 86% of emissions on worst-case winter days when exceedance of the NAAQS is most likely to occur. The other contributing sources were identified as road dust (5%), transportation (7.9%) and industrial and other unidentified area sources (1.1%). The LRAPA also conducted a speciation analysis, included in Appendix E of the 2012 SIP submission, which demonstrated that 96% of total particulate matter is from organic and elemental carbon, with significantly smaller amounts of secondary inorganic aerosols including nitrate (0.4%), sulfate (1%) and ammonium (.03%). Based on these and other analyses, the LRAPA concluded that RWC was the major contributor to PM2.5 concentrations on worst-case winter days and focused its RACM analysis on this source category.

    Emissions from RWC for winter home heating has been a long-standing air pollution problem for the Oakridge NAA, first identified when EPA designated the area nonattainment for the PM10 NAAQS. The Oakridge nonattainment area PM10 SIP adopted a control strategy that specifically addressed emissions from RWC (64 FR 12751). In the 2012 SIP submission for the 2006 PM2.5 NAAQS, the LRAPA likewise focused on RWC emissions and described a suite of control measures that included measures in effect from the previous approved PM10 attainment plan as well as new measures specifically intended to address PM2.5. While the LRAPA described several control measures in the 2012 PM2.5 SIP submission, it only relied on emission reductions from measures implemented after the base year of 2008. These measures are:

    • RWC curtailment during adverse meteorological conditions and air quality advisories are issued: Oakridge City ordinance 889;

    • Motor vehicle emission reductions due to federal emissions requirements; and,

    • Woodstove change outs of uncertified stoves to EPA certified stoves since 2008.

    In its RACT analysis, the LRAPA identified two industrial stationary sources in the nonattainment area, a rock crusher and ready-mix concrete plant, which are described as minor sources of direct and precursor emissions for purposes of PM2.5. The LRAPA asserts that these two small sources together emit less than one ton per year of PM2.5 emissions and contribute less than 1% to the 2008 base year emission inventory. The EPA National Emission Inventory data for the Oakridge NAA as presented in Appendix D of the 2012 SIP submission (attachment 3.3d, pages 207-210) identified precursor emissions for the base year of 2008. That data show there are no precursor emissions from industrial sources in the Oakridge NAA.

    In the 2012 SIP submission, the LRAPA reviewed the two stationary sources and determined that the air pollution control technology installed on these sources are the current standard for the industry. The rock crusher controls emissions of PM2.5 using water spray. The concrete batch plant uses baghouse controls to reduce PM2.5 emissions. The SIP submission did not propose or contain any additional control technologies for purposes of meeting RACT based on the existing particulate matter control measures and the minimal contribution to PM2.5 concentrations from the two small stationary sources. Operating permits for these two sources were not included in the 2012 SIP submission.

    The EPA's Evaluation of RACM Including RACT

    The measures selected and implemented by the LRAPA to meet RACM including RACT requirements did not provide for attainment of the PM2.5 NAAQS by the attainment date in the 2012 SIP submission of December 31, 2014. In addition, the RWC curtailment program included in the 2012 SIP submission, identified as Oakridge City Ordinance 889, was rescinded and is no longer in effect. A new replacement ordinance, Oakridge City Ordinance 914 has not yet been submitted to EPA for incorporation into the SIP. Based on the foregoing, the suite of control measures in the 2012 SIP submission do not represent RACM and RACT and fail to meet the requirements of section 172(c)(1) and section 189(a)(1)(C) of the CAA. Accordingly, we are proposing to disapprove the RACM and RACT provisions of the 2012 SIP submission.

    Attainment Demonstration and Modeling

    Section 189(a)(1)(B) requires that a PM2.5 moderate area SIP contain either a demonstration that the plan will provide for attainment by the applicable attainment date, or a demonstration that attainment by such date is impracticable. In the attainment demonstration of the 2012 SIP submission, the LRAPA described how the attainment plan would provide the emissions reductions needed to bring the Oakridge NAA into attainment with the 2006 24-hour PM2.5 NAAQS no later than December 31, 2014.

    All attainment demonstrations must project air quality below the standard using air quality modeling. The ODEQ submitted a modeled demonstration that is consistent with the recommendations contained in the EPA's modeling guidance document “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze” (EPA-454/B-07-002, April 2007) and the June 28, 2011, memorandum from Tyler Fox to Regional Air Program Managers, “Update to the 24-hour PM2.5 Modeled Attainment Test.” States should base modeling on national (e.g., EPA), regional (e.g., Western Regional Air Partnership) or local modeling, or a combination thereof, if appropriate. The April 2007 guidance indicates that states should review supplemental analyses, in combination with the modeling analysis, in a “weight of evidence” assessment to determine whether each area is likely to achieve timely attainment.

    The LRAPA used a proportional “roll-forward” model to project air quality levels into the future. The linear model the LRAPA used for the Oakridge NAA considered the concentrations of individual chemical species analyzed from the PM2.5 filters. The model does not account for secondary chemistry because inert species comprise more than 97% of the total PM2.5 in the Oakridge NAA. The EPA believes that the roll-forward model is an appropriate approach for the Oakridge NAA due to the limited number of emission sources and source categories, the limited contribution of secondary aerosol, and the even dispersal of emission sources across the area. The LRAPA determined the emission changes of each species from the base year to a future attainment year based on emissions growth or emissions reduction from trends in technology and population, and considering both national control measures (such as Tier 2 gasoline vehicle standards), and control measures included as part of the SIP submission. These emission changes and resulting changes in ambient chemical species levels were summed to estimate future year projected PM2.5 concentrations.

    The attainment demonstration starts with estimating the baseline design value for PM2.5. The procedure for its calculation is presented in Appendix N to 40 CFR 50, “Interpretation of the National Ambient Air Quality Standards for Particulate Matter,” EPA Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for O3, PM2.5, and Regional Haze,” and the June 28, 2011, memorandum from Tyler Fox to Regional Air Program Managers, “Update to the 24-hour PM2.5 Modeled Attainment Test.” Ambient PM2.5 concentrations from 2006 to 2010 were used to calculate a baseline design value of 39.5 µg/m3. Detailed methods on the baseline design value calculation are in Appendix G of the 2012 SIP submission.

    Quality-assured and certified ambient air monitoring data from the Willamette Activity Center monitoring site from 2012 through 2014, yields a design value of 40 µg/m3 and confirms that the area did not attain the 2006 24-hour PM2.5 NAAQS by December 31, 2014. Therefore, EPA is proposing to disapprove the attainment demonstration portion of the 2012 SIP submission because the area failed to attain by the projected attainment date.

    Reasonable Further Progress and Quantitative Milestones

    For PM2.5 nonattainment areas, two statutory provisions apply regarding RFP and quantitative milestones. First, under subpart 1, CAA section 172(c)(2) requires attainment plans to provide for RFP, which is defined in CAA section 171(l) as “such annual incremental reductions in emissions of the relevant air pollutant as are required by [Part D of Title I] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” Reasonable further progress is a requirement to assure that states make steady, incremental progress toward attaining air quality standards, rather than deferring implementation of control measures and thereby emission reductions until before the date by which the standard is to be attained. Second, CAA section 189(c) requires that attainment plans for the PM2.5 NAAQS to include “quantitative milestones which are to be achieved every 3 years until the area is redesignated to attainment and which demonstrate reasonable further progress . . . toward attainment by the applicable date.”

    In the 2012 SIP submission, the LRAPA did not address RFP and quantitative milestone requirements. The 2012 SIP submission projected attainment of the 2006 PM2.5 NAAQS within five years of designation, or by December 31, 2014. However, the Oakridge NAA failed to attain by December 31, 2014. The attainment plan control measures therefore did not achieve the necessary emission reductions that would have been necessary to demonstrate RFP or meet quantitative milestones, assuming such requirements were addressed in the 2012 SIP submittal. Accordingly, the EPA is proposing to disapprove the RFP and quantitative milestones elements for the 2012 SIP submission.

    Contingency Measures

    Section 172(c)(9) of the CAA requires that an attainment plan provide for implementation of specific contingency measures in the event that an area fails to attain a standard by its applicable attainment date, or fails to meet RFP. These measures should consist of other available control measures not included in the control strategy and must be fully adopted rules or measures that take effect without any further action by the state or the EPA. Contingency measures should also contain trigger mechanisms and an implementation schedule, and should provide for emission reductions equivalent to one year's worth of RFP (57 FR 13498).

    While the LRAPA discussed contingency measures in the 2012 SIP submission, the ordinance enacting the contingency measures was not included in the SIP submission. Because the regulatory text of the contingency measures was not included in the 2012 SIP submission, the EPA is proposing to disapprove the 2012 SIP submission with respect to the contingency measure requirements of the CAA.

    Motor Vehicle Emissions Budget

    Section 176(c) of the CAA requires federal actions in nonattainment and maintenance areas to “conform to” the goals of SIPs. This means that such actions will not cause or contribute to violations of a NAAQS, worsen the severity of an existing violation, or delay timely attainment of any NAAQS or any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, the EPA, and the FHWA and the FTA to demonstrate that their long-range transportation plans and transportation improvement programs (TIPs) conform to applicable SIPs. This demonstration is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (budgets) contained in a SIP.

    For budgets to be approvable, they must meet, at a minimum, the EPA's adequacy criteria (40 CFR 93.118(e)(4)). One of the adequacy criteria requires that motor vehicle emissions budgets when considered together with all other emissions sources, are consistent with the applicable requirements for reasonable further progress, attainment or maintenance (40 CFR 93.118(e)(4)(iv)). In this case the applicable requirement is attainment of the 2006 24-hour PM2.5 NAAQS. The Oakridge NAA failed to attain the 2006 24-hour PM2.5 NAAQS by December 31, 2014, and the submitted motor vehicle emissions budgets therefore do not meet the aforementioned adequacy criterion. Accordingly, EPA is proposing to disapprove the submitted budgets.

    III. Consequences of a Disapproved SIP

    This section explains the consequences of a disapproval of a SIP under the CAA. The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if a state fails to submit and the EPA approve a plan revision that corrects the deficiencies identified by the EPA in its disapproval.

    The Act's Provisions for Sanctions

    If the EPA finalizes disapproval of a required SIP submission, such as an attainment plan submission, or a portion thereof, CAA section 179(a) provides for the imposition of sanctions unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP submission, or portion therefore. Under EPA's sanctions regulations, 40 CFR 52.31, the first sanction imposed would be 2:1 offsets for sources subject to the new source review requirements under section 173 of the Act. If the state has still failed to submit a SIP submission to correct the identified deficiencies for which the EPA proposes full or conditional approval 6 months after the first sanction is imposed, the second sanction will apply. The second sanction is a prohibition on the approval or funding certain highway projects.1

    1 On April 1, 1996 the US Department of Transportation published a notice in the Federal Register describing the criteria to be used to determine which highway projects can be funded or approved during the time that the highway sanction is imposed in an area. (See 61 FR 14363).

    Federal Implementation Plan Provisions That Apply if a State Fails To Submit an Approvable Plan

    In addition to sanctions, if the EPA finds that a state failed to submit the required SIP revision or finalizes disapproval of the required SIP revision, or a portion thereof, the EPA must promulgate a FIP no later than 2 years from the date of the finding if the deficiency has not been corrected within that time period.

    Ramifications Regarding Conformity

    One consequence if EPA finalizes disapproval of a control strategy SIP submission is a conformity freeze.2 If we finalize the disapproval of the attainment demonstration SIP without a protective finding, a conformity freeze will be in place as of the effective date of the disapproval (40 CFR 93.120(a)(2)).3 The Oakridge NAA is an isolated rural area as defined in the transportation conformity rule (40 CFR 93.101). As such it does not have a metropolitan planning organization (MPO), and there is no long range transportation plan or TIP that would be subject to a freeze. However the freeze does mean that no projects in the Oakridge NAA may be found to conform until another attainment demonstration SIP is submitted and the motor vehicle emissions budgets are found adequate or the attainment demonstration is approved.

    2 Control strategy SIP revisions as defined in the transportation conformity include reasonable further progress plans and attainment demonstrations (40 CFR 93.101).

    3 EPA would give a protective finding if the submitted control strategy SIP contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the implementation plan revision was submitted, such as reasonable further progress or attainment (40 CFR 93.101 and 93.120(a)(2) and (3)). The submitted attainment plan for the Oakridge NAA does not contain all necessary controls to attain the 2006 24-hour PM2.5 NAAQS and therefore is not eligible for a protective finding.

    IV. The EPA's Proposed Action Proposed Approval

    We propose to approve the following elements of the 2012 SIP submission:

    • Description of the Oakridge NAA and listing as nonattainment, and

    • The base year 2008 emission inventory to meet the section 172(c)(3) requirement for emissions inventories.

    Proposed Disapproval

    We propose to disapprove the following elements of the 2012 SIP submission:

    • The attainment year emission inventory to meet the section 172(c)(3) requirement for emissions inventories,

    • the section 172(c)(1) requirement for reasonably available control measures (RACM), including reasonably available control technology (RACT),

    • the section 189(a)(1)(B) requirement for an attainment demonstration,

    • Transportation conformity and MVEB,

    • Section 172(c)(2) and section 189(c) requirements for RFP and quantitative milestones, and

    • Section 172(c)(9) requirement for contingency measures.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

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

    Dated: July 18, 2016. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10.
    [FR Doc. 2016-17714 Filed 7-27-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 720, 721, and 723 [EPA-HQ-OPPT-2014-0650; FRL-9944-47] RIN 2070-AJ94 Significant New Uses of Chemical Substances; Updates to the Hazard Communication Program and Regulatory Framework; Minor Amendments to Reporting Requirements for Premanufacture Notices AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    EPA is proposing changes to the existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the Occupational Safety and Health Administration's (OSHA) Hazard Communications Standard (HCS), which are proposed to be cross referenced, and with changes to the OSHA Respiratory Protection Standard and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA is also proposing changes to the significant new uses of chemical substances regulations based on issues that have been identified by EPA and issues raised by public commenters for Significant New Use Rules (SNURs) previously proposed and issued under these regulations. Additionally, EPA is proposing a minor change to reporting requirements for premanufacture notices (PMNs) and other TSCA section 5 notices. EPA expects these changes to have minimal impacts on the costs and burdens of complying, while updating the significant new use reporting requirements to assist in addressing any potential effects to human health and the environment.

    DATES:

    Comments must be received on or before September 26, 2016.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2014-0650, 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 Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand deliver 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.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Jim Alwood, Chemical Control Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-8974; email address: [email protected]

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

    SUPPLEMENTARY INFORMATION: I. Executive Summary A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture (defined by TSCA to include import), process, or use chemical substances subject to regulations in 40 CFR part 721. 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:

    • Manufacturers or processors of chemical substances (NAICS codes 325 and 324), e.g., chemical manufacturing, and petroleum and coals manufacturing.

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

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Such rules are called “significant new use rules” (SNURs). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). Section 5(a)(1)(A) of TSCA requires persons to notify EPA at least 90 days before manufacturing a new chemical substance for commercial purposes (under TSCA manufacture includes import). Section 3(9) of TSCA defines a “new chemical substance” as any substance that is not on the TSCA Inventory of Chemical Substances compiled by EPA under section 8(b) of TSCA.

    C. What action is the Agency taking?

    EPA is proposing changes to general requirements for SNURs in 40 CFR part 721, Significant New Uses of Chemical Substances. Most of the proposed changes are changes to the standard significant new uses for new chemical SNURs identified in subpart B which apply to chemical substances when they are cited in subpart E. Other proposed changes are procedural changes to the general provisions in subpart A that apply to all SNURs. EPA is also clarifying in the preamble of this proposed rule some definitions contained in 40 CFR part 721 and proposing a minor change to reporting requirements for TSCA section 5 notices in 40 CFR parts 720.38, 720.45 and 723.50.

    D. Why is the Agency taking this action?

    Based on changes that have occurred for respiratory protection requirements since 1989, as codified in NIOSH regulations at 42 CFR part 84 and the OSHA standard at 29 CFR 1910.134, EPA is proposing changes to 40 CFR 721.63. In addition, based on the changes to 29 CFR 1910.1200, OSHA's modified Hazard Communication Standard (HCS) published March 26, 2012 (77 FR 17574) (Ref. 1), EPA is proposing changes to 40 CFR 721.72. EPA is also proposing other changes to 40 CFR part 721 subparts A and B and clarifying definitions contained in 40 CFR part 721. EPA is proposing these changes and making the clarifications based on its experience in issuing and administering over 2,800 SNURs. Many of the proposed changes are based on public comments received by EPA when proposing and issuing SNURs, and questions from the public regarding current SNUR requirements such as: Considering a hierarchy of controls before using personal protective equipment to control exposures; clarifying what use other than as described in the premanufacture notice referenced in subpart E of this part for the substance means under 40 CFR 721.80(j); allowing for removal in wastewater treatment when computing estimated surface water concentrations according to 40 CFR 721.91; and revising the bona fide procedure in 40 CFR 721.11 to include coverage of situations where the significant new use terms are confidential.

    E. What are the estimated incremental impacts of this action?

    There will be a very minor increase in the overall compliance burden and cost because of the modified requirements in 40 CFR parts 720, 721, and 723. The modified SNUR requirements will be compatible with the current hazard communication requirements under 29 CFR 1910.1200 and the respiratory protection requirements at 42 CFR part 84 and 29 CFR 1910.134. The modified SNUR requirements will also allow persons subject to a SNUR that has been previously issued to use the updated requirements of 40 CFR 721.63 and 721.72 without additional rulemaking.

    F. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    II. Background

    On July 27, 1989 (54 FR 31298; FRL-3504-6) (Ref. 2), EPA published a final rule, titled “Significant New Use Rules; General Provisions for New Chemicals Follow-up” that put into place an expedited process for issuing SNURs for certain new chemical substances. The process applies to new chemical substances for which EPA has issued TSCA section 5(e) consent orders and other new chemical substances for which no TSCA section 5(e) consent orders have been issued, but that may present risks to human health or the environment if exposures or releases are significantly different from those described in the PMN. EPA has issued over 2,800 new chemical SNURs using these standard significant new uses. The standard designations in the sections titled “Protection in the workplace” (40 CFR 721.63) and “Hazard communication program” (40 CFR 721.72) were modeled on OSHA and NIOSH regulations that were in force at the time the rule was issued in 1989.

    The July 27, 1989 final rule established subparts B, C, and D and amended subpart A of 40 CFR part 721. Subpart A contains definitions and general provisions that apply to all SNURs. In subpart B of 40 CFR part 721, EPA identified certain standard significant new uses that EPA regularly cites in new chemical SNURs. For example, EPA may consider use of a specific chemical substance to be a “significant new use” if the use does not meet requirements for protection in the workplace as described in 40 CFR 721.63(a)(1). EPA applies these standard significant new uses as appropriate when promulgating SNURs for a specific chemical substance. As explained in 40 CFR 721.50, these standard significant new use designations apply only when they are referenced as applying to a chemical substance listed in 40 CFR part 721 subpart E. Subpart C describes recordkeeping requirements for SNURs. As described in 40 CFR 721.100, these standard recordkeeping requirements apply only when they are referenced as applying to a chemical substance listed in 40 CFR part 721 subpart E. Subpart D describes an expedited process for issuing significant new use rules for new chemical substances and the process for the modification or revocation of significant new use requirements for new chemical substances. Subpart E lists significant new use and recordkeeping requirements for specific chemical substances.

    On March 29, 1995 (60 FR 16311; FRL-4291-9) (Ref. 3), EPA published an amended rule titled, “Amendment for Expedited Process to Issue Significant New Use Rules for Selected New Chemical Substances.” The rule amendment authorized EPA to use “significant new use” designations using expedited rulemaking procedures to promulgate SNURs for certain new chemical substances not subject to TSCA section 5(e) orders (referred to as non-section 5(e) SNURs). The amendment authorized EPA to include other designations, such as protection in the workplace and hazard communication, in non-section 5(e) SNURs promulgated via expedited rulemaking procedures.

    As explained in the March 29, 1995 final rule, a TSCA section 5(e) consent order applies only to the original PMN submitter who signs the consent order, while a SNUR applies to all other manufacturers and processors of the chemical substance. The reporting requirements of a non-section 5(e) SNUR apply to all manufacturers and processors of a chemical substance including the PMN submitter. The changes to subpart B in this proposed rule would make it possible for EPA to issue non-section 5(e) SNURs as direct final rules with the updated standard SNUR designations.

    How the different subparts of 40 CFR part 721 are used for new chemical SNURs and existing chemical SNURs are summarized in Table 1. New chemical SNURs are issued for certain chemical substances that have undergone PMN review. EPA typically utilizes subparts B, C, and D when issuing new chemical SNURs. Other SNURs including existing chemical SNURs may be issued for chemical substances either not on the TSCA Inventory or for those on the TSCA Inventory that typically have not undergone PMN review. EPA does not use subpart B or D for existing chemical SNURs but has applied the standard recordkeeping requirements in subpart C. The general requirements of subpart A apply to all SNURs unless they are modified in the significant new use requirements for a specific chemical substance in subpart E. Subpart E lists significant new use and recordkeeping for new and existing chemical substances.

    Table 1—Subparts Used for New Chemical SNURs and Other Chemical SNURs Regulation New chemical SNURs Other
  • chemical SNURs
  • Subpart A. General Provisions (§§ 721.1-721.47) X X Subpart B. Certain Significant New Uses (§§ 721.50-721.91): • § 721.63. Protection in the Workplace X • § 721.72. Hazard Communication Program X • § 721.80. Industrial, Commercial, and Consumer Activities X • § 721.85. Disposal X • § 721.90. Release to water X • § 721.91. Concentration of estimated surface water concentrations: Instructions X Subpart C. Recordkeeping Requirements (§§ 721.100-721.125) X X Subpart D. Expedited Process for issuing Significant New Use Rules for Selected Chemical Substances and Limitation or Revocation of Selected Significant New Use Rules (§§ 721.160-721.185) X Subpart E. Significant New Uses for Specific Chemical Substances (§§ 721.225-721.10829) * X X * revised for each published SNUR.

    EPA is proposing substantive changes or clarifying language in subparts A and B. The proposed changes in subpart A would affect all SNURs. The proposed changes in Subpart B may affect some previously issued new chemical SNURs already in subpart E and would affect future new chemical SNURs that would be issued using the changed terms in Subpart B. Unit III describes each proposed change and how the changes affect previously issued SNURs and SNURs that would be issued after the proposed rule becomes final. Not all of the more than 2,800 previously issued new chemical SNURs will be affected by the changes in Subpart B. For example, as described in the economic analysis for this proposed rule (Ref.13), per the EPA Chemical Data Report for Reporting Year 2011, 195 chemicals were reported in commerce and subject to new chemical SNURS. Only 60 of the 195 chemicals contained provisions for worker protection and/or hazard communication. This rule does not propose any changes to subparts C, D, or E.

    In March, 2012, OSHA modified its Hazard Communication Standard (HCS) to conform to the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals (GHS) to enhance the effectiveness of the HCS by ensuring that employees are apprised of the chemical hazards to which they may be exposed, and by reducing the incidence of chemical-related occupational illnesses and injuries. (Ref. 1) The GHS is an internationally harmonized system for classifying chemical hazards and developing labels and safety data sheets. It is a set of criteria and provisions that regulatory authorities can incorporate into existing systems, or use to develop new systems.

    The GHS allows a regulatory authority to choose the provisions that are appropriate to its sphere of regulation. This is referred to as the “building block approach.” The GHS includes all of the regulatory components, or building blocks, that might be needed for classification and 22 labeling requirements for chemicals in the workplace, transport, pesticides, and consumer products. The modified HCS adopted those sections of the GHS that are appropriate to OSHA's regulatory sector. For example, while the GHS includes criteria on classifying chemicals for aquatic toxicity, these provisions were not adopted for the HCS because OSHA does not have the regulatory authority to address environmental concerns. The building block approach also gives regulatory agencies the authority to select which classification criteria and provisions to adopt. OSHA adopted the classification criteria and provisions for labels and SDSs, because the current HCS covers these elements. As described in Unit III, EPA is also proposing to adopt some of the GHS criteria for hazard communication pertaining to aquatic toxicity.

    III. Summary of Proposed Rule

    As a result of changes to OSHA and NIOSH requirements, and other issues identified through EPA's experience issuing and administering SNURs, EPA is proposing several changes to the SNUR regulations in subparts A and B. EPA will describe each proposed change and the reason for proposing the change.

    1. Proposed Changes to 40 CFR 721.63, Protection in the Workplace

    Based on changes that have occurred in respiratory protection requirements since 1989, per the NIOSH regulation at 42 CFR part 84 and the OSHA standard at 29 CFR 1910.134, EPA is proposing changes to 40 CFR 721.63. In June 1995, NIOSH updated and modernized its Federal regulation for testing and certifying non-powered, air-purifying, and particulate-filter respirators (42 CFR part 84). The 42 CFR part 84 respirators have passed a more demanding certification test than older respirators (e.g., dust and mist [DM], dust, fume and mist [DFM], spray paint, pesticide) previously certified under 30 CFR part 11, and provide increased worker protection (Ref. 4). Because the 42 CFR part 84 test criteria simulate worst-case respirator use, NIOSH has encouraged discontinuing the use of particulate respirators certified under 30 CFR part 11 and switching to particulate respirators certified under 42 CFR part 84. However, non-powered particulate respirators that were approved under 30 CFR part 11 using the “old” labeling were allowed to be manufactured and sold until July 10, 1998. Specifically, distributors who purchased 30 CFR part 11 particulate filters and respirators prior to July 10, 1998, are able to sell them as “certified” until inventories of these products are depleted. Users who purchased such particulate filters and respirators from these distributors will be able to use them until their inventories are depleted or until the end of the shelf life or service life for these products.

    Additionally, in January 1998, OSHA's revised Respiratory Protection Standard (29 CFR 1910.134) replaced the respiratory protection standards adopted by OSHA in 1971 (Ref. 5). Subsequently, in August 2006, OSHA announced that it modified its Respiratory Protection Standard (29 CFR 1910.134) by adding definitions as well as maximum use concentration (MUC) and assigned protection factor (APF) requirements to 29 CFR 1910.134 (Ref. 6). Due to these changes, the respirators currently listed in 40 CFR 721.63 may no longer meet the current NIOSH/OSHA criteria for respirator selection and use.

    EPA is proposing to update language pertaining to respiratory protection requirements that is listed in 40 CFR 721.63(a)(4), (a)(5), and (a)(6) to be consistent with both OSHA and NIOSH requirements. In 40 CFR 721.63(a)(4) which requires that respirators be used in accordance with 30 CFR part 11, EPA is proposing to replace the reference to 30 CFR part 11 with a reference to 42 CFR part 84 to cite the most updated NIOSH regulation for testing and certifying respirators. Most manufacturers and processors are already subject to and complying with 42 CFR part 84. This change would apply to all previously issued SNURs that contain significant new use requirements pertaining to respiratory protection in that it will make clear that manufacturers and processors subject to current SNURs can follow updated respiratory protection requirements without triggering a SNUN requirement; and the updated language would be cited when issuing new SNURs as appropriate. EPA is proposing updated NIOSH-certified respirator language in 40 CFR 721.63(a)(5). EPA is currently citing the new respirator language in SNURs and has not been referencing the respirators currently listed in 40 CFR 721.63(a)(5). EPA intends to continue citing the new respirator language when issuing new SNURs during the pendency of this rulemaking. The proposed updates to 40 CFR 721.63(a)(5) would standardize the use of the new respirator language by allowing EPA to cross-reference the respirator language for new chemical SNURs rather than impose the respirator language on a case-by-case basis.

    EPA is proposing language that would allow persons subject to SNURs with older respirator requirements in 40 CFR 721.63(a)(5) already cited in subpart E to avoid triggering a SNUN requirement by continuing to use those respirators, if they are available. These are the 15 listed respirators in 40 CFR 721.63(a)(5)(i) through (xv). EPA is also proposing language in 40 CFR 721.63(a)(5) that would allow persons subject to the older respirator requirements in 40 CFR 721.63(a)(5)(i) through (xv) to use an equivalent respirator under the newer requirements provided that the APF of the new respirator is equal to or greater than the respirator cited in subpart E. EPA has included in the public docket a chart comparing the APF of the respirator classes in the current regulations with the corresponding older respirator requirements that can be consulted in order to determine availability of suitable substitutes (Ref. 7). The proposed language in 40 CFR 721.63(a)(6) also updates language for the airborne form of a chemical substance that would apply to the respiratory protection requirements in 40 CFR 721.63(a)(4). EPA would cite this language when issuing new SNURs.

    Any personal protection equipment requirements would be a minimum set of requirements so that users are encouraged to modernize (upgrade to next generation) protective equipment to include such features as an electronic chip to identify when personnel use and discontinue use of a respirator. The electronic chip also could monitor the condition and maintenance of the respirator. EPA is specifically requesting comments on the use of next generation respirators.

    EPA is also proposing a revision to 40 CFR 721.63 that would make it a significant new use not to implement a hierarchy of controls to protect workers. This revision would require persons subject to applicable SNURs to determine and use appropriate engineering and administrative controls before using personal protective equipment (PPE) for worker protection, similar to the requirements in OSHA standards at 29 CFR 1910.134(a)(1) and guidance in Appendix B to subpart I of 29 CFR 1910.

    This change is being proposed partly due to comments received on recently promulgated SNURs. In response to the proposed SNURs published in the Federal Register of December 28, 2011 (76 FR 81447) (FRL-9326-2) (Ref. 8), EPA received comments from 26 public submissions. Each of these comments generally stated that EPA's approach of exclusively identifying the absence of adequate personal protective equipment as a significant new use instead of engineering and administrative controls is not following the best occupational health and safety practices. The commenters suggested approaches that EPA could adopt. Several commenters identified the industrial hygiene “hierarchy of controls” approach for workplace health and safety, where elimination, substitution, engineering controls, and workplace or administrative controls should be implemented before use of personal protective equipment for worker protection. Several commenters stated that persons subject to SNURs should follow the OSHA requirements to use controls that are higher in the hierarchy of controls before requiring employees to use personal protective equipment. Some commenters suggested that EPA should specifically incorporate the OSHA requirements at 29 CFR 1910.134(a)(1) into each SNUR or modify standard requirements for SNURs at 40 CFR 721.63 to require a hierarchy of controls. Other commenters noted several publications or standards that either specifically recommend a hierarchy of controls or recommend an approach using engineering controls to prevent exposures before using personal protective equipment.

    In the final SNURs published on June 26, 2013 (78 FR 32810) (FRL-9390-6) (Ref. 9), EPA responded to the comments, agreeing that a hierarchy of controls should be applied and that PPE should be the last option to control exposures. EPA noted that its New Chemicals Exposure Limits language in TSCA section 5(e) consent orders already states that attempting to prevent exposures through higher controls in the hierarchy than PPE is EPA's preferred method for protecting workers. See: http://www.epa.gov/sites/production/files/2015-06/documents/draft_ncel_insert_042115.pdf (Ref. 10). EPA added language to the final SNURs issued June 26, 2013, that contained significant new uses pertaining to PPE for workers to require persons subject to the SNURs to consider and implement engineering controls and administrative controls where feasible. Where engineering and administrative controls are not feasible or are insufficient to protect exposed workers, persons who are subject to a SNUR must follow any PPE requirements or submit a SNUN to EPA.

    All new chemical SNURs published since June 26, 2013 have included the same language to consider and implement engineering controls and administrative controls where feasible when the SNURs contained significant new uses pertaining to the lack of PPE for workers. These requirements to consider engineering and administrative controls are based on and consistent with the OSHA requirements at 29 CFR 1910.134(a)(1). EPA is proposing to revise 40 CFR 721.63(a)(1) and 40 CFR 721.63(a)(4) to add language which requires consideration and use of engineering and administrative controls where feasible before PPE for worker protection. This proposed change would affect SNURs issued after this proposed rule becomes a final effective rule and would affect previously issued SNURs that incorporate worker protection referencing the existing 40 CFR 721.63(a)(1) and 40 CFR 721.63(a)(4) regulations. EPA believes most companies are already following a hierarchy of controls due to OSHA regulations. EPA is specifically seeking comments on this proposal to incorporate a hierarchy of controls for significant new use rules.

    2. Proposed Changes to 40 CFR 721.72, Hazard Communication Program

    Based on the changes to 29 CFR 1910.1200, OSHA's modified HCS, EPA is proposing changes to 40 CFR 721.72. In March, 2012, OSHA modified its HCS to conform to the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals (GHS) to enhance the effectiveness of the HCS by ensuring that employees are apprised of the chemical hazards to which they may be exposed, and by reducing the incidence of chemical-related occupational illnesses and injuries. (Ref. 1) Modifications to the HCS include revised criteria for classification of chemical hazards; revised labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; a specified format for safety data sheets; and related revisions to definitions of terms used in the HCS and requirements for employee training on labels and safety data sheets.

    Under the current rules, when SNURs are issued citing section 40 CFR 721.72 in subpart E for a chemical substance, it is considered a significant new use if the company does not develop a written hazard communication program for the substance in the workplace. Paragraphs (a) through (h) of 40 CFR 721.72 can be cited in subpart E as the elements that must be included in the hazard communication program. Manufacturers and processors subject to a SNUR in subpart E for a chemical substance can rely on an existing hazard communication program, such as one established under the OSHA HCS or one based on GHS recommendations to comply with this significant new use requirement to the extent the hazard communication program contains elements cited for that SNUR from 40 CFR 721.72 paragraphs (a) through (h).

    EPA is proposing to add new paragraphs (i) and (j) that EPA would use when issuing hazard communication requirements for SNURs issued after this rulemaking has been finalized. The new paragraph (i) would require that a written hazard communication program be developed and implemented for the substance in each workplace in accordance with 29 CFR 1910.1200, the OSHA HCS.

    The proposed approach would maintain consistency in compliance for persons subject to TSCA and OSHA regulations for the same activity. Because the OSHA HCS is detailed and complex, by cross-referencing it EPA would avoid any errors in duplication as well as avoid the unintentional creation of additional obligations. In addition, any amendments to the OSHA HCS would apply at the same time for the purposes of complying with the SNUR. This approach would also be consistent with the requirement for EPA to coordinate with other federal executive departments and agencies under TSCA section 9(d) to impose “the least burdens of duplicative requirements on those subject to the chapter and for other purposes.”

    The new paragraph (j) describes specific statements and other warnings that could be required for SNURs for substances identified in subpart E. The specific statements and warnings that could be required would be based on EPA's risk assessment of the chemical substance and would be consistent with the OSHA HCS and GHS recommendations.

    EPA expects that, whenever the statements in paragraphs (g), (h), and (j) are required and the determinations for the SNUR are published, manufacturers and processors subject to the SNUR will also consider if they trigger any other corresponding hazard communication requirements under the OSHA HCS or recommendations under GHS recommendations. Any hazard and precautionary statements required by the SNUR would be a minimum set of hazard warnings. EPA may also propose individual SNURs or issue section 5(e) SNURs under 40 CFR 721.160 using other specific statements, signal words, symbols, hazard category, and pictograms as hazard communication requirements.

    EPA is proposing to update 40 CFR 721.72 paragraphs (a) through (h) to be consistent with both OSHA requirements and GHS recommendations. When the rulemaking is finalized, these changes would apply to individual SNURs in subpart E issued before the effective date of the final rule as described in the next two paragraphs. EPA is proposing changes to 40 CFR 721.72 paragraphs (a), (c), and (d) to change using the word material safety data sheet (MSDS) to safety data sheet (SDS) and to allow easily accessible electronic versions and other alternatives to maintaining paper copies of the SDS. These changes would apply to any previously issued SNUR in subpart E that cites these paragraphs. EPA is also proposing changes pertaining to hazard and precautionary statements that are listed in 40 CFR 721.72 paragraphs (g) and (h) to be consistent with statements required under the OSHA HCS and recommended by the GHS. The proposed changes would add new precautionary and hazard statements that are consistent with the OSHA HCS and GHS recommendations. While the previously issued SNUR precautionary and hazard statements will be retained solely for previously issued SNURs, EPA is proposing to identify which of the proposed new statements can be used as alternatives. EPA is proposing that manufacturers and processors subject to a previously issued SNUR will have the option to use the prior older precautionary and hazard statements or use the new alternative statements that are consistent with the OSHA HCS or GHS recommendations to comply with the SNUR.

    EPA is also proposing language allowing any person subject to a previously issued SNUR for a substance identified in subpart E containing requirements for 40 CFR 721.72 paragraphs (a) through (h) to comply with those requirements by following the requirements of the proposed 40 CFR 721.72 paragraph (i), which is being proposed for use in future SNURs, and using any statements specified for that substance in the proposed 40 CFR 721.72 paragraphs (g) or (h). For example, a person currently subject to a SNUR citing the requirements to establish a hazard communication program as described in 40 CFR part 721.72 paragraphs (a) through (f) and the requirement for a hazard statement in paragraph (g)(1)(iii), central nervous system effects, could comply by taking the following steps: That person could establish a hazard communication program according to the requirements in the proposed paragraph (i) and use the hazard statement in paragraph (g)(1)(iii), “central nervous system effects,” or the proposed alternative hazard statement (g)(1)(xi), “may cause damage to the central nervous system through prolonged or repeated exposure.”

    EPA recommends using a Chemical Abstracts Service (CAS) number to identify the chemical substance whenever available. EPA makes this recommendation because CAS numbers are widely used by industry including in SDSs to provide a unique identifier for chemical substances and provide an unambiguous way to identify a chemical substance, unlike the variety of possible systematic, generic, or proprietary names that may be available for the same chemical substance. Only when a CAS number is not available should a different unique numerical identifier be used. Because of variations in naming conventions for chemical substances, using CAS numbers makes it easier for the regulated community to accurately identify and report chemical identities. For example, upon importation of a chemical substance, if the chemical substance is being identified to assure compliance with regulatory requirements, providing the most specific CAS number is the most efficient and clear way to ensure this. The proposed changes for SNUR hazard communications requirements concerning how to identify chemical substances would be consistent with OSHA regulations.

    3. Clarification of the Use of 40 CFR 721.80, Industrial Commercial and Consumer Activities

    EPA is also clarifying its use of the significant new use for new chemical SNURs described at 40 CFR 721.80(j), which identifies as a significant new use, “Use other than as described in the premanufacture notice referenced in subpart E of this part for the substance.” EPA is not proposing to change the language of 721.80(j). Instead, EPA is clarifying how it identifies as a significant new use, “Use other than as described in the premanufacture notice referenced in subpart E of this part for the substance” for individual SNURs. When EPA issues a SNUR using the designation at 40 CFR 721.80(j) in subpart E for a chemical substance and that use described in the premanufacture notice is claimed as confidential, EPA cites 40 CFR 721.80(j). See Unit III.5 for a discussion of how manufacturers and processors subject to a SNUR with a confidential significant new use designation can currently file a bona fide inquiry to determine whether a specific use is a significant new use and EPA's proposal for future bona fide inquiries. In identifying the significant new use in subpart E for certain previously issued SNURs where the use described in the premanufacture notice was not claimed confidential, EPA cited 40 CFR 721.80(j) and included the PMN use described in the premanufacture notice in parentheses. EPA has received public comments in response to proposed SNURs and pre-notice inquiries for SNUNs that manufacturers and processors subject to SNURs find it confusing when EPA cites 40 CFR 721.80(j) and then identifies the PMN use in parentheses. These comments and inquiries have stated that when EPA cites the new use this way it appears as though the significant new use is the use in the parentheses, where the significant new use is actually use other than the use in parentheses given 40 CFR 721.80(j).

    To more clearly identify the significant new use, EPA has changed this procedure to only cite 40 CFR 721.80(j) when the use described in the PMN is confidential. When the use described in the PMN is not confidential, EPA intends to identify the significant new use in a new chemical SNUR by describing the use, such as in the following example: “A significant new use is any use other than as a pesticide intermediate.” (This example was published in the direct final SNUR issued on February 12, 2014 (79 FR 8291) (Ref. 11) and is codified in subpart E at 40 CFR 721.10718.)

    4. Proposed Changes to 40 CFR 721.91, Computation of Estimated Surface Water Concentrations: Instructions

    When EPA issues a new chemical SNUR citing the significant new uses described in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4), the SNUR requires significant new use notification if the results of the equation for computation of estimated surface water concentrations in 40 CFR 721.91 exceed the level specified for that SNUR in subpart E. The equation estimates surface water concentrations based on the amount of a chemical substance released from industrial processes and the flows of the water body. The current equation does not take into consideration amounts of a chemical substance released to a surface water after control technology such as wastewater treatment. EPA is proposing to revise this requirement to allow manufacturers and processors to account for reductions in surface water concentrations resulting from wastewater treatment. 40 CFR 721.91 contains instructions for the computation of estimated surface water concentrations according to the equation specified in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4). EPA is proposing to revise 40 CFR 721.91 to allow for a certain percentage of removal of a chemical substance from wastewater when undergoing control technology, when using the equation to calculate surface water concentrations to meet requirements in 40 CFR 721.90. EPA has previously allowed surface water concentrations to be calculated with a consideration of wastewater treatment in certain SNURs by adding regulatory text to individual rules. This change to 40 CFR 721.91 will make the consideration of control technology part of the calculations for the equation specified in 40 CFR 721.90 when cited in subpart E for a specific chemical substance. EPA will cite the control technology and the percentage removal for SNURs in subpart E, based on EPA's assessment of the effectiveness of the control technology for the specific chemical substance. Based on past experience with new chemical SNURs, EPA expects that the control technology will usually be wastewater treatment. However, EPA will not identify a percentage of removal from wastewater for every chemical substance subject to a SNUR with the significant new use specified in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4). EPA would identify an applicable removal percentage when issuing new SNURs. It does not apply to existing SNURs where a removal percentage has not been identified.

    Because of numerous questions from manufacturers and processors about the phrase “predictable or purposeful release” in 40 CFR 721.90, EPA is clarifying the meaning of that phrase. The phrase is used to qualify significant new uses pertaining to releases to water in 40 CFR 721.90. As described in the proposed rule of April 29, 1987, Proposed General Provisions for New Chemicals Follow-up (52 FR 15608) (Ref. 12), the phrase predictable or purposeful does not include releases where true emergency conditions exist and significant new use notification is not possible. Therefore, routine or repeated activity that results in releases to water or non-routine releases to water that are not due to emergency conditions would be included in the term predictable or purposeful. EPA did not intend the phrase “predictable or purposeful release” to limit the agency's strict liability authority under the statute.

    5. Proposed Changes to 40 CFR 721.11, Determining Whether a Chemical Substance or a Specific Use Is Subject to This Part When the Chemical Substance Identity or Significant New Use Is Confidential

    Some new chemical SNURs have a significant new use designation which is a production volume limit or use other than described in the PMN that is based on CBI contained in the PMN and which is therefore not disclosed in the published SNUR. Currently, for each SNUR that contains a significant new use designation that is CBI, that SNUR cross-references the bona fide procedure in the specific SNUR in subpart E for 40 CFR 721.1725. That specific SNUR contains a significant new use designation that includes CBI (and is therefore not disclosed in the published SNUR) and describes the bona fide procedure that must be followed to allow a person to determine whether a specific use is a significant new use.

    When the chemical identity in a SNUR is CBI, 40 CFR 721.11 provides a means by which bona fide submitters can determine whether their substance is subject to the SNUR. However, as described in the previous paragraph, chemical identity is not the only information contained in a SNUR that may be claimed as CBI. EPA is proposing to modify the bona fide procedure in 40 CFR 721.11 of subpart A of 40 CFR part 721 so that it applies to all SNURs that contain any confidential information in the SNUR, including the significant new use. EPA believes it would be more efficient to have a bona fide procedure for determining confidential significant new uses in subpart A rather than referencing 40 CFR 721.1725(b)(1) each time EPA issues a SNUR containing a confidential significant new use designation. In addition, EPA is proposing to modify the bona fide procedure that allows EPA to disclose the confidential significant new use designations to a manufacturer or processor who has established a bona fide intent to manufacture (including import) or process a particular chemical substance.

    6. Proposed Changes for Submission of SDS(s) With PMNs, SNUNs, Low Volume Exemptions (LVEs), Low Release and Exposure Exemptions (LoREXs), and Test Marketing Exemption (TME) Applications

    EPA is proposing to revise requirements in 40 CFR 720.38, 720.45, and 40 CFR 723.50 to require that any SDS already developed to either comply with OSHA requirements or already developed by a notice submitter for other purposes must also be submitted as part of the notification (PMN, SNUN, LVE, LoREX, or TME application) under section 5 of TSCA. Many submitters already submit available SDSs as part of their submission and the information contained in SDSs is often useful for EPA's assessments of chemicals. This proposed revision would not require submitters to develop an SDS. It would only require a submitter to submit an SDS that has already been developed to the extent it is known or reasonably ascertainable by the submitter.

    7. Fixing Typographical Errors and Other Non-Substantive Changes

    EPA is proposing to correct several typographical errors and more accurately use the terms manufacture, manufacturer, and manufacturing in the regulatory text of sections 40 CFR parts 720, 721, and 723.

    IV. Economic Analysis

    EPA evaluated the potential costs of implementing these proposed changes to section 5 SNUR requirements for potential manufacturers (including importers) and processors of the chemical substances. The proposed changes result in minimal increases in burden associated with issuing future SNURs and administration and compliance with previously issued SNURs. For new chemical SNURs, the incremental increase is estimated at 364 hours of burden with an associated $20,387 in the steady state; for section 5 notices, the incremental increase is estimated at 247 hours of burden with an associated cost of $17,843 in the steady state. The Agency's complete Economic Analysis is available in the docket under docket ID number EPA-HQ-OPPT-2014-0650 (Ref. 13).

    V. References

    The following is a listing of the documents that are specifically referenced in this action. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    1. 2012. OSHA. OSHA Revised Hazard Communication Standard; Final Rule. Federal Register (77 FR 17574, March 26, 2012). 2. 1989. EPA. Significant New Use Rules; General Provisions for New Chemicals Follow-up; Final Rule. Federal Register (54 FR 31298, July 27, 1989) (FRL-3504-6). 3. 1995. EPA. Amendment for Expedited Process to Issue Significant New Use Rules for Selected New Chemical Substances; Final Rule. Federal Register March 29, 1995 (60 FR 16311, March 29, 1995) (FRL-4291-9). 4. 1995. NIOSH. Respiratory Protection Devices; Final Rule. Federal Register (60 FR 30355, June 8, 1995). 5. 1998. OSHA. Respiratory Protection; Final Rule. Federal Register (63 FR 1152, January 8, 1998). 6. 2006. OSHA. Assigned Protection Factors; Final Rule. Federal Register (71 FR 50121, August 24, 2006). 7. 2015. EPA. Chart comparing assigned protection factors of current respirator classes with older respirator requirements. 8. 2011. EPA. Proposed Significant New Use Rules on Certain Chemical Substances; Proposed Rule. Federal Register (76 FR 81447, December 28, 2011) (FRL-9326-2). 9. 2013. EPA. Significant New Use Rules on Certain Chemical Substances; Final Rule. Federal Register (78 FR 32810, June 26, 2014) (FRL-9390-6). 10. 2015. EPA. Boilerplate consent order containing new chemicals exposure limits. http://www.epa.gov/sites/production/files/2015-06/documents/draft_ncel_042115.pdf. 11. 2014. EPA. Significant New Use Rules on Certain Chemical Substances; Direct Final Rule. Federal Register (79 FR 8291, February 12, 2014) (FRL-9903-70). 12. 1987. EPA. Significant New Uses of Chemical Substances; General Provisions for New Chemical Follow-up; Proposed Rule. Federal Register April 29, 1987 (52 FR 15594, April 29, 1987) (FRL-3153-6). 13. 2016. EPA. Economic Analysis for Proposed Rule Amendments to Part 721—Modifications to General and Specific Requirements in the SNUR Framework—Significant New Uses of Chemical Substances. (RIN 2070-AB27). March 2016. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has determined that this proposed rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993). Accordingly, this action was not submitted to OMB for review under Executive Order 12866 and 13563 (76 FR 3821, January 21, 2011).

    B. Paperwork Reduction Act (PRA)

    An agency may not conduct or sponsor, and a person is not required to respond to an information collection request subject to the PRA (44 U.S.C. 3501 et seq.), unless it displays a currently valid OMB control number. The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574.15). This action would not impose any burden requiring additional OMB approval. Estimates presented below reflect incremental changes associated with the rule.

    Respondents/affected entities: Certain manufacturers (including importers) and processors.

    Description Number of
  • respondents
  • Number of
  • responses
  • Section 5 Notices 988 988 New Chemical SNURs (newly issued and previously issued) 221 334 Rule Total 1,209 1,322

    Respondent's obligation to respond: Mandatory.

    Frequency of Response: Incidental, upon submission of notice or implementing/updating New Chemical SNURs.

    Total estimated incremental burden (hours per year): Burden is defined at 5 CFR part 178.

    Description First year Steady state Section 5 Notices 415 247 New Chemical SNURs (newly issued and previously issued) 661 364 Rule Total 1,073 611

    Total estimated incremental cost (2014$ annual):

    Description First year Steady state Section 5 Notices $30,420 $17,843 New Chemical SNURs (newly issued and previously issued) $42,618 $20,386 Rule Total $73,038 $38,229

    In your comments on this proposed rule, EPA is also interested in any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including revisions to the automated collection techniques being used for submissions to EPA under TSCA, which are now required to use the Agency's Central Data Exchange (CDX) portal at http://cdx.epa.gov/epa_home.asp.

    C. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), I hereby certify that this action would not have a significant adverse economic impact on a substantial number of small entities. The Agency's basis is briefly summarized here and is detailed in the economic analysis in the public docket for this proposed rule (Ref. 13).

    Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business, as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Since the regulated community is not expected to include small governmental jurisdictions or small not-for-profit organizations, the analysis focuses on small businesses.

    EPA has observed only a very small proportion of SNUNs submitted by self-declared small businesses. To the extent that the percentage of small firms abiding by a SNUR is similar to the percentage of small firms submitting SNUNs, it is unlikely that a substantial number of small entities would be affected by this proposed rule's changes to SNUR requirements. Similarly, for section 5 notices, assuming that a similar small proportion of small firms are submitting all notices, it is likewise unlikely that substantial number of small entities would be affected by this proposed rule's changes.

    EPA also believes the incremental per-response costs for complying with the proposed rule at $61 per SNUR chemical•firm and $18 per notice are low compared to the cost of developing and marketing a chemical new to the firm. Given the relatively low prevalence of small businesses in the new chemicals universe, and the extremely small incremental burden, the proposed rule is thus very unlikely to have a significant adverse economic impact on a substantial number of small entities (SISNOSE). Therefore EPA presumes a “no SISNOSE” finding. EPA continues to be interested in the potential impacts of this proposed rule on small entities and welcomes comments on issues related to such impacts.

    D. Unfunded Mandates Reform Act (UMRA)

    Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, EPA has determined that this action would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq.).

    E. Executive Order 13132: Federalism

    This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this proposed rule.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not a “significant energy Action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on energy supply, distribution, or use.

    I. National Technology Transfer and Advancement Act (NTTAA)

    Since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note) does not apply to this action.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994), because EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations.

    List of Subjects in 40 CFR Parts 720, 721, and 723

    Environmental protection, Chemicals, Hazardous materials, Recordkeeping, and Reporting requirements.

    Dated: June 9, 2016. Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics.

    Therefore, it is proposed that 40 CFR chapter I be amended as follows:

    PART 720—[AMENDED] 1. The authority citation for part 720 continues to read as follows: Authority:

    15 U.S.C. 2604, 2607, and 2613.

    § 720.1 [Amended]
    2. In § 720.1, remove the phrase “and importers”. 3. Amend § 720.3 by: a. Revising paragraph (r) introductory text. b. Revising paragraph (r)(1). c. Revising paragraph (s) introductory text. d. Revising paragraph (s)(2). e. Revising paragraph (cc).

    The revisions reads as follows:

    § 720.3 Definitions.

    (r) Manufacture for commercial purposes means:

    (1) To manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer, and includes, among other things, “manufacture” of any amount of a chemical substance or mixture:

    (s) Manufacture solely for export means to manufacture for commercial purposes a chemical substance solely for export from the United States under the following restrictions on activities in the United States:

    (2) The manufacturer and any person to whom the substance is distributed for purposes of export or processing solely for export (as defined in § 721.3 of this chapter), may not use the substance except in small quantities solely for research and development in accordance with § 720.36.

    (cc) Small quantities solely for research and development (or “small quantities solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of, such substance or another substance, including such research or analysis for the development of a product”) means quantities of a chemical substance manufactured or processed or proposed to be manufactured or processed solely for research and development that are not greater than reasonably necessary for such purposes.

    § 720.25 [Amended]
    4. In § 720.25 removing the phrase “or import” wherever it appears in the section.
    § 720.30 [Amended]
    5. Amend § 720.30 by: a. Removing the phrase “or imported” wherever it appears in the section. b. Removing in paragraph (h)(7) the word “intented” and add in its place “intended”.
    § 720.36 [Amended]
    6. In § 720.36 removing the phrases “or imported”, “or importer”, “or imports” wherever they appear in the section. 7. Amend § 720.38 by: a. Removing the phrase “or import” wherever it appears in the section. b. Adding paragraph (b)(6) to read as follows:
    § 720.38 Exemptions for test marketing.

    (b)(6) Any safety data sheet already developed for the chemical substance.

    § 720.40 [Amended]
    8. In § 720.40, removing the phrases “or import” and “or importer” wherever they appear in the section. 9. Amend § 720.45 by: a. Removing in paragraph (e), the phrase “or imported” wherever it appears in the paragraph. b. Adding paragraph (i) to read as follows:
    § 720.45 Information that must be included in the notice form.

    (i) Any safety data sheet already developed for the new chemical substance.

    § 720.57 [Amended]
    10. Removing in § 720.57 paragraph (a), the word “chemcial” and add in its place “chemical”.
    § 720.75 [Amended]
    11. In § 720.75 paragraph (e)(2), remove the phrase “or importer”. 12. Amend § 720.78 by: a. Removing in paragraph (b)(1), the phrase “or import”. b. Removing in paragraph (b)(1)(iv), the word “manfacturer” and add in its place “manufacturer”. c. Removing in paragraph (b)(2), the phrase “or imports” wherever it appears in the paragraph. d. Removing in paragraph (c) the phrase “or import”.
    § 720.85 [Amended]
    13. Amend § 720.85 by: a. Removing the phrase “or import” wherever it appears in the section. b. Removing the phrase “or importing” wherever it appears in the section. c. Removing in paragraph (b)(1) the phrase “or imported”. d. Removing in paragraph (b)(1) the word “indentity” and add in its place “identity”. e. Removing in paragraph (b)(2)(i) the word “manfactures” and add in its place “manufactures”. f. Removing in paragraph (b)(2)(i) the phrase “or imports”. g. Removing in paragraph (b)(3)(iv)(D) the phrase “on imported”.
    § 720.90 [Amended]
    14. Removing throughout § 720.90 the phrase “or import” wherever it appears in the section. 15. Removing throughout subpart F the phrase “or import” wherever it appears in the subpart.
    § 720.120 [Amended]
    16. Amend § 720.120 by: a. Removing in paragraph (b) the phrase “or imports”. b. Removing in paragraph (b) the word “requied” and add in its place “required”. PART 721—[AMENDED] 17. The authority citation for part 721 continues to read as follows: Authority:

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

    18. Removing in part 721, the acronym “MSDS” and add in its place the acronym “SDS” everywhere it appears. 19. Removing in part 721, the acronym “MSDSs” and add in its place the acronym “SDSs” everywhere it appears. 20. Removing in part 721, the phrase “material safety” and add in its place the word “safety” everywhere it appears.
    § 721.1 [Amended]
    21. Removing in § 721.1(a) the phrase “manufacturers, importers and processors” and add in its place “manufacturers and processors”. 22. Amend § 721.3 by: a. Adding in alphabetical order the definition for “Safety Data Sheet” b. Revising the definition for “Customer”. c. Revising the definition of “Employer”. d. Removing the definition of “MSDS”. e. Revising the definition of “Non-industrial use”. f. Revising the definition of “Recipient”.

    The revisions read as follows:

    Customer means any person to whom a manufacturer or processor distributes any quantity of a chemical substance, or of a mixture containing the chemical substance, whether or not a sale is involved.

    Employer means any manufacturer, processor, or user of chemical substances or mixtures.

    Non-industrial use means use other than at a facility where chemical substances or mixtures are manufactured or processed.

    Recipient means any person who purchases or otherwise obtains a chemical substance directly from a person who manufactures or processes the substance.

    Safety Data Sheet (SDS) means written or printed material concerning a hazardous chemical substance that is prepared as required under § 721.72(c).

    § 721.5 [Amended]
    23. Amend § 721.5 by: a. Removing the phrase “manufacturer, importer, or processor” and add in its place the phrase “manufacturer or processor” everywhere it appears. b. Removing the phrase “manufacture, import, or process” and add in its place the phrase “manufacture or process” everywhere it appears. c. Removing in paragraph (d)(1)(iii), the word “recepient's” and add in its place “recipient's”. 24. Amend § 721.11 by: a. Removinig the phrase “manufacturer, importer, or processor” and add in its place the phrase “manufacturer or processor” everywhere it appears. b. Removing the phrase “manufacture, import, or process” and add in its place the phrase “manufacture or process” everywhere it appears. c. Revising the section heading, and paragraphs (a), (e), (f), and (g).

    The revisions reads as follows:

    § 721.11 Determining whether a chemical substance or a specific use is subject to this part when the chemical substance identity or significant new use is confidential.

    (a) A person who intends to manufacture or process a chemical substance which is subject to a significant new use rule in subpart E of this part may ask EPA whether the substance or a proposed use is subject to the requirements of this part if that substance is described by a generic chemical name or if the significant new use is confidential and therefore not described specifically in the rule. EPA will answer such an inquiry only if EPA determines that the person has a bona fide intent to manufacture or process the chemical substance for commercial purposes.

    (e) If the manufacturer or processor has shown a bona fide intent to manufacture or process the substance and has provided sufficient unambiguous chemical identity information to enable EPA to make a conclusive determination as to the identity of the substance, EPA will inform the manufacturer or processor whether the chemical substance is subject to this part and, if so, which section in subpart E of this part applies, and identify any confidential significant new use designations.

    (f) A disclosure to a person with a bona fide intent to manufacture or process a particular chemical substance that the substance is subject to this part or of confidential significant new use designations will not be considered public disclosure of confidential business information under section 14 of the Act.

    (g) EPA will answer an inquiry on whether a particular chemical substance is subject to this part or identify and confidential significant new uses within 30 days after receipt of a complete submission under paragraph (b) of this section.

    § 721.25 [Amended]
    25. Amend § 721.25 by: a. Removing in paragraph (a) the phrase “manufacture, import, or processing” and add in its place the phrase “manufacture or processing”. b. Removing in paragraph (d) the phrase “manufacture, import, or process” and add in its place the phrase “manufacture or process”.
    § 721.30 [Amended]
    26. Amend § 721.30 by: a. Removing the phrase “manufacture, import, or processing” and add in its place the phrase “manufacture or processing” everywhere it appears. b. Removing in paragraph (a) the phrase “manufacture, import, or process” and add in its place the phrase “manufacture or process”.
    § 721.35 [Amended]
    27. Amend § 721.35 by: a. Remove the phrase “manufactured, imported, or processed” and add in its place the phrase “manufactured or processed” everywhere it appears. b. Removing in paragraph (f)(1) the phrase “manufacture, import, or processing” and add in its place the phrase “manufacture or processing”. 28. Throughout § 721.45 remove the phrase “manufactures, imports, or processes” and add in its place the phrase “manufactures or processes” everywhere it appears.
    § 721.47 [Amended]
    29. Revise § 721.47 by: a. Removing the phrase “manufactures, imports, or processes” and add in its place the phrase “manufactures or processes” everywhere it appears. b. Removing the phrase “manufacturer, importer, or processor” and add in its place the phrase “manufacturer or processor” everywhere it appears. c. Removing the phrase “manufacture, import, or process” and add in its place the phrase “manufacture or process” everywhere it appears. 30. Amend § 721.63 by: a. Revising paragraph (a) introductory text, paragraph (a)(1), (4), and (5) b. Adding new paragraphs (a)(5)(xvi) through (a)(5)(li). c. Revising paragraph (a)(6). d. Adding new paragraphs (a)(6)(vii) through (a)(6)(ix). e. Removing in paragraph (c)(2) the phrase “manufacturer, importer, or processor” and add in its place the phrase “manufacturer or processor”.

    The revisions and additions read as follows:

    § 721.63 Protection in the workplace

    (a) Whenever a substance is identified in subpart E of this part as being subject to this section, any manner or method of manufacturing (including importing) or processing associated with any use of the substance is considered a significant new use unless a program is established whereby:

    (1) Where people are reasonably likely to have dermal or eye exposure to the chemical substance in the work area, either through direct handling of the substance, or through contact with surfaces on which the substance may exist, or because the substance becomes airborne in the form listed in paragraph (a)(6) of this section, and the form is cited in subpart E of this part for the chemical substance, engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. Where engineering, work practice, and administrative controls are not feasible or dermal or eye exposure is still reasonably likely, each person who is reasonably likely to be exposed to the chemical substance by dermal or eye exposure must be provided with, and is required to wear, personal protective equipment (PPE) to prevent dermal or eye exposure to the substance. Refer to 29 CFR 1910.132 and 29 CFR 1910.133 for requirements on selection and use of PPE.

    (4) Where each person who is reasonably likely to be exposed to the chemical substance by inhalation in the work area in one or more of the forms listed in paragraph (a)(6) of this section and cited in subpart E of this part for the chemical substance, engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. When engineering, work practice, and administrative controls are not feasible or inhalation exposure is still reasonably likely, each person who is reasonably likely to be exposed to the chemical substance by inhalation in the work area in one or more of the forms listed in paragraph (a)(6) of this section and cited in subpart E of this part for the chemical substance, must be provided with, and is required to wear, a NIOSH- certified respirator from one of the categories listed in paragraph (a)(5) of this section. Refer to 29 CFR 1910.134 and 42 CFR part 84 for requirements on the selection, use, and maintenance of respirators, including establishing respiratory protection program, medical determination, and other administrative and programmatic requirements for respiratory protection.

    (5) The following NIOSH-certified respirators meet the requirements for paragraph (a)(4) of this section:

    (xvi) NIOSH-certified N100 (if oil aerosols absent), R100, or P100 filtering facepiece respirator. (APF = 10)

    (xvii) NIOSH-certified air-purifying half-mask respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters. (APF = 10)

    (xviii) NIOSH-certified air-purifying half mask respirator equipped with appropriate gas/vapor cartridges. (APF = 10)

    (xix) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters. (APF = 10)

    (xx) NIOSH-certified negative pressure (demand) supplied-air respirator equipped with a half-mask. (APF = 10)

    (xxi) NIOSH-certified negative pressure (demand) self-contained breathing apparatus (SCBA) equipped with a half mask. (APF = 10)

    (xxii) NIOSH-certified powered air-purifying respirator equipped with a hood or helmet and HEPA filters. (APF = 25)

    (xxiii) NIOSH-certified powered air-purifying respirator with a hood or helmet equipped with appropriate gas/vapor cartridges. (APF = 25)

    (xxiv) NIOSH-certified powered air-purifying respirator with a hood or helmet and with appropriate gas/vapor cartridges in combination with HEPA filters. (APF = 25)

    (xxv) NIOSH-certified powered air-purifying respirator equipped with a loose fitting facepiece and HEPA filters. (APF = 25)

    (xxvi) NIOSH-certified powered air-purifying respirator equipped with a loose fitting facepiece with appropriate gas/vapor cartridges. (APF = 25)

    (xxvii) NIOSH-certified powered air-purifying respirator equipped with a loose fitting facepiece with appropriate gas/vapor cartridges in combination with HEPA filters. (APF = 25)

    (xxviii) NIOSH-certified continuous flow supplied-air respirator equipped with a hood or helmet. (APF = 25)

    (xxix) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece. (APF = 25)

    (xxx) NIOSH-certified air-purifying full facepiece respirator equipped with N100, R-100, or P-100 filter(s). (APF = 50)

    (xxxi) NIOSH-certified air-purifying full facepiece respirator equipped with appropriate gas/vapor cartridges or canisters. (APF = 50)

    (xxxii) NIOSH-certified air-purifying full facepiece respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters. (APF = 50)

    (xxxiii) NIOSH-certified powered air-purifying respirator equipped with a tight-fitting half mask and HEPA filters. (APF = 50)

    (xxxiv) NIOSH-certified powered air-purifying respirator equipped with a tight-fitting half mask and appropriate gas/vapor cartridges or canisters. (APF = 50)

    (xxxv) NIOSH-certified powered air-purifying respirator with a tight-fitting half mask and appropriate gas/vapor cartridges in combination with HEPA filters. (APF = 50)

    (xxxvi) NIOSH-certified pressure-demand or other positive pressure mode supplied-air respirator equipped with a half-mask. (APF = 50)

    (xxxvii) NIOSH-certified negative pressure (demand) supplied-air respirator equipped with a full facepiece. (APF = 50)

    (xxxviii) NIOSH-certified continuous flow supplied-air respirator equipped with a tight-fitting half mask. (APF = 50)

    (xxxix) NIOSH-certified negative pressure (demand) self-contained breathing apparatus (SCBA) equipped with a hood or helmet or a full facepiece. (APF = 50)

    (xl) NIOSH-certified powered air purifying full facepiece respirator equipped with HEPA filters. (APF = 1,000)

    (xli) NIOSH-certified powered air purifying full facepiece respirator equipped with appropriate gas/vapor cartridges. (APF = 1,000)

    (xlii) NIOSH-certified powered air purifying fill facepiece respirator equipped with appropriate gas/vapor cartridges in combination with HEPA filters. (APF = 1,000)

    (xliii) NIOSH-certified powered air-purifying respirator equipped with a hood or helmet and N100, R100, or P100 filters with evidence demonstrating protection level of 1,000 or greater. See 40 CFR 721.63(a)(5)(li). (APF = 1,000)

    (xliv) NIOSH-certified powered air-purifying respirator equipped with a hood or helmet and appropriate gas/vapor cartridges with evidence demonstrating protection level of 1,000 or greater. See 40 CFR 721.63(a)(5)(li). (APF = 1,000)

    (xlv) NIOSH-certified powered air-purifying respirator with a loose-fitting hood or helmet that is equipped with an appropriate gas/vapor cartridge in combination with HEPA filters with evidence demonstrating protection level of 1,000 or greater. See 40 CFR 721.63(a)(5)(li). (APF = 1,000)

    (xlvi) NIOSH-certified continuous flow supplied-air respirator equipped with a full facepiece. (APF = 1,000)

    (xlvii) NIOSH-certified continuous flow supplied-air respirator equipped with a hood or helmet with evidence demonstrating protection level of 1,000 or greater. See 40 CFR 721.63(a)(5)(li). (APF = 1,000)

    (xlviii) NIOSH-certified pressure-demand supplied-air respirator equipped with a full facepiece. (APF = 1,000)

    (xlix) NIOSH-certified pressure-demand or other positive-pressure mode (e.g., open/closed circuit) self-contained breathing apparatus (SCBA) equipped with a hood or helmet or a full facepiece. (APF = 10,000)

    (l) If one of the respirators in paragraph (a)(5)(i) through (a)(5)(xv) is cited for a substance identified in subpart E an employer may substitute a respirator from paragraphs (a)(5)(xvi) through (a)(5)(xlix) as long as its assigned protection factor is equal to or greater than the respirator cited in subpart E for that substance.

    (li) Without testing data that demonstrates a level of protection of 1,000 or greater, all air purifying respirators and supplied air respirators with helmets/hoods are to be treated as loose-fitting facepiece respirators with an APF of 25.

    (6) When cited in subpart E of this part for a substance, the following airborne form(s) of the substance, in combination or alone, are referenced by paragraphs (a)(1) and (4) of this section:

    (vii) Particulate or aerosol (solids or liquid droplets suspended in a gas; e.g., dust, fume, mist, smoke).

    (viii) Gas/vapor.

    (ix) Combination particulate and gas/vapor (gas and liquid/solid physical forms are both present, e.g., particulates and acid gases or particulates and organic vapors).

    (c) * * *

    (2) If, after receiving a statement of assurance from a recipient under paragraph (c)(1)(ii) of this section, a manufacturer or processor has knowledge that the recipient is engaging in an activity that is not consistent with the implementation of the program specified in paragraph (a) of this section, that person is considered to have knowledge that the person is engaging in a significant new use and is required to follow the procedures in § 721.5(d).

    31. Amend § 721.72 by: a. Revising the introductory text paragraph. b. Revising paragraph (a) and (1). c. Revising paragraph (b)(5). d. Revising paragraph (c)(5), (7) and (9). e. Revising paragraph (g)(1) introductory text and paragraphs (g)(1)(i) through (g)(1)(ix). f. Adding paragraphs (g)(1)(x) through (g)(1)(xiv). g. Revising paragraph (g)(2) introductory text and paragraphs (g)(2)(i) through (g)(2)(v). h. Adding paragraphs (g)(2)(vi) through (g)(2)(viii). i. Revising paragraphs (g)(3)(i) through (g)(3)(ii). j. Adding paragraph (g)(3)(iii). k. Revising paragraphs (g)(4)(i) through (g)(4)(iii). l. Adding paragraph (g)(4)(iv). m. Revising paragraph (h)(1)(ii) introductory text and paragraphs (h)(1)(ii)(A) through (h)(1)(ii)(I). n. Adding paragraphs (h)(1)(ii)(J) through (h)(1)(ii)(N). o. Revising paragraphs (h)(1)(iii)(A) through (h)(1)(iii)(E). p. Adding paragraphs (h)(1)(iii)(F) through (h)(1)(iii)(H). q. Revising paragraph (h)(1)(iv) introductory text and paragraphs (h)(1)(iv)(A) through (h)(1)(iv)(B). r. Adding paragraph (h)(1)(iv)(C). s. Revising paragraphs (h)(1)(v)(A) through (h)(1)(v)(C). t. Adding paragraph (h)(1)(v)(D). u. Revising paragraph (h)(2)(ii) introductory text and paragraphs (h)(2)(ii)(A) through (h)(2)(ii)(I). v. Adding paragraphs (h)(2)(ii)(J) through (h)(2)(ii)(N). w. Revising paragraph (h)(2)(iii) introductory text and paragraphs (h)(2)(iii)(A) through (h)(2)(iii)(E). x. Adding paragraphs (h)(2)(iii)(F) through (h)(2)(iii)(H) y. Revising paragraph (h)(2)(iv) introductory text and paragraphs (h)(2)(iv)(A) and (h)(2)(iv)(B). z. Adding paragraph (h)(2)(iv)(C). aa. Revising paragraphs (h)(2)(v)(A) through (h)(2)(v)(C). bb. Adding paragraph (h)(2)(v)(D). cc. Adding paragraphs (i) and (j).

    The revisions and additions read as follows:

    § 721.72 Hazard communication program.

    Whenever a substance is identified in subpart E of this part as being subject to this section, a significant new use of that substance is any manner or method of manufacture (including import) or processing associated with any use of that substance without establishing a hazard communication program as described in this section. Paragraphs (a) through (h) apply to SNURs issued before September 26, 2016. Paragraphs (i) and (j) apply to SNURs issued on or after September 26, 2016. Any person subject to the requirements of paragraphs (a) through (h) have the option of following the requirements of paragraph (i) or using the statements specified in paragraphs (g) or (h).

    (a) Written hazard communication program. Each employer shall develop and implement a written hazard communication program for the substance in each workplace. The written program will, at a minimum, describe how the requirements of this section for labels, SDSs, and other forms of warning material will be satisfied. The employer must make the written hazard communication program available, upon request, to all employees, contractor employees, and their designated representatives. The employer may rely on an existing hazard communication program, including an existing program established under the Occupational Health and Safety Administration (OSHA) Hazard Communication Standard in 29 CFR 1910.1200 of 2012 to comply with this paragraph provided that the existing hazard communication program satisfies the requirements of this paragraph. The written program shall include the following:

    (1) A list of each substance identified in subpart E of this part as subject to this section known to be present in the work area. The list must be maintained in the work area and must use the identity provided on the appropriate SDS for each substance required under paragraph (c) of this section. The list may be compiled for the workplace or for individual work areas.

    (b) * * *

    (5) If the label or alternative form of warning is to be applied to a mixture containing a substance identified in subpart E of this part as subject to this section in combination with another substance identified in subpart E of this part and/or a substance defined as a “hazardous chemical” under the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (29 CFR 1910.1200), the employer may prescribe on the label, SDS, or alternative form of warning, the measures to control worker exposure or environmental release which the employer determines provide the greatest degree of protection. However, should these control measures differ from the applicable measures required under subpart E of this part, the employer must seek a determination of equivalency for such alternative control measures pursuant to § 721.30 before prescribing them under this paragraph (b)(5).

    (c) * * *

    (5) If the employer becomes aware of any significant new information regarding the hazards of the substance or ways to protect against the hazards, this new information must be added to the SDS within 3 months from the time the employer becomes aware of the new information. If the substance is not currently being manufactured, processed, or used in the employer's workplace, the employer must add the new information to the SDS before the substance is reintroduced into the workplace.

    (7) The employer must maintain a copy of the SDS in its workplace, and must ensure that it is readily accessible during each work shift to employees when they are in their work areas. (Easy and immediate electronic access and other alternatives to maintaining paper copies of the safety data sheets are permitted as long as complete and accurate versions of the SDS are available immediately to employees in each workplace by such options.)

    (9) The SDS must be in English; however, the information may be repeated in other languages.

    (g) * * *

    (1) Human health hazard statements:

    (i) Causes skin irritation.

    (ii) Respiratory complications. (You may also use paragraph (g)(1)(x) of this section for this designation.).

    (iii) Central nervous system effects. (You may also use paragraph (g)(1)(xi) of this section for this designation but you must include this specific effect.)

    (iv) Internal organ effects. (You may also use paragraph (g)(1)(xi) of this section for this designation.)

    (v) Birth defects. (You may also use paragraph (g)(1)(xii) of this section for this designation but you must include this specific effect.)

    (vi) Reproductive effects. (You may also use paragraph (g)(1)(xii) of this section for this designation but you must include this specific effect.)

    (vii) May cause cancer.

    (viii) Immune system effects. (You may also use paragraph (g)(1)(xi) of this section for this designation but you must include this specific effect.)

    (ix) Developmental effects. (You may also use paragraph (g)(1)(xii) of this section for this designation but you must include this specific effect.)

    (x) May cause allergy or asthma symptoms or breathing difficulties if inhaled.

    (xi) May cause damage to organs <. . .> through prolonged or repeated exposure.

    <. . .> (State all organs identified in subpart E of this part for this substance.).

    (xii) May damage fertility or the unborn child <. . .>.

    <. . .> (State specific effect identified in subpart E of this part for this substance.)

    (xiii) May cause an allergic skin reaction.

    (xiv) Causes eye irritation.

    (2) Human health hazard precautionary statements:

    (i) Avoid skin contact. (You may also use paragraph (g)(2)(vi) of this section for this designation.)

    (ii) Avoid breathing substance. (You may also use paragraph (g)(2)(viii) of this section for this designation.)

    (iii) Avoid ingestion.

    (iv) Use respiratory protection. (You may also use paragraph (g)(2)(vii) of this section for this designation.)

    (v) Use skin protection. (You may also use paragraph (g)(2)(vi) of this section for this designation.)

    (vi) Wear protective gloves/protective clothing/eye protection/face protection. Chemical manufacturer or distributor to specify type of equipment, as required.)

    (vii) Wear respiratory protection. (Chemical manufacturer or distributor to specify equipment as required.)

    (viii) Avoid breathing dust/fume/gas/mist/vapors/spray. (Chemical manufacturer or distributor to specify applicable conditions.)

    (3) * * *

    (i) Toxic to fish. (You may also use paragraph (g)(3)(iii) of this section for this designation.)

    (ii) Toxic to aquatic organisms. (You may also use paragraph (g)(3)(iii) of this section for this designation.)

    (iii) Toxic to aquatic life.

    (4) * * *

    (i) Disposal restrictions apply. (You may also use paragraph (g)(4)(iv) of this section for this designation.)

    (ii) Spill clean-up restrictions apply. (You may also use paragraph (g)(4)(iv) of this section for this designation.)

    (iii) Do not release to water. (You may also use paragraph (g)(4)(iv) of this section for this designation.)

    (iv) Dispose of contents/container to . . . (Specify disposal requirements in subpart E of this part and whether they apply to contents, container or both.)

    (h)(1) * * *

    (ii) Human health hazard statements.

    (A) Causes skin irritation.

    (B) Respiratory complications. (You may also use paragraph (h)(1)(ii)(J) of this section for this designation.)

    (C) Central nervous system effects. (You may also use paragraph (h)(1)(ii)(K) of this section for this designation but you must include this specific effect.)

    (D) Internal organ effects. (You may also use paragraph (h)(1)(ii)(K) of this section for this designation.)

    (E) Birth defects. (You may also use paragraph (h)(1)(ii)(L) of this section for this designation but you must include this specific effect.)

    (F) Reproductive effects. (You may also use paragraph (h)(1)(ii)(L) of this section for this designation but you must include this specific effect.)

    (G) Cancer.

    (H) Immune system effects. (You may also use paragraph (h)(1)(ii)(K) of this section for this designation but you must include this specific effect.)

    (I) Developmental effects. (You may also use paragraph (h)(1)(ii)(L) of this section for this designation but you must include this specific effect.)

    (J) May cause allergy or asthma symptoms or breathing difficulties if inhaled.

    (K) May cause damage to organs <. . .> through prolonged or repeated exposure.

    <. . .> (state all organs identified in subpart E of this part for this substance.)

    (L) May damage fertility or the unborn child <. . .>.

    <. . .> (state specific effect identified in subpart E of this part for this substance.)

    (M) May cause an allergic skin reaction.

    (N) Causes eye irritation.

    (iii) Human health hazard precautionary statements.

    (A) Avoid skin contact. (You may also use paragraph (h)(1)(iii)(F) of this section for this designation.)

    (B) Avoid breathing substance. (You may also use paragraph (h)(1)(iii)(H) of this section for this designation.)

    (C) Avoid ingestion.

    (D) Use respiratory protection. (You may also use paragraph (h)(1)(iii)(G) of this section for this designation.)

    (E) Use skin protection. (You may also use paragraph (h)(1)(iii)(F) of this section for this designation.)

    (F) Wear protective gloves/protective clothing/eye protection/face protection. (Chemical manufacturer or distributor to specify type of equipment, as required.)

    (G) Wear respiratory protection. (Chemical manufacturer or distributor to specify equipment as required.)

    (H) Avoid breathing dust/fume/gas/mist/vapors/spray. (Chemical manufacturer or distributor to specify applicable conditions.)

    (iv) Environmental hazard statements.

    (A) Toxic to fish. (You may also use paragraph (h)(1)(iv)(C) of this section for this designation.)

    (B) Toxic to aquatic organisms. (You may also use paragraph (h)(1)(iv)(C) of this section for this designation.)

    (C) Toxic to aquatic life.

    (v) Environmental hazard precautionary statements. Notice to Users:

    (A) Disposal restrictions apply. (You may also use paragraph (h)(1)(v)(D) of this section for this designation)

    (B) Spill clean-up restrictions apply. (You may also use paragraph (h)(1)(v)(D) of this section for this designation)

    (C) Do not release to water. (You may also use paragraph (h)(1)(v)(D) of this section for this designation.)

    (D) Dispose of contents/container to . . . (Specify disposal requirements in subpart E of this part and whether they apply to contents, container or both.)

    (2) * * *

    (ii) Human health hazard statements.

    (A) Causes skin irritation.

    (B) Respiratory complications. (You may also use paragraph (h)(2)(ii)(J) of this section for this designation.)

    (C) Central nervous system effects. (You may also use paragraph (h)(2)(ii)(K) of this section for this designation but you must include this specific effect.)

    (D) Internal organ effects. (You may also use paragraph (h)(2)(ii)(K) of this section for this designation.)

    (E) Birth defects. (You may also use paragraph (h)(2)(ii)(L) of this section for this designation but you must include this specific effect.)

    (F) Reproductive effects. (You may also use paragraph (h)(2)(ii)(L) of this section for this designation but you must include this specific effect.)

    (G) May cause cancer.

    (H) Immune system effects. (You may also use paragraph (h)(2)(ii)(K) of this section for this designation but you must include this specific effect.)

    (I) Developmental effects. (You may also use paragraph (h)(2)(ii)(L) of this section for this designation but you must include this specific effect.)

    (J) May cause allergy or asthma symptoms or breathing difficulties if inhaled.

    (K) May cause damage to organs <. . .> through prolonged or repeated exposure.<. . .> (state all organs identified in subpart E for this substance.)

    (L) May damage fertility or the unborn child <. . .>.<. . .> (state specific effect identified in subpart E for this substance.)

    (M) May cause an allergic skin reaction.

    (N) Causes eye irritation.

    (iii) Human health hazard precautionary statements.

    (A) Avoid skin contact. (You may also use paragraph (h)(2)(iii)(F) of this section for this designation.)

    (B) Avoid breathing substance. (You may also use paragraph (h)(2)(iii)(H) of this section for this designation.)

    (C) Avoid ingestion.

    (D) Use respiratory protection. (You may also use paragraph (h)(2)(iii)(G) of this section for this designation.)

    (E) Use skin protection. (You may also use paragraph (h)(2)(iii)(F) of this section for this designation.)

    (F) Wear protective gloves/protective clothing/eye protection/face protection.

    (Chemical manufacturer or distributor to specify type of equipment, as required.)

    (G) Wear respiratory protection. (Chemical manufacturer or distributor to specify equipment as required.)

    (H) Avoid breathing dust/fume/gas/mist/vapors/spray. (Chemical manufacturer or distributor to specify applicable conditions.)

    (iv) Environmental hazard statements.

    (A) Toxic to fish. (You may also use paragraph (h)(2)(iv)(C) of this section for this designation.)

    (B) Toxic to aquatic organisms. (You may also use paragraph (h)(2)(iv)(C) of this section for this designation.)

    (C) Toxic to aquatic life.

    (v) Environmental hazard precautionary statements. Notice to Users:

    (A) Disposal restrictions apply. (You may also use paragraph (h)(2)(v)(D) of this section for this designation.)

    (B) Spill clean-up restrictions apply. (You may also use paragraph (h)(2)(v)(D) of this section for this designation.)

    (C) Do not release to water. (You may also use paragraph (h)(2)(v)(D) of this section for this designation.)

    (D) Dispose of contents/container to . . . (Specify disposal requirements in subpart E of this part and whether they apply to contents, container or both.)

    (i) Written hazard communication program. Each employer shall develop and implement a written hazard communication program for the substance in each workplace in accordance with 29 CFR 1910.1200.

    (j) Human health, environmental hazard, exposure, and precautionary statements. In addition to the requirements for the hazard communication program specified in paragraph (i), whenever referenced in subpart E of this part for a substance, the following human health and environmental hazard, exposure, and precautionary statements shall appear as specified in paragraph (i) of this section.

    (1) Human health hazard statements:

    (i) Causes skin irritation.

    (ii) May cause cancer.

    (iii) Immune system effects.

    (iv) Developmental effects.

    (v) May cause allergy or asthma symptoms or breathing difficulties if inhaled.

    (vi) May cause damage to organs <. . .>through prolonged or repeated exposure.<. . .> (state all organs identified in subpart E for this substance.)

    (vii) May damage fertility or the unborn child<. . .>.< . . . >(state specific effect identified in subpart E for this substance.)

    (viii) May cause an allergic skin reaction.

    (ix) Causes eye irritation.

    (2) Human health hazard precautionary statements:

    (i) Avoid ingestion.

    (ii) Wear protective gloves/protective clothing/eye protection/face protection. (Chemical manufacturer or distributor to specify type of equipment, as required.)

    (iii) Wear respiratory protection.

    (Chemical manufacturer or distributor to specify equipment as required.)

    (iv) Avoid breathing dust/fume/gas/mist/vapors/spray.

    (Chemical manufacturer or distributor to specify applicable conditions.)

    (3) Environmental hazard statements: This substance may be:

    (i) Toxic to aquatic life.

    (ii) Very toxic to aquatic life.

    (iii) Harmful to aquatic life.

    (iv) Very toxic to aquatic life with long term effects.

    (v) Toxic to aquatic life with long lasting effects.

    (vi) Harmful to aquatic life with long lasting effects.

    (vii) May cause long lasting harmful effects to aquatic life.

    (4) Environmental hazard precautionary statements: Notice to users:

    (i) Avoid release to the environment (if this is not the intended use.)

    (ii) Collect spillage.

    (iii) Dispose of contents/container to . . . (Specify disposal requirements in subpart E of this part and whether they apply to contents, container or both.)

    § 721.80 [Amended]
    32. Amend § 721.80 by: a. Removing the phrase “or import” wherever it appears in the section. b. Removing the phrase “and importation” wherever it appears in the section. c. Removing the phrase “or importer” wherever it appears in the section. d. Removing the word “manufacture” wherever it appears and add in its place the word “manufacturing”.
    § 721.85 [Amended]
    33. In § 721.85, remove the word “supercede” wherever it appears and add in its place the word “supersede”. 34. Amend §  721.91 by: a. Revising the introductory paragraph, and b. Adding paragraph (a)(7).

    The revision reads as follows:

    § 721.91 Computation of estimated surface water concentrations: Instructions.

    These instructions describe the use of the equation specified in § 721.90(a)(4), (b)(4), and (c)(4) to compute estimated surface water concentrations which will result from release of a substance identified in subpart E of this part. The equation shall be computed for each site using the stream flow rate appropriate for the site according to paragraph (b) of this section, and the highest number of kilograms calculated to be released for that site on a given day according to paragraph (a) of this section. Two variables shall be considered in computing the equation, the number of kilograms released, and receiving stream flow.

    (a) * * *

    (7) When a substance is designated in subpart E of this part with a specific control technology and a percentage removal of the substance from wastewater resulting from use of the specified control technology, you may subtract that percentage from the highest expected daily release if that control technology is applied.

    § 721.100 [Amended]
    35. In § 721.100, remove the phrase “manufacturers, importers, and processors” and add in its place “manufacturers and processors”. 36. Amend § 721.125 by revising the introductory paragraph, paragraph (a), (c), and (j) to read as follows:
    § 721.125 Recordkeeping requirements.

    At the time EPA adds a substance to subpart E of this part, EPA will specify appropriate recordkeeping requirements which correspond to the significant new use designations for the substance selected from subpart B of this part. Each manufacturer and processor of the substance shall maintain the records for 5 years from the date of their creation. In addition to the records specified in § 721.40, the records whose maintenance this section requires may include the following:

    (a) Records documenting the manufacturing volume of the substance and the corresponding dates of manufacture.

    (c) Records documenting the names and addresses (including shipment destination address, if different) of all persons outside the site of manufacture or processing to whom the manufacturer or processor directly sells or transfers the substance, the date of each sale or transfer, and the quantity of the substance sold or transferred on such date.

    (j) Records documenting compliance with any applicable disposal requirements under § 721.85, including the method of disposal, location of disposal sites, dates of disposal, and volume of the substance disposed. Where the estimated disposal volume is not known to or reasonably ascertainable by the manufacturer or processor, that person must maintain other records which demonstrate establishment and implementation of a program that ensures compliance with any applicable disposal requirements.

    § 721.160 [Amended]
    37. Amend § 721.160 by: a. Removing in paragraph (a)(1) the phrase “and import”. b. Removing in paragraph (a)(2) the phrase “or import”. PART 723—[AMENDED] 38. The authority citation for part 723 continues to read as follows: Authority:

    15 U.S.C. 2604.

    39. Amend §  723.50 by: a. Revising paragraph (a)(1) introductory text. b. Revising paragraph (e)(2)(xi)(A). c. Adding paragraph (e)(2)(xiii).

    The revisions read as follows:

    § 723.50 Chemical substances manufactured in quantities of 10,000 kilograms or less per year, and chemical substances with low environmental releases and human exposures

    (a) * * *

    (1) This section grants an exemption from the premanufacture notice requirements of section 5(a)(1)(A) of the Toxic Substances Control Act (15 U.S.C. 2604(a)(1)(A)) for the manufacture of:

    * * *

    (e) * * *

    (2) * * *

    (xi) * * *

    (A) The manufacturer intends to manufacture the new chemical substance for commercial purposes, other than in small quantities solely for research and development, under the terms of this section.

    * * *

    (xiii) Safety Data Sheet (§  720.45(i)).

    § 723.175 [Amended]
    40. Amend § 723.175 by: a. Removing in paragraph (f)(2)(iii), the word “imprevious” and add in its place “impervious”. b. Removing in paragraph (g), the word “chemcial” and add in its place “chemical”. c. Removing in paragraph (h)(2), the phrase “chemcial subtance” and add in its place “chemical substance”. d. Removing in paragraph (i)(1)(ii)(A), the word “disagram” and add in its place “diagram”. e. Removing in paragraph (i)(1)(ii)(C), the word “indentify” and add in its place “identify”. f. Removing in paragraph (i)(1)(iii), the word “chemcial” and add in its place “chemical”.
    § 723.250 [Amended]
    41. Amend § 723.250 by: a. Removing in paragraph (e)(3) the phrase “composition, complex” and add in its place “composition, complex”. b. Removing in paragraph (j)(1), the phrase “or import”.
    [FR Doc. 2016-15005 Filed 7-27-16; 8:45 am] BILLING CODE 6560-50-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1244 [Docket No. EP 385 (Sub-No. 7)] Waybill Data Reporting for Toxic Inhalation Hazards; Withdrawal AGENCY:

    Surface Transportation Board.

    ACTION:

    Proposed rule, withdrawal.

    SUMMARY:

    The Surface Transportation Board is withdrawing the proposed rules and discontinuing the EP 385 (Sub-No. 7) rulemaking proceeding which proposed to expand the Waybill Sample collection with respect to traffic movements designated as a Toxic Inhalation Hazard.

    DATES:

    The proposed rule published on February 2, 2010 (75 FR 5261) is withdrawn and the rulemaking proceeding is discontinued on July 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Allison Davis at (202) 245-0378. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    On January 28, 2010, in the above titled docket, the Board issued a Notice of Proposed Rulemaking (NPR) seeking public comment on a proposal to expand information that certain railroads are required to submit to the Board for purposes of the carload Waybill Sample (75 FR 5261, February 2, 2010). Specifically, the proposal would require railroads to submit information about all traffic movements designated as a Toxic Inhalation Hazard (TIH).

    As explained below, this proceeding will be discontinued.

    The Waybill Sample is the Board's primary source of information about freight rail shipments terminating in the United States. A waybill is a document describing the characteristics of an individual rail shipment, and includes (among other things) the following information: The originating and terminating freight stations, the railroads participating in the movement, the points of all railroad interchanges, the number of cars, the car initial and number, the movement weight in hundredweight, the commodity, and the freight revenue. Currently, railroads that are required to file Waybill Sample information may report a random sample of as little as 1% (using the manual system) or 2.5% (using the computerized system) of carloads on a waybill. See 49 CFR 1244.4(b) and (c).1

    1 Under 49 CFR 1244.2, a railroad is required to file Waybill Sample information for all line-haul revenue waybills terminated on its lines if it terminated at least 4,500 revenue carloads in any of the three preceding years, or it terminated at least 5% of the revenue carloads terminating in any state in any of the three preceding years. The Board recognizes that some of the submitted information is commercially sensitive, and thus the Board's regulations place limitations on releasing Waybill Sample data. See 49 CFR 1244.9.

    In the NPR, the Board suggested that the expanded information gathered from the proposed rule would permit the Board to assess TIH traffic within the United States more accurately. The NPR also stated that the information would be beneficial in Three-Benchmark rail rate cases involving TIH traffic, giving parties a larger number of movements from which to develop comparison groups. The additional information would also assist the Board in quantifying the magnitude of TIH traffic, and would help the Board more accurately measure the associated costs of handling such traffic.

    On March 4, 2010, the Association of American Railroads (AAR) filed the single comment received in response to the NPR. The AAR agrees that expanded TIH waybill data for use in Three-Benchmark rate cases would be useful; but, it expressed several security-related concerns regarding the potential use of TIH-related data the Board proposed to collect. (AAR Comments 2, 7.) 2 The AAR submits that, in light of the sensitive nature of detailed TIH waybill data, the Board should not collect and maintain this data and subject it to potential inadvertent disclosure unnecessarily. (Id. at 8.) The AAR suggests several alternatives to the Board's proposal. First, the AAR suggests disclosure on a case-by-case basis, where the defendant carrier in a Three-Benchmark rate proceeding would make all TIH waybills available to the complainant for the most current period. (Id. at 8.) Second, the AAR suggests that the Board could assess TIH traffic by obtaining data from the Transportation Security Administration, which collects some of the data that would be found in the Waybill Sample. (Id.) Lastly, the AAR suggests that, if the Board were to collect 100% of TIH waybill data, then the Board should restrict access to the data and house the data in a secure separate file. (Id. at 10-14.)

    2 Federal agencies view TIH movements as a potential target for terrorist activity and consider detailed information pertaining to TIH movements as sensitive security information (SSI). See, e.g., Federal R.R. Admin. Order, Designation of Sensitive Security Information under 49 U.S.C. 40119(b), SSI Order 2011-06-FRA-01 (July 29, 2011), http://www.stb.dot.gov/stb/industry/Rate_Cases.htm (follow “Federal Railroad Administration, July 29, 2011” hyperlink).

    The Board appreciates and understands the AAR's concerns about security as it relates to TIH traffic. Without commenting on the AAR's suggested alternatives, we will discontinue this proceeding. Taking into consideration the security concerns raised and the lack of broader comment on the NPR, we will not move forward with the proposed rule and will discontinue this docket in the interest of administrative finality. However, the Board will consider ways to address this issue as part of future proceedings.

    Decided: July 21, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Commissioner Begeman commented with a separate expression.

    COMMISSIONER BEGEMAN, commenting:

    This proceeding was initiated in January 2010, well before a majority of the current members began serving here. The only real action that has occurred on this matter that I am aware of was when the Association of American Railroads filed its comments in March 2010. Since that time, the Board could have worked to meaningfully address AAR's concerns and ultimately improve the proposal. Yet no such effort occurred. Therefore, the best course of action for this proceeding—one that has been effectively dormant for over six years—is for it to be discontinued, regardless of the proposal's potential merits.

    This proceeding is just one example of why I believe Congress has directed the Board to issue quarterly reporting on all of its outstanding rulemaking proposals. We simply must do more to improve the timeliness of all Board actions.

    Kenyatta Clay, Clearance Clerk.
    [FR Doc. 2016-17883 Filed 7-27-16; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 RIN 0648-XD649 Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Fisheries in the Gulf of Alaska; Reopening of Comment Period AGENCY:

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

    ACTION:

    Notice of intent to prepare an environmental impact statement; reopening of public comment period.

    SUMMARY:

    NMFS, in consultation with the North Pacific Fishery Management Council (Council), announces its intent to expand the scope of an Environmental Impact Statement (EIS) for a new bycatch management program for trawl groundfish fisheries in the Gulf of Alaska (GOA). The bycatch management program for the GOA trawl groundfish fisheries would provide participants with incentives to effectively manage and reduce Chinook salmon and Pacific halibut bycatch and promote increased utilization of groundfish harvested in the GOA. NMFS previously published a notice of intent to prepare an EIS for the new bycatch management program on July 14, 2015. In June 2016, NMFS and the Council decided to reopen the comment period on the notice of intent to prepare an EIS because the Council and NMFS expanded scope of the EIS. NMFS will accept written comments from the public to identify issues of concern and assist the Council in determining the appropriate range of management alternatives for the EIS.

    DATES:

    The comment period for the notice of intent published on July 14, 2015 (80 FR 40988) is reopened. Written comments will be accepted through September 26, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2014-0150, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0150, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Rachel Baker, (907) 586-7228 or email [email protected].

    SUPPLEMENTARY INFORMATION: Background

    The Council is considering the establishment of a new bycatch management program for the GOA trawl groundfish fisheries. On July 14, 2015, NMFS announced its intent to prepare an EIS pursuant to the National Environmental Policy Act (NEPA) on the proposed bycatch management program (80 FR 40988). In the notice of intent, NMFS requested input from the public on the scope of the EIS, in addition to seeking comment for a range of reasonable alternatives and impacts to affected resources. NMFS received 36 public comments during the scoping period and provided a scoping report to the Council in October 2015. Based on the comments received on the July 14, 2015, notice of intent and on public input received by the Council at 10 of its meetings between October 2012 and June 2016, NMFS and the Council have decided to seek additional public input to assist them in determining the appropriate range of management alternatives for the EIS. The July 14, 2015, notice of intent provides additional detail on the GOA trawl groundfish fisheries and the proposed EIS (80 FR 40988).

    NMFS and the Council have determined the preparation of an EIS may be required for the proposed action because some important aspects of the bycatch management program on target and bycatch species and their users may be uncertain or unknown and may result in significant impacts on the human environment not previously analyzed. NMFS and the Council are seeking information from the public through the EIS scoping process on the range of alternatives to be analyzed, and on the environmental, social, and economic issues to be considered in the analysis. Written comments generated during the previous scoping process and this scoping process will be provided to the Council and incorporated into the EIS for the proposed action.

    Authority for the Proposed Action

    Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the United States has exclusive fishery management authority over all fishery resources found within the exclusive economic zone (EEZ). The management of these fishery resources is vested in the Secretary of Commerce (Secretary). The Council has the responsibility to prepare fishery management plans for the fishery resources that require conservation and management in the EEZ off Alaska. Management of the Federal groundfish fisheries in the GOA is carried out under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The FMP, its amendments, and implementing regulations (found at 50 CFR part 679) are developed in accordance with the requirements of the Magnuson-Stevens Act and other applicable Federal laws and executive orders, notably the NEPA and the Endangered Species Act (ESA).

    Development of the Proposed Action

    In October 2012, the Council unanimously adopted a purpose and need statement, and goals and objectives, to support the development of a proposed bycatch management program that would allocate exclusive harvest privileges for target groundfish species and prohibited species catch (PSC) to individuals, cooperatives, or other entities. Allocation of allowable harvests in the form of exclusive harvest privileges is a type of management approach that replaces the rigid management structure of a derby fishery with a flexible program that provides vessel-level accountability for harvests and removes disincentives to controlling and reducing bycatch and waste. Allocating exclusive harvest privileges to fishery participants can mitigate the potential negative impacts of a derby fishery on target and prohibited species, and on the operational and economic efficiency of the fisheries. In this type of management approach, a portion of the catch for a species (the exclusive harvest privilege) is allocated to individual fishermen, cooperatives, or other entities. Each participant in the fishery must have an exclusive harvest privilege, and each holder of harvest privileges must stop fishing when the holder's specific share of the quota is reached. The allocation of exclusive harvest privileges removes incentives for each participant to maximize catch rates to capture a larger share of the available catch before the fishery is closed. As a result, participants can make operational choices to improve fishing practices. These choices could include fishing in a slower and more efficient fashion, using modified gear with a lower harvest rate but which reduces bycatch, coordinating with other vessel operators to avoid areas of high bycatch, and processing fish in ways that yield increased value but which are possible only by slowing the pace of the fishery. This management approach allows fishermen to plan their fishing effort around the weather, markets, or other business considerations and allows other fishery dependent businesses to plan more effectively.

    The Council has recommended and NMFS has implemented groundfish management programs in the EEZ off Alaska that allocate exclusive harvest privileges to fishery participants. These programs allocated a long-term exclusive harvest privilege to initially qualified participants for target groundfish species and PSC. The long-term exclusive harvest privilege yields an annual allocation of a portion of the TAC for target groundfish species and a portion of the applicable PSC limit. Based on experience with these programs, the Council and NMFS have determined that allocating exclusive harvest privileges of target groundfish species and PSC creates a structure for fishery participants to efficiently manage harvesting and processing activities that can result in reduced bycatch and improved utilization of groundfish fisheries. Additional information on these management programs is provided in the final rules implementing the American Fisheries Act in the Bering Sea (67 FR 79692, December 30, 2002), the Amendment 80 Program in the Bering Sea and Aleutian Islands (72 FR 52668, September 14, 2007), and the Rockfish Program in the Central GOA (76 FR 81248, December 27, 2011).

    The Council continued to develop and refine its purpose and need and goals and objectives for a proposed bycatch management program for the GOA trawl groundfish fisheries at six of its meetings between October 2012 and October 2014. During this time period, the Council received testimony from stakeholders that the allocation of long-term exclusive harvest privileges can reduce opportunities for new participants to enter the fisheries. These stakeholders noted that the long-term exclusive harvest privileges allocated in previous management programs have acquired a high value as the overall value of the fishery increased. This has created a high cost of entry for new participants because they must purchase long-term exclusive harvest privileges to participate in the fisheries. The stakeholders indicated that the high cost of entry has resulted in economic barriers to new entry in these fisheries and requested that the Council consider measures to minimize these economic barriers in the proposed bycatch management program. The Council also received testimony indicating that the allocation of long-term harvest privileges can adversely impact fishery-dependent communities through fleet consolidation and changes in the distribution of fishery benefits.

    In October 2015, the Council stated its intent to address concerns about potential economic barriers for new participants and adverse impacts on communities by including a new type of proposed bycatch management program that would allocate only PSC on an annual basis to individuals or cooperatives rather than allocating long-term exclusive harvest privileges for both target groundfish species and PSC. In June 2016, the Council identified an overarching goal and objective for the proposed bycatch management program to minimize economic barriers for new participants and maintain opportunities for entry into the trawl groundfish fisheries by limiting the type and duration of exclusive harvest privileges that may be allocated under the proposed bycatch management program. The Council also stated its intent to seek public input on additional mechanisms to limit exclusive harvesting privileges that may be allocated under the proposed bycatch management program to meet the Council's goals and objectives for the program.

    Purpose and Need for the Proposed Action

    The Council has identified the following purpose and need statement and goals and objectives for the proposed bycatch management program:

    Purpose and Need Statement:

    Management of Gulf of Alaska (GOA) groundfish trawl fisheries has grown increasingly complicated in recent years due to the implementation of measures to protect Steller sea lions and reduced Pacific halibut and Chinook salmon Prohibited Species Catch (PSC) limits under variable annual total allowable catch (TACs) limits for target groundfish species. These changes complicate effective management of target and non-target resources, and can have significant adverse social and economic impacts on harvesters, processors, and fishery-dependent GOA coastal communities.

    The current management tools in the GOA Groundfish Fishery Management Plan (FMP) do not provide the GOA trawl fleet with the ability to effectively address these challenges, especially with regard to the fleet's ability to best reduce and utilize PSC. As such, the Council has determined that consideration of a new management regime for the GOA trawl fisheries is warranted.

    The purpose of the proposed action is to create a new management structure which allocates prohibited species catch limits and/or allowable harvest to individuals, cooperatives, or other entities, which will mitigate the impacts of a derby-style race for fish. It is expected to improve stock conservation by creating vessel-level and/or cooperative-level incentives to eliminate wasteful fishing practices, provide mechanisms to control and reduce bycatch, and create accountability measures when utilizing PSC and/or target and secondary species. It will also increase at-sea monitoring in the GOA trawl fisheries, have the added benefit of reducing the incentive to fish during unsafe conditions, and improve operational efficiencies.

    The Council recognizes that GOA harvesters, processors, and communities all have a stake in the groundfish trawl fisheries. The new program shall be designed to provide tools for the effective management and reduction of PSC and bycatch, and promote increased utilization of both target and secondary species harvested in the GOA. The program is also expected to increase the flexibility and economic efficiency of the GOA groundfish trawl fisheries and support the continued direct and indirect participation of the coastal communities that are dependent upon those fisheries. These management measures could apply to those species, or groups of species, harvested by trawl gear in the GOA, and/or to PSC. This program will not modify the overall management of other sectors in the GOA, or the Central GOA rockfish program, which already operates under a catch share system.

    Overarching Goal and Objective:

    The overarching goal of the Gulf of Alaska Trawl Bycatch Management program is to provide the fleet tools for the effective management and reduction of PSC and bycatch, and promote increased utilization of both target and secondary species while minimizing economic barriers for new participants by limiting harvest privileges that may be allocated (target species and/or prohibited species) in order to maintain opportunity for entry into the GOA trawl fisheries.

    Goals and Objectives:

    1. Balance the requirements of the National Standards in the Magnuson Stevens Act 2. Increase the ability of the groundfish trawl sector to avoid PSC species and utilize available amounts of PSC more efficiently by allowing groundfish trawl vessels to fish more slowly, strategically, and cooperatively, both amongst the vessels themselves and with shore-based processors 3. Reduce bycatch and regulatory discards by groundfish trawl vessels 4. Authorize fair and equitable access privileges that take into consideration the value of assets and investments in the fishery and dependency on and participation in the fishery for harvesters, processors, and communities 5. Balance interests of all sectors and provide equitable distribution of benefits and similar opportunities for increased value 6. Promote community stability and minimize adverse economic impacts by limiting consolidation, providing employment and entry opportunities, and increasing the economic viability of the groundfish harvesters, processors, and support industries 7. Improve the ability of the groundfish trawl sector to achieve Optimum Yield, including increased product retention, utilization, landings, and value by allowing vessels to choose the time and location of fishing to optimize returns and generate higher yields 8. Increase stability relative to the volume and timing of groundfish trawl landings, allowing processors to better plan operational needs as well as identify and exploit new products and markets 9. Increase safety by allowing trawl vessels to prosecute groundfish fisheries at slower speeds and in better conditions 10. Include measures for improved monitoring and reporting 11. Increase the trawl sector's ability to adapt to applicable Federal law (i.e., Endangered Species Act) 12. Include methods to measure the success and impacts of all program elements 13. Minimize adverse impacts on sectors and areas not included in the program 14. Promote active participation by owners of harvest vessels and fishing privileges Proposed Action

    The proposed action to be analyzed in the EIS is a bycatch management program for the GOA trawl groundfish fisheries that would provide participants with incentives to effectively manage bycatch and reduce PSC, and that would promote increased utilization of groundfish harvested in the GOA. The proposed action is intended to improve stock conservation by imposing accountability measures for utilizing target and incidental catch and minimizing PSC to the extent practicable, creating incentives to eliminate wasteful fishing practices, providing mechanisms for participants to control and reduce bycatch in the trawl groundfish fisheries, and improving safety of life at sea and operational efficiencies. The proposed action would apply to participants in Federal groundfish fisheries prosecuted with trawl gear in the following areas: (1) The Western GOA Regulatory Area (Western GOA), (2) the Central GOA Regulatory Area (Central GOA), and (3) the West Yakutat District of the Eastern GOA Regulatory Area (West Yakutat District). These areas are defined at § 679.2 and shown in Figure 3 to 50 CFR part 679.

    Alternatives

    NMFS, in coordination with the Council, will evaluate a range of alternative bycatch management programs for the trawl groundfish fisheries in the Western GOA, Central GOA, and West Yakutat District. NMFS and the Council recognize that implementation of a GOA trawl bycatch management program would result in substantial changes to many of the current management measures for the GOA groundfish fisheries. The EIS will analyze these changes as well as alternative ways to manage target and incidental groundfish species and PSC in the GOA groundfish fisheries. The potential alternatives already identified for the bycatch management program are available on the Council's Web site at http://www.npfmc.org/goa-trawl-bycatch-management/. The following briefly summarizes the potential alternatives already identified for the EIS:

    Alternative 1

    Alternative 1 is the no action alternative (status quo). The Council and NMFS annually establish biological thresholds and annual total allowable catch limits for groundfish species to sustainably manage the groundfish fisheries in the GOA. The Council and NMFS implemented the license limitation program (LLP), which limits access to the groundfish fisheries in the GOA. The groundfish LLP requires each vessel in the GOA to have an LLP license on board the vessel at all times while directed fishing for license limitation groundfish, with limited exemptions. The preamble to the final rule implementing the groundfish LLP provides a more detailed explanation of the rationale for specific provisions in the LLP (October 1, 1998; 63 FR 52642).

    While the LLP limits the total number of vessels that can participate in the GOA groundfish fisheries, it does not limit harvest by individual vessels or assign exclusive harvest privileges to specific vessels or entities. This has led to a competitive derby fishery in the GOA groundfish fisheries, in which fishermen race against each other to harvest as much fish as they can before the annual catch limit or the PSC limit is reached and the fishery is closed for the season. A derby fishery relies on a fairly rigid management structure that is not adaptable to changes in weather, markets, or other operating considerations. Therefore, a derby fishery often results in shorter fishing seasons and unsafe fishing practices. It can also create a substantial disincentive for participants to take actions to reduce bycatch use and waste, particularly if those actions could reduce groundfish catch rates. In a derby fishery, participants who choose not to take actions to reduce bycatch and waste stand to gain additional groundfish catch by continuing to harvest at a higher bycatch rate, at the expense of any vessels engaged in bycatch avoidance.

    The Council has designated Pacific salmon and Pacific halibut, along with several other species (Pacific herring, steelhead trout, king crab, and Tanner crab) as prohibited species in the GOA groundfish fisheries. Prohibited species are species taken incidentally in the groundfish trawl fisheries and designated as “prohibited species” because they are target species in other, fully utilized domestic fisheries. The Council has recommended and NMFS has implemented various measures to control the catch of such prohibited species in GOA groundfish fisheries. Prohibited species incidentally caught while directed fishing for groundfish in the GOA may not be sold or kept for personal use and must be discarded with a minimum of injury. In addition, the GOA groundfish fishery restrictions include PSC limits for Chinook salmon and Pacific halibut to constrain the amount of bycatch of these species in the groundfish fisheries. When harvest of prohibited species in a groundfish fishery reaches the specified PSC limit for that fishery, NMFS closes directed fishing for the target groundfish species, even if the total allowable catch limit for that target groundfish species has not been fully harvested.

    Alternative 2

    Alternative 2 is a bycatch management program that would allocate exclusive harvest privileges to participants in the Western GOA, Central GOA, and West Yakutat District trawl groundfish fisheries who voluntarily join a cooperative. Participants who do not choose to join a cooperative would have the opportunity to participate in the current limited access management system under the groundfish LLP. In Alternative 2, the Council is considering allocating exclusive harvest privileges for target groundfish species and Chinook salmon and Pacific halibut PSC to cooperatives. Alternative 2 contains several elements and options for determining eligible participants, groundfish species and PSC to be allocated, and methods for determining allocations to cooperatives and the limited access fishery. Alternative 2 includes elements and options for cooperative formation and membership that are intended to provide incentives for participation by harvesters and processors to improve coordination and operational efficiencies. Alternative 2 also contains a number of elements that are intended to provide for fishery dependent community stability, such as harvest privilege consolidation limits and area- and port-specific delivery requirements.

    Alternative 3

    Alternative 3 is a bycatch management program that would allocate Chinook salmon and Pacific halibut PSC to participants in the Western GOA, Central GOA, and West Yakutat District trawl groundfish fisheries who voluntarily join a cooperative. Participants who do not choose to join a cooperative would have the opportunity to participate in the current limited access management system under the groundfish LLP. Alternative 3 contains several elements and options for determining eligible participants and methods for determining PSC allocations to cooperatives and the limited access management fishery. Alternative 3 also includes elements and options for cooperative formation and membership that are intended to provide incentives for participation by harvesters and processors to improve coordination and operational efficiencies.

    Alternative 4

    Alternative 4 is a bycatch management program that would allocate exclusive harvest privileges to fishery participants who voluntarily join a cooperative under Alternative 2 and either (1) a Community Fishing Association as defined in section 303A(c)(3) of the Magnuson-Stevens Act or (2) an Adaptive Management Program. Participants who do not choose to join a cooperative would have the opportunity to participate in the current limited access management system under the groundfish LLP. In Alternative 4, the Council is considering allocating exclusive harvest privileges for target groundfish species and PSC to cooperatives and either a Community Fishing Association or to persons who meet the criteria established for an Adaptive Management Program. The allocation to a Community Fishing Association or Adaptive Management Program would meet objectives that include providing for sustained participation of fishing communities, promoting conservation measures, and assisting vessel owner-operators, captains, and crew who want to enter and participate in the GOA trawl groundfish fisheries.

    Public Involvement

    Scoping is an early and open process for determining the scope of issues to be addressed in an EIS and for identifying the significant issues related to the proposed action. A principal objective of the scoping and public involvement process is to identify a range of reasonable management alternatives that, with adequate analysis, will delineate critical issues and provide a clear basis for distinguishing among those alternatives and selecting a preferred alternative. Through this notice, NMFS is reopening the comment period on scoping for the EIS for the proposed bycatch management program so that interested or affected people may participate and contribute to the final decision.

    NMFS is reopening the comment period to seek written public comments on the scope of issues, including potential impacts, and alternatives that should be considered for a bycatch management program for the trawl groundfish fisheries in the Western GOA, Central GOA, and West Yakutat District of the GOA. NMFS will consider written public comments received during this scoping process, as well as those received during the scoping process from July 14, 2015, through August 28, 2015 (80 FR 40988), and provide the Council with a summary of all written comments received to assist the Council in determining the appropriate range of management alternatives for the EIS. Written comments should be as specific as possible to be the most helpful. Written comments received during the scoping process, including the names and addresses of those submitting them, will be considered part of the public record of the proposed action and will be available for public inspection. Written comments will be accepted at the address above (see ADDRESSES). Please visit the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov for more information on the GOA trawl bycatch management program EIS and for guidance on submitting effective written public comments.

    The public is invited to participate and provide input at Council meetings where the latest scientific information regarding the GOA groundfish fisheries is reviewed and alternative bycatch management programs are developed and evaluated. Notice of future Council meetings will be published in the Federal Register and on the Internet at http://www.npfmc.org/. Please visit this Web site for information and guidance on participating in Council meetings. Additional information on the Council's development of the GOA trawl bycatch management program is available at http://www.npfmc.org/goa-trawl-bycatch-management/.

    Authority:

    16 U.S.C. 1801 et. seq.

    Dated: July 25, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-17879 Filed 7-27-16; 8:45 am] BILLING CODE 3510-22-P
    81 145 Thursday, July 28, 2016 Notices COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the New Mexico Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the New Mexico Advisory Committee to the Commission will convene at 11:00 a.m. (MDT) on Thursday, August 4, 2016, via teleconference. The purpose of the meeting is to review and comment on transcript of the June 24, 2016 briefing meeting on Elder Abuse. The committee will also discuss next steps for the project.

    Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-888-481-2844; Conference ID: 7748208. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-977-8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1-888-481-2844, Conference ID: 7748208. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, September 5, 2016. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=264 and clicking on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Rocky Mountain Regional Office at the above phone number, email or street address.

    AGENDA:

    • Welcome and Roll-call Sandra Rodriguez, Chair, New Mexico Advisory Committee Malee V. Craft, Regional Director, Rocky Mountain Regional Office (RMRO) • Review and receive comments on transcript of June 24, 2016 briefing meeting on Elder Abuse • Next Steps DATES:

    Thursday, August 4, 2016, at 11:00 a.m. (MDT)

    ADDRESSES:

    To be held via teleconference:

    Conference Call Toll-Free Number: 1-888-481-2844, Conference ID: 7748208.

    TDD: Dial Federal Relay Service 1-800-977-8339 and give the operator the above conference call number and conference ID.

    FOR FURTHER INFORMATION CONTACT:

    Malee V. Craft, DFO, [email protected], 303-866-1040.

    Exceptional Circumstance: Pursuant to 41 CFR 102-3.150, the notice for this meeting is given less than 15 calendar days prior to the meeting because of the exceptional circumstances of an administrative exceptional circumstance. Given the exceptional urgency of the events, the agency and advisory committee deem it important for the advisory committee to meet on the date given.

    Dated: July 22, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-17817 Filed 7-27-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-47-2016] Foreign-Trade Zone (FTZ) 249—Pensacola, Florida; Notification of Proposed Production Activity GE Renewables North America, LLC, Subzone 249A, (Wind Turbine Nacelles, Hubs, and Drivetrains), Pensacola, Florida

    GE Renewables North America, LLC (GE Renewables) submitted a notification of proposed production activity to the FTZ Board for its facility in Pensacola, Florida within Subzone 249A. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on July 22, 2016.

    GE Renewables already has authority to produce wind turbines and related hubs and nacelles within Subzone 249A and also has a request pending to add foreign status materials/components to the scope of authority (Doc. B-41-2016). The current request would add a finished product and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt GE Renewables from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, GE Renewables would be able to choose the duty rates during customs entry procedures that apply to: wind turbines and related hubs and nacelles; and, repower drivetrain assemblies (duty-free or 2.5%) for the foreign-status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The materials/components sourced from abroad include the following repower drivetrain components: Brake calipers; brake hydraulic power units; gearboxes; main bearings; main shafts; and, pillow blocks (duty rate ranges from duty-free to 5.8%).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is September 6, 2016.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Elizabeth Whiteman at [email protected] or (202) 482-0473.

    Dated: July 25, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-17892 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-46-2016] Foreign-Trade Zone (FTZ) 189—Kent/Ottawa/Muskegon Counties, Michigan; Notification of Proposed Production Activity; Adient US LLC; Subzone 189D (Motorized Seat Adjusters for Motor Vehicles); Holland and Zeeland, Michigan

    Adient US LLC (Adient), owned by Johnson Controls, Inc., submitted a notification of proposed production activity to the FTZ Board for its facilities within FTZ 189D, at sites in Holland and Zeeland, Michigan. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on July 13, 2016.

    The facilities are used for the production of motorized seat adjusters for motor vehicles. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status components and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Adient from customs duty payments on the foreign-status components used in export production. On its domestic sales, Adient would be able to choose the duty rate during customs entry procedures that applies to motorized seat adjusters (duty free) for the foreign-status electric seat adjuster motors (duty rate—2.8%). Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is September 6, 2016.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Diane Finver at [email protected] or (202) 482-1367.

    Dated: July 21, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-17807 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-50-2016] Approval of Subzone Status—Flemish Master Weavers—Sanford, Maine

    On April 21, 2016, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of Waterville, grantee of FTZ 186, requesting subzone status subject to the existing activation limit of FTZ 186, on behalf of Flemish Master Weavers in Sanford, Maine.

    The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (81 FR 25374-25375, 04-28-2016). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval. Pursuant to the authority delegated to the FTZ Board's Executive Secretary (15 CFR 400.36(f)), the application to establish Subzone 186A is approved, subject to the FTZ Act and the Board's regulations, including section 400.13, and further subject to FTZ 186's 2,000-acre activation limit.

    Dated: July 22, 2016. Elizabeth Whiteman, Acting Executive Secretary.
    [FR Doc. 2016-17891 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-871, A-475-835, A-469-815] Finished Carbon Steel Flanges From India, Italy, and Spain: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: July 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Fred Baker at (202) 482-2924 (India); Moses Song or Edythe Artman at (202) 482-5041 or (202) 482-3931, respectively (Italy); and Michael Heaney at (202) 482-4475 (Spain), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: The Petitions

    On June 30, 2016, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of finished carbon steel flanges (steel flanges) from India, Italy, and Spain, filed in proper form on behalf of Weldbend Corporation and Boltex Mfg. Co., L.P. (Petitioners).1 The Petitions were accompanied by a countervailing duty (CVD) petition on steel flanges from India.2 Petitioners are domestic producers of steel flanges.3

    1See Petitions for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from India, Italy and Spain and Countervailing Duties on Imports from India, dated June 30, 2016 (the Petitions).

    2Id.

    3See Volume I of the Petitions, at 2, and Exhibit I-15.

    On July 6, 8, and 12, 2016, the Department requested additional information and clarification of certain areas of the Petitions.4 Petitioners filed responses to these requests on July 8 and 13, 2016, respectively.5

    4See Letter from the Department to Petitioners entitled “Petitions for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from India, Italy, and Spain and Countervailing Duties on Imports from India: Supplemental Questions,” dated July 6, 2016 (General Issues Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from India: Supplemental Questions,” dated July 6, 2016 (India Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from Italy: Supplemental Questions,” dated July 6, 2016 (Italy Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from Spain: Supplemental Questions,” dated July 6, 2016 (Spain Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petitions for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from India, Italy, and Spain and Countervailing Duties on Imports from India: Supplemental Questions,” dated July 8, 2016 (Second General Issues Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from Italy: Supplemental Questions,” dated July 12, 2016 (Italy Second Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from Italy: Supplemental Questions,” dated July 12, 2016 (Spain Second Supplemental Questionnaire).

    5See Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from India, Italy and Spain: Supplemental Questionnaire Response Regarding the Antidumping Petition—General Questions,” dated July 8, 2016 (General Issues Supplement); see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from India: Supplemental Questionnaire Response Regarding the Antidumping Petition—General Questions,” dated July 8, 2016 (India Supplement); see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from Italy: Supplemental Questionnaire Response Regarding the Antidumping Petition—General Questions,” dated July 8, 2016 (Italy Supplement); see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from Spain: Supplemental Questionnaire Response Regarding the Antidumping Petition—General Questions,” dated July 8, 2016 (Spain Supplement); see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from India, Italy and Spain: 2nd Supplemental Questions Response,” dated July 13, 2016 (Second General Issues Supplement) see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from ltaly: 2nd Supplemental Questionnaire Response,” dated July 8, 2016 (Italy Second Supplement); see also Letter from Petitioner to the Department entitled “Re: Finished Carbon Steel Flanges from Spain: 2nd Supplemental Questionnaire Response,” dated July 8, 2016 (Spain Second Supplement).

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that imports of steel flanges from India, Italy, and Spain are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed these Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioners are requesting.6

    6See the “Determination of Industry Support for the Petitions” section below.

    Period of Investigation

    Because the Petitions were filed on June 30, 2016, the period of investigation (POI) for each investigation is, pursuant to 19 CFR 351.204(b)(1), April 1, 2015, through March 31, 2016.

    Scope of the Investigations

    The product covered by these investigations is steel flanges from India, Italy, and Spain. For a full description of the scope of these investigations, see the “Scope of the Investigations,” at Appendix I of this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See General Issues Supplemental Questionnaire and Second General Issues Supplemental Questionnaire; see also General Issues Supplement and Second General Issues Supplement.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determinations. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Daylight Time (EDT) on August 9, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. EDT on August 19, 2016, which is 10 calendar days after the initial comments.

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).8 An electronically filed document must be received successfully in its entirety by the time and date when it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    8See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department will be giving interested parties an opportunity to provide comments on the appropriate physical characteristics of steel flanges to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.

    Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe steel flanges, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all comments must be filed by 5:00 p.m. EDT on August 9, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. EDT on August 19, 2016. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of the India, Italy, and Spain less-than-fair-value investigations, as well as the India countervailing duty investigation.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,9 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.10

    9See section 771(10) of the Act.

    10See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that steel flanges constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product.11

    11 For a discussion of the domestic like product analysis in this case, see Antidumping Duty Investigation Initiation Checklist: Finished Carbon Steel Flanges from India (India AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Finished Carbon Steel Flanges from India, Italy, and Spain (Attachment II); Antidumping Duty Investigation Initiation Checklist: Finished Carbon Steel Flanges from Italy (Italy AD Initiation Checklist), at Attachment II; and Antidumping Duty Investigation Initiation Checklist: Finished Carbon Steel Flanges from Spain (Spain AD Initiation Checklist), at Attachment II. These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. Petitioners provided their production of the domestic like product in 2015,12 as well as an estimate of the total 2015 production of the domestic like product for the entire domestic industry.13 To establish industry support, Petitioners compared their own production to the estimated total production of the domestic like product for the entire domestic industry.14

    12See Volume I of the Petitions, at Exhibits I-15-A and I-15-B.

    13See Volume I of the Petitions, at Exhibit I-15.

    14Id.

    Our review of the data provided in the Petitions and other information readily available to the Department indicates that Petitioners have established industry support.15 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).16 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.17 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.18 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    15See India AD Initiation Checklist, Italy AD Initiation Checklist, and Spain AD Initiation Checklist, at Attachment II.

    16See section 732(c)(4)(D) of the Act; see also India AD Initiation Checklist, Italy AD Initiation Checklist, and Spain AD Initiation Checklist, at Attachment II.

    17See India AD Initiation Checklist, Italy AD Initiation Checklist, and Spain AD Initiation Checklist, at Attachment II.

    18Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the AD investigations that they are requesting the Department initiate.19

    19See India AD Initiation Checklist, Italy AD Initiation Checklist, and Spain AD Initiation Checklist, at Attachment II.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.20

    20See Volume I of the Petitions, at 18-19; see also General Issues Supplement, at 6 and Exhibit 3.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share, underselling and price suppression or depression, lost sales and revenues, declines in production, capacity utilization, and U.S. shipments, negative impact on employment variables, and decline in financial performance.21 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.22

    21See Volume I of the Petitions, at 12-16, 18-34 and Exhibits I-2, I-9 and I-11 through I-14; see also General Issues Supplement, at 6 and Exhibit 3.

    22See India AD Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Finished Carbon Steel Flanges from the India, Italy, and Spain (Attachment III); see also Italy AD Checklist, at Attachment III; and Spain AD Checklist, at Attachment III.

    Allegations of Sales at Less-Than-Fair Value

    The following is a description of the allegations of sales at less-than-fair value upon which the Department based its decision to initiate investigations of imports of steel flanges from India, Italy, and Spain. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For India, Italy, and Spain, Petitioners based export price (EP) U.S. prices on average unit values (AUVs) calculated using publicly available import statistics from the ITC's Dataweb for each country under the relevant Harmonized Tariff Schedule of the United States (HTSUS) subheadings for steel flanges.23 To calculate ex-factory prices, Petitioners made deductions from U.S. price for movement expenses, consistent with the manner in which the data is reported in Dataweb.24

    23See India AD Checklist, Italy AD Checklist, and Spain AD Checklist.

    24Id.

    Normal Value

    For India and Italy, Petitioners provided home market price information obtained through market research for steel flanges produced and offered for sale in India and Italy,25 and supported this information with an affidavit or declaration from a market researcher for the price information.26 Petitioners made no adjustments to the India or Italy offer price to calculate NV, as none were warranted by the terms associated with the offers.27

    25See India AD Checklist and Italy AD Checklist.

    26See India AD Checklist, Italy AD Checklist, and Spain AD Checklist.

    27See India AD Checklist and Italy AD Checklist.

    Normal Value Based on Constructed Value

    Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM), SG&A expenses, financial expenses, and packing expenses. Petitioners calculated COM based on Petitioners' experience, adjusted for known differences between producing in the United States and producing in the respective country (i.e., Italy and Spain), during the proposed POI.28 Using publicly-available data to account for price differences, Petitioners multiplied the surrogate usage quantities by the submitted value of the inputs used to manufacture steel flanges in each country.29 For Italy and Spain, labor rates were derived from publicly available sources multiplied by the product-specific usage rates.30 For Italy and Spain, to determine factory overhead, SG&A, and financial expense rates, Petitioners relied on financial statements of companies that were producers of identical or comparable merchandise operating in the respective foreign country.31

    28See Italy AD Checklist and Spain AD Checklist.

    29See Italy AD Checklist and Spain AD Checklist.

    30Id.

    31Id.

    For Italy, pursuant to sections 773(a)(4), 773(b), and 773(e) of the Act, Petitioners provided information that sales of steel flanges in the home market were made at prices below the cost of production (COP) and also calculated NV based on constructed value (CV).32 For Spain, Petitioners were unable to obtain home market prices and, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, calculated NV based on CV.33 Pursuant to section 773(e) of the Act, CV consists of the COM, SG&A expenses, financial expenses, packing expenses, and profit. Petitioners calculated CV using the same average COM, SG&A expenses, and financial expenses, used to calculate COP.34 Petitioners relied on the financial statements of the same producers that they used for calculating manufacturing overhead, SG&A expenses, and financial expenses to calculate the profit rate.35

    32See Italy AD Checklist.

    33See Spain AD Checklist.

    34See Italy AD Checklist and Spain AD Checklist.

    35Id.

    Fair Value Comparisons

    Based on the data provided by Petitioners, there is reason to believe that imports of steel flanges from India, Italy, and Spain, are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of EP to NV in accordance with section 773(a) of the Act, the estimated dumping margin(s) for steel flanges are as follows: (1) India ranges from 17.80 to 37.84 percent; 36 (2) Italy ranges from 15.76 percent to 204.53 percent; 37 and (3) Spain ranges from 13.19 percent to 24.43 percent.38

    36See India AD Checklist.

    37See Italy AD Checklist.

    38See Spain AD Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the AD Petitions on steel flanges from India, Italy, and Spain, we find that Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of steel flanges for India, Italy, and Spain are being, or are likely to be, sold in the United States at less-than-fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.39 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.40 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these AD investigations.41

    39See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    40See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice).

    41Id., at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    Petitioners named 31 companies in India, 26 companies in Italy, and 6 companies in Spain as producers/exporters of steel flanges.42 Following standard practice in AD investigations involving market economy countries, in the event the Department determines that the number of companies is large and it cannot individually examine each company based upon the Department's resources, where appropriate, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States numbers listed with the scope in Appendix I, below. We also intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO on the record within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of these investigations. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments.

    42See Volume I of the Petitions, at Exhibit I-6, Exhibit I-7, and Exhibit I-8.

    Comments for the above-referenced investigations must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. EDT by the dates noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of India, Italy, and Spain via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of steel flanges from India, Italy, and Spain are materially injuring or threatening material injury to a U.S. industry.43 A negative ITC determination for any country will result in the investigation being terminated with respect to that country; 44 otherwise, these investigations will proceed according to statutory and regulatory time limits.

    43See section 733(a) of the Act.

    44Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in these investigations.

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under part 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under part 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this segment.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.45 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of Petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule.46 The Department intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    45See section 782(b) of the Act.

    46See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to section 777(i) of the Act.

    Dated: July 20, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigations

    The scope of these investigations covers finished carbon steel flanges. Finished carbon steel flanges differ from unfinished carbon steel flanges (also known as carbon steel flange forgings) in that they have undergone further processing after forging, including, but not limited to, beveling, bore threading, center or step boring, face machining, taper boring, machining ends or surfaces, drilling bolt holes, and/or de-burring or shot blasting. Any one of these post-forging processes suffices to render the forging into a finished carbon steel flange for purposes of these investigations. However, mere heat treatment of a carbon steel flange forging (without any other further processing after forging) does not render the forging into a finished carbon steel flange for purposes of these investigations.

    While these finished carbon steel flanges are generally manufactured to specification ASME 816.5 or ASME 816.47 series A or series 8, the scope is not limited to flanges produced under those specifications. All types of finished carbon steel flanges are included in the scope regardless of pipe size (which may or may not be expressed in inches of nominal pipe size), pressure class (usually, but not necessarily, expressed in pounds of pressure, e.g., 150, 300, 400, 600, 900, 1500, 2500, etc.), type of face (e.g., flat face, full face, raised face, etc.), configuration (e.g., weld neck, slip on, socket weld, lap joint, threaded, etc.), wall thickness (usually, but not necessarily, expressed in inches), normalization, or whether or not heat treated. These carbon steel flanges either meet or exceed the requirements of the ASTM A105, ASTM A694, ASTM A181, ASTM A350 and ASTM A707 standards (or comparable foreign specifications). The scope includes any flanges produced to the above-referenced ASTM standards as currently stated or as may be amended. The term “carbon steel” under this scope is steel in which:

    (a) Iron predominates, by weight, over each of the other contained elements:

    (b) The carbon content is 2 percent or less, by weight; and

    (c) none of the elements listed below exceeds the quantity, by weight, as indicated:

    (i) 0.87 percent of aluminum;

    (ii) 0.0105 percent of boron;

    (iii) 10.10 percent of chromium;

    (iv) 1.55 percent of columbium;

    (v) 3.10 percent of copper;

    (vi) 0.38 percent of lead;

    (vii) 3.04 percent of manganese;

    (viii) 2.05 percent of molybdenum;

    (ix) 20.15 percent of nickel;

    (x) 1.55 percent of niobium;

    (xi) 0.20 percent of nitrogen;

    (xii) 0.21 percent of phosphorus;

    (xiii) 3.10 percent of silicon;

    (xiv) 0.21 percent of sulfur;

    (xv) 1.05 percent of titanium;

    (xvi) 4.06 percent of tungsten;

    (xvii) 0.53 percent of vanadium; or

    (xviii) 0.015 percent of zirconium.

    Finished carbon steel flanges are currently classified under subheadings 7307.91.5010 and 7307.91.5050 of the Harmonized Tariff Schedule of the United States (HTSUS). They may also be entered under HTSUS subheadings 7307.91.5030 and 7307.91.5070. The HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope is dispositive.
    [FR Doc. 2016-17931 Filed 7-27-16; 8:45 a.m.] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-044] Antidumping Duty Investigation of 1,1,1,2 Tetrafluoroethane (R-134a) From the People's Republic of China: Postponement of Preliminary Determination of Antidumping Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: July 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5139.

    SUPPLEMENTARY INFORMATION:

    Background

    On March 23, 2016, the Department of Commerce (“Department”) initiated an antidumping duty investigation on 1,1,1,2 Tetrafluoroethane (“R-134a”) from the People's Republic of China (“PRC”).1 The notice of initiation stated that, in accordance with section 733(b)(l)(A) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.205(b)(1), we would issue our preliminary determination no later than 140 days after the date of initiation, unless postponed. Currently, the preliminary determination in this investigation is due no later than August 10, 2016. On July 13, 2016, the American HFC Coalition and its individual members,2 as well as District Lodge 154 of the International Association of Machinists and Aerospace Workers (collectively, “Petitioners”), requested that the Department postpone its preliminary determination for the above mentioned investigation.

    1See Antidumping Duty Investigation of 1,1,1,2 Tetrafluoroethane (“R-134a”) from the People's Republic of China: Initiation of Antidumping Duty Investigation, 81 FR 18830 (April 1, 2016).

    2 The individual members of the American HFC Coalition are: Amtrol Inc., Arkema Inc., The Chemours Company FC LLC, Honeywell International Inc., Hudson Technologies, Mexichem Fluor Inc., and Worthington Industries, Inc.

    Postponement of Preliminary Determination

    Section 733(b)(1) of the Act requires the Department to issue the preliminary determination in an antidumping duty investigation within 140 days after the date on which the Department initiated the investigation. However, if the petitioner makes a timely request for a postponement, section 733(c)(1)(A) of the Act allows the Department to postpone the preliminary determination until no later than 190 days after the date on which the Department initiated the investigation. On July 13, 2016, Petitioners submitted a timely request pursuant to section 733(c)(1)(A) of the Act and 19 CFR 351.205(e).3 The Department finds that there are no compelling reasons to deny Petitioners' request. The Department is postponing the deadline for the preliminary determination to no later than 190 days after the day on which the investigation was initiated, in accordance with section 733(c)(1)(A) of the Act. Accordingly, the Department will issue the preliminary determination in this investigation no later than September 29, 2016. In accordance with section 735(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination of this investigation will continue to be 75 days after the date of the preliminary determination, unless postponed at a later date.

    3See letter from Petitioners, “1,1,1,2 Tetrafluoroethane (R-134a) from the People's Republic of China: Petitioners' Request for Extension of the Antidumping Investigation Preliminary Determination,” dated July 13, 2016.

    This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: July 21, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-17805 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-533-872] Finished Carbon Steel Flanges From India: Initiation of Countervailing Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: July 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Yasmin Bordas at (202) 482-3813, or Davina Friedmann at (202) 482-0698, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: The Petition

    On September 30, 2015, the Department of Commerce (Department) received a countervailing duty (CVD) petition concerning imports of finished carbon steel flanges (steel flanges) from India, filed in proper form on behalf of Weldbend Corporation & Boltex Mfg. Co., L.P. (collectively, Petitioners). The CVD petition was accompanied by antidumping duty (AD) petitions concerning imports of steel flanges from India, Italy, and Spain.1 Petitioners are domestic producers of steel flanges.2

    1See “Petition for the Imposition of Antidumping and Countervailing Duties: Finished Carbon Steel Flanges from India,” dated June 30, 2016 (Petition).

    2See Volume I of the Petition, at 2.

    On July 6, 2016, the Department requested information and clarification for certain areas of the Petition.3 Petitioners filed responses to these requests on July 8, 2016, and July 11, 2016.4

    3See letter from the Department, “Petitions for the Imposition of Antidumping Duties on Imports of Finished Carbon Steel Flanges from India, Italy, and Spain and Countervailing Duties on Imports from India: Supplemental Questions,” dated July 6, 2016 (General Issues Questionnaire); letter from the Department, “Petition for the Imposition of Countervailing Duties on Imports of Carbon Steel Flanges from India: Supplemental Questions,” July 6, 2016 (CVD Deficiency Questionnaire).

    4See letters from Petitioners, “Finished Carbon Steel Flanges from India: Response to Supplemental Questions,” dated July 8, 2016, and July 13, 2016, covering volume I (General Issues Supplement); letters from Petitioners, “Finished Carbon Steel Flanges from India: Response to CVD Supplement” dated July 8, 2016, and July 11, 2016.

    In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that the Government of India (GOI) is providing countervailable subsidies (within the meaning of sections 701 and 771(5) of the Act) to imports of steel flanges from India, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 702(b)(1) of the Act, for those alleged programs in India on which we have initiated a CVD investigation, the Petition is accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed the Petition on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the CVD investigation that Petitioners are requesting.5

    5See the “Determination of Industry Support for the Petition” section below.

    Period of Investigation

    The period of investigation is January 1, 2015, through December 31, 2015.6

    6See 19 CFR 351.204(b)(2).

    Scope of the Investigation

    The product covered by this investigation is steel flanges from India. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Comments on Scope of the Investigation

    During our review of the Petitions, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See General Issues Supplemental Questionnaire and Second General Issues Supplemental Questionnaire; see also General Issues Supplement and Second General Issues Supplement.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determinations. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Daylight Time (EDT) on August 9, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. EDT on August 19, 2016, which is 10 calendar days after the initial comments.

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).8 An electronically-filed document must be received successfully in its entirety by the time and date it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    8See 19 CFR 351.303 (for general filing requirements); Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011), for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Consultations

    Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the GOI of the receipt of the Petition. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOI the opportunity for consultations with respect to the CVD petition. On July 19, 2016, consultations were held with the GOI. All invitation letters and memoranda regarding these consultations are on file electronically via ACCESS.

    Determination of Industry Support for the Petition

    Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,9 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.10

    9 See section 771(10) of the Act.

    10See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petition).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that steel flanges constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product.11

    11 For a discussion of the domestic like product analysis in this case, see Countervailing Duty Investigation Initiation Checklist: Finished Carbon Steel Flanges from India (India CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Finished Carbon Steel Flanges from India, Italy, and Spain (Attachment II). This checklist is dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. Petitioners provided their production of the domestic like product in 2015,12 as well as an estimate of the total 2015 production of the domestic like product for the entire domestic industry.13 To establish industry support, Petitioners compared their own production to the estimated total production of the domestic like product for the entire domestic industry.14

    12See Volume I of the Petition, at Exhibits I-15-A and I-15-B.

    13See Volume I of the Petition, at Exhibits I-15-A and I-15-B.

    14Id.

    Our review of the data provided in the Petition and other information readily available to the Department indicates that Petitioners have established industry support.15 First, the Petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).16 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petition account for at least 25 percent of the total production of the domestic like product.17 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition.18 Accordingly, the Department determines that the Petition was filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.

    15See India CVD Initiation Checklist, at Attachment II.

    16See section 702(c)(4)(D) of the Act; see also India CVD Initiation Checklist, at Attachment II.

    17See India CVD Initiation Checklist, at Attachment II.

    18Id.

    The Department finds that Petitioners filed the Petition on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the CVD investigation that they are requesting the Department initiate.19

    19Id.

    Injury Test

    Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India materially injure, or threaten material injury to, a U.S. industry.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.20

    20See Volume I of the Petition, at 18-19; see also General Issues Supplement, at 6 and Exhibit 3.

    In CVD petitions, section 771(24)(B) of the Act provides that imports of subject merchandise from developing and least developed countries must exceed the negligibility threshold of four percent. The import data provided by Petitioners demonstrate that subject imports from India, which has been designated as a least developed country,21 exceed the negligibility threshold provided for under section 771(24)(B) of the Act.22

    21See section 771(36)(B) of the Act.

    22See Volume I of the Petition, at 18-19; see also General Issues Supplement, at 6 and Exhibit 3.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share, underselling and price suppression or depression, lost sales and revenues, declines in production, capacity utilization, and U.S. shipments, negative impact on employment variables, and decline in financial performance.23 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.24

    23See Volume I of the Petition, at 12-16, 18-34 and Exhibits I-2, I-9 and I-11 through I-14; see also General Issues Supplement, at 6 and Exhibit 3.

    24See India CVD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Finished Carbon Steel Flanges from India, Italy, and Spain.

    Initiation of Countervailing Duty Investigation

    Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that: (1) Alleges the elements necessary for an imposition of a duty under section 701(a) of the Act; and (2) is accompanied by information reasonably available to Petitioners supporting the allegations.

    Petitioners allege that producers/exporters of steel flanges in India benefit from countervailable subsidies bestowed by the GOI. The Department examined the Petition and finds that it complies with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating a CVD investigation to determine whether manufacturers, producers, or exporters of steel flanges from India receive countervailable subsidies from the GOI.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.25 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.26 The amendments to sections 776 and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to this CVD investigation.27

    25See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    26See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice). The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    27See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice), at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 15 of the 99 alleged programs in India. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the India CVD Initiation Checklist. A public version of the initiation checklist for this investigation is available on ACCESS.

    In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.

    Respondent Selection

    Petitioners named 34 companies as producers/exporters of steel flanges in India.28 Following standard practice in CVD investigations, the Department will, where appropriate, select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports of steel flanges during the period of investigation. We intend to release CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of publication of this Federal Register notice. The Department invites comments regarding respondent selection within seven business days of publication of this Federal Register notice.

    28See Volume I of the Petition, at Exhibit I-6.

    Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS, by 5 p.m. EDT by the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice. Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at http://enforcement.trade.gov/apo.

    Distribution of Copies of the Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the GOI via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to each known exporter (as named in the Petition), consistent with 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 702(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of steel flanges from India are materially injuring, or threatening material injury to, a U.S. industry.29 A negative ITC determination will result in the investigation being terminated; 30 otherwise, this investigation will proceed according to statutory and regulatory time limits.

    29See section 703(a)(2) of the Act.

    30See section 703(a)(1) of the Act.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The regulation requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Parties should review the regulations prior to submitting factual information in this investigation.

    Extension of Time Limits Regulation

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this investigation.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.31 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 32 The Department intends to reject factual submissions if the submitting party does not comply with the applicable revised certification requirements.

    31See section 782(b) of the Act.

    32See Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (“Final Rule”); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 702 and 777(i) of the Act.

    Dated: July 20, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigation

    The scope of this investigation covers finished carbon steel flanges. Finished carbon steel flanges differ from unfinished carbon steel flanges (also known as carbon steel flange forgings) in that they have undergone further processing after forging, including, but not limited to, beveling, bore threading, center or step boring, face machining, taper boring, machining ends or surfaces, drilling bolt holes, and/or de-burring or shot blasting. Any one of these post-forging processes suffices to render the forging into a finished carbon steel flange for purposes of this investigation. However, mere heat treatment of a carbon steel flange forging (without any other further processing after forging) does not render the forging into a finished carbon steel flange for purposes of this investigation.

    While these finished carbon steel flanges are generally manufactured to specification ASME 816.5 or ASME 816.47 series A or series 8, the scope is not limited to flanges produced under those specifications. All types of finished carbon steel flanges are included in the scope regardless of pipe size (which may or may not be expressed in inches of nominal pipe size), pressure class (usually, but not necessarily, expressed in pounds of pressure, e.g., 150, 300, 400, 600, 900, 1500, 2500, etc.), type of face (e.g., flat face, full face, raised face, etc.), configuration (e.g., weld neck, slip on, socket weld, lap joint, threaded, etc.), wall thickness (usually, but not necessarily, expressed in inches), normalization, or whether or not heat treated. These carbon steel flanges either meet or exceed the requirements of the ASTM A105, ASTM A694, ASTM A181, ASTM A350 and ASTM A707 standards (or comparable foreign specifications). The scope includes any flanges produced to the above-referenced ASTM standards as currently stated or as may be amended. The term “carbon steel” under this scope is steel in which:

    (a) Iron predominates, by weight, over each of the other contained elements:

    (b) The carbon content is 2 percent or less, by weight; and

    (c) none of the elements listed below exceeds the quantity, by weight, as indicated:

    (i) 0.87 percent of aluminum;

    (ii) 0.0105 percent of boron;

    (iii) 10.10 percent of chromium;

    (iv) 1.55 percent of columbium;

    (v) 3.10 percent of copper;

    (vi) 0.38 percent of lead;

    (vii) 3.04 percent of manganese;

    (viii) 2.05 percent of molybdenum;

    (ix) 20.15 percent of nickel;

    (x) 1.55 percent of niobium;

    (xi) 0.20 percent of nitrogen;

    (xii) 0.21 percent of phosphorus;

    (xiii) 3.10 percent of silicon;

    (xiv) 0.21 percent of sulfur;

    (xv) 1.05 percent of titanium;

    (xvi) 4.06 percent of tungsten;

    (xvii) 0.53 percent of vanadium; or

    (xviii) 0.015 percent of zirconium.

    Finished carbon steel flanges are currently classified under subheadings 7307.91.5010 and 7307.91.5050 of the Harmonized Tariff Schedule of the United States (HTSUS). They may also be entered under HTSUS subheadings 7307.91.5030 and 7307.91.5070. The HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope is dispositive.

    [FR Doc. 2016-17929 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-889] Dioctyl Terephthalate From the Republic of Korea: Initiation of Less-Than-Fair-Value Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: July 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Shanah Lee or Eve Wang, at (202) 482-6386 or (202) 482-6231, AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petition

    On June 30, 2016, the Department of Commerce (“the Department”) received an antidumping duty (“AD”) petition concerning imports of dioctyl terephthalate (“DOTP”) from the Republic of Korea (“Korea”), filed in proper form on behalf of Eastman Chemical Company (“Petitioner”).1 Petitioner is a domestic producer of DOTP.2

    1See the “Petition for the Imposition of Antidumping Duties on Imports of Dioctyl Terephthalate from the Republic of Korea,” dated June 30, 2016 (“Petition”).

    2See Petition, at 3.

    On July 5, 2016, the Department requested additional information and clarification of certain areas of the Petition.3 Petitioner filed its response on July 7, 2016.4

    3See Letter from the Department to Petitioner entitled “Petition for the Imposition of Antidumping Duties on Imports of Dioctyl Terephthalate from the Republic of Korea: Supplemental Questions” dated July 5, 2016.

    4See Letter from Petitioner entitled “Petitioner's Response to the Department's January [sic] 5, 2016 Supplemental Questions Regarding the Petition,” dated July 7, 2016 (“Petition Supplement”).

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), Petitioner alleges that imports of DOTP from Korea are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to Petitioner supporting its allegations.

    The Department finds that Petitioner filed this Petition on behalf of the domestic industry because Petitioner is an interested party as defined in section 771(9)(C) of the Act. The Department also finds that Petitioner demonstrated sufficient industry support with respect to the initiation of the AD investigation that Petitioner is requesting.5

    5See the “Determination of Industry Support for the Petition” section below.

    Period of Investigation

    Because the Petition was filed on June 30, 2016, the period of investigation (“POI”) is, pursuant to 19 CFR 351.204(b)(1), April 1, 2015, through March 31, 2016.

    Scope of the Investigation

    The merchandise covered by this investigation is DOTP from Korea. For a full description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I of this notice.

    Comments on Scope of the Investigation

    During our review of the Petition, the Department issued questions to, and received responses from, Petitioner pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.6

    6See Petition Supplement, at 1-2.

    As discussed in the preamble to the Department's regulations,7 we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determination. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Daylight Time (“EDT”) on Tuesday, August 9, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. EDT on Friday, August 19, 2016, which is ten calendar days after the initial comments deadline.

    7See Antidumping Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997).

    The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”).8 An electronically filed document must be received successfully in its entirety by the time and date when it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    8See 19 CFR 351.303 (for general filing requirements); see also Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and Compliance; Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department requests comments from interested parties regarding the appropriate physical characteristics of DOTP to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.

    Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe DOTP, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all comments must be filed by 5:00 p.m. EDT on August 9, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. EDT on August 19, 2016. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the record of this less-than-fair-value investigation.

    Determination of Industry Support for the Petition

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,9 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.10

    9See section 771(10) of the Act.

    10See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petition).

    With regard to the domestic like product, Petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that DOTP, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.11

    11 For a discussion of the domestic like product analysis in this case, see “AD Investigation Initiation Checklist: Dioctyl Terephthalate from the Republic of Korea (“AD Initiation Checklist”), at Attachment II, Determination of Industry Support for the Petition. This checklist is dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. To establish industry support, Petitioner provided its 2015 production of the domestic like product.12 Petitioner states that it is the only known producer of DOTP in the United States; therefore, the Petition is supported by 100 percent of the U.S. industry.13

    12See Petition, at 3 and Exhibit INJ-4.

    13Id., at 3.

    Our review of the data provided in the Petition and other information readily available to the Department indicates that Petitioner has established U.S. industry support.14 First, the Petition established support from U.S. domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).15 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petition account for at least 25 percent of the total production of the domestic like product.16 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition.17 Accordingly, the Department determines that the Petition was filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    14See AD Initiation Checklist, at Attachment II.

    15See section 732(c)(4)(D) of the Act; see also AD Initiation Checklist, at Attachment II.

    16See AD Initiation Checklist, at Attachment II.

    17Id.

    The Department finds that Petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the AD investigation that it is requesting the Department initiate.18

    18Id.

    Allegations and Evidence of Material Injury and Causation

    Petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (“NV”). In addition, Petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.19 Petitioner contends that the industry's injured condition is illustrated by the impact on the domestic industry's market share, underselling and price suppression or depression, lost sales and revenues, decline in wages and employment, and decline in profitability.20 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.21

    19See Petition, at 13-14; see also Petition Supplement, at 2 and Exhibit Supp-1.

    20See Petition, at 2, 11-35 and Exhibits GEN-3 through GEN-6, GEN-10 and INJ-1 through INJ-7; see also Petition Supplement, at 2-3 and Exhibit Supp-1.

    21See AD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping Duty Petition Covering Dioctyl Terephthalate from the Republic of Korea.

    Allegation of Sales at Less-Than-Fair Value

    The following is a description of the allegation of sales at less-than-fair value upon which the Department based its decision to initiate the investigation of imports of DOTP from Korea. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the AD initiation checklist.

    Export Price

    Petitioner based export prices on a Korean producer's price offerings to its customers in the United States for DOTP produced in, and exported from, Korea during the POI.22 Because the quoted prices included delivery to the customer, Petitioner made a deduction from U.S. price for producer-to-customer freight.23

    22See AD Initiation Checklist; see also Petition, at 38-39 and Exhibits AD-1, AD-5, and AD-6; see also Petition Supplement, at Exhibit Supp-3.

    23See AD Initiation Checklist.

    Normal Value

    Petitioner provided home market price information from an industry report for DOTP produced in and offered for sale in Korea. The home market price information in the industry report included inland freight to the customer in Korea; therefore, Petitioner deducted inland freight expenses to calculate ex-factory prices.24

    24Id.; see also Petition, at Exhibit GEN-10.

    Fair Value Comparisons

    Based on the data provided by Petitioner, there is reason to believe that imports of DOTP from Korea are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of export price to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for DOTP for Korea range from 23.70 to 47.86 percent.25

    25See Petition Supplement, at Exhibit Supp-3. See also AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigation

    Based upon the examination of the AD Petition on DOTP from Korea, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating a less-than-fair-value investigation to determine whether imports of DOTP from Korea are being, or are likely to be, sold in the United States at less-than-fair-value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 140 days after the date of this initiation.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.26 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.27 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to this AD investigation.28

    26See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    27See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice).

    28Id. at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    Petitioner named three companies as producers/exporters of DOTP from Korea.29 Following the standard practice in AD investigations involving market economy countries, in the event the Department determines that the number of companies is large and it cannot individually examine each company based upon the Department's resources, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States (“HTSUS”) numbers listed in the “Scope of Investigation” in Appendix I. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties with access to information protected by APO within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of this investigation. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments.

    29See Petition, at 3-4 and Exhibits GEN-7 and GEN-10.

    Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5 p.m. EDT, by the dates noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.

    Distribution of Copies of the Petition

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the government of Korea via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to the exporters named in the Petition, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determination by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of DOTP from Korea are materially injuring or threatening material injury to a U.S. industry.30 A negative ITC determination will result in the investigation being terminated; 31 otherwise, the investigation will proceed according to statutory and regulatory time limits.

    30See section 733(a) of the Act.

    31Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 32 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.33 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in this investigation.

    32See 19 CFR 351.301(b).

    33See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. EDT on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this investigation.

    Certification Requirements

    Any party submitting factual information in an AD or countervailing duty (“CVD”) proceeding must certify to the accuracy and completeness of that information.34 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 35 The Department intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    34See section 782(b) of the Act.

    35See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to section 777(i) of the Act.

    Dated: July 20, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is dioctyl terephthalate (“DOTP”), regardless of form. DOTP that has been blended with other products is included within this scope when such blends include constituent parts that have not been chemically reacted with each other to produce a different product. For such blends, only the DOTP component of the mixture is covered by the scope of this investigation.

    DOTP that is otherwise subject to this investigation is not excluded when commingled with DOTP from sources not subject to this investigation. Commingled refers to the mixing of subject and non-subject DOTP. Only the subject component of such commingled products is covered by the scope of the investigation.

    DOTP has the general chemical formulation C6H4(C8H17COO)2 and a chemical name of “bis (2-ethylhexyl) terephthalate” and has a Chemical Abstract Service (“CAS”) registry number of 6422-86-2. Regardless of the label, all DOTP is covered by this investigation.

    Subject merchandise is currently classified under subheading 2917.39.2000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Subject merchandise may also enter under subheadings 2917.39.7000 or 3812.20.1000 of the HTSUS. While the CAS registry number and HTSUS classification are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    [FR Doc. 2016-17806 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-028] Hydrofluorocarbon Blends and Components Thereof From the People's Republic of China: Notice of Correction to the Final Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Dennis McClure, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5973.

    SUPPLEMENTARY INFORMATION:

    On June 29, 2016, the Department of Commerce (the Department) published in the Federal Register the final determination of sales at less than fair value (LTFV) in the antidumping duty investigation of hydrofluorocarbon blends and components thereof from the People's Republic of China.1 In the Final Determination, the Department inadvertently assigned a weighted-average dumping margin of 101.82 percent to the following exporter/producer combinations: (1) Zhejiang Sanmei Chemical Industry Co., Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.) and Zhejiang Sanmei Chemical Industry Co., Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.); and (2) Zhejiang Sanmei Chemical Industry Co., Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.) and Jiangsu Sanmei Chemicals Co., Ltd.2 However, the weighted-average dumping margin should have been assigned, instead, to the following exporter/producer combinations, among others: (1) Zhejiang Sanmei Chemical Ind. Co. Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.) and Zhejiang Sanmei Chemical Ind. Co., Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.); and (2) Zhejiang Sanmei Chemical Ind. Co., Ltd. (Zhejiang Sanmei Chemical Industry Co., Ltd.) and Jiangsu Sanmei Chemicals Co., Ltd.3 As a result, we now correct the final determination of sales at LTFV as noted above.

    1See Hydrofluorocarbon Blends and Components Thereof From the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances, 81 FR 42314 (June 29, 2016) (Final Determination), and accompanying Issues and Decision Memorandum.

    2Id., 81 FR at 42316.

    3Id., at Comment 12.

    This correction to the final determination of sales at LTFV is issued and published in accordance with sections 735(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended.

    Dated: July 20, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-17816 Filed 7-27-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE762 Fisheries of the Gulf of Mexico; Southeast Data, Assessment, and Review (SEDAR); Assessment Webinar for Gulf of Mexico Data-Limited Species AGENCY:

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

    ACTION:

    Notice of SEDAR 49 assessment Webinar II for Gulf of Mexico Data-limited Species.

    SUMMARY:

    The SEDAR 49 assessment of the Gulf of Mexico Data-limited Species will consist of a data workshop, a review workshop, and a series of assessment Webinars.

    DATES:

    The SEDAR 49 assessment Webinar II will be held on August 25, 2016, from 10 a.m. to 12 p.m., to view the agenda, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The Webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (See Contact Information Below) to request an invitation providing Webinar access information. Please request Webinar invitations at least 24 hours in advance of each Webinar.

    SEDAR address: 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405.

    FOR FURTHER INFORMATION CONTACT:

    Julie A. Neer, SEDAR Coordinator; (843) 571-4366 or email: [email protected]

    SUPPLEMENTARY INFORMATION: Agenda

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing Webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion in the Assessment Process Webinars are as follows:

    1. Using datasets and initial assessment analysis recommended from the Data Workshop, panelists will employ assessment models to evaluate stock status, estimate population benchmarks and management criteria, and project future conditions.

    2. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES) at least 10 business days prior to each workshop.

    Note: The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 22, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-17812 Filed 7-27-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Reporting Requirements for Sea Otter Interactions With the Pacific Sardine Fishery; Coastal Pelagic Species Fishery Management Plan AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before September 26, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Joshua Lindsay, (562) 980-4034 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for extension of a currently approved information collection.

    On May 30, 2007, the National Marine Fisheries Service (NMFS) published a Final Rule (72 FR 29891) implementing a requirement under the Coastal Pelagic Species Fishery Management Plan (CPS FMP) to report any interactions that may occur between a CPS vessel and/or fishing gear and sea otters.

    Specifically, these reporting requirements are:

    1. If a southern sea otter is entangled in a net, regardless of whether the animal is injured or killed, such an occurrence must be reported within 24 hours to the Regional Administrator, NMFS West Coast Region.

    2. While fishing for CPS, vessel operators must record all observations of otter interactions (defined as otters within encircled nets or coming into contact with nets or vessels, including but not limited to entanglement) with their purse seine net(s) or vessel(s). With the exception of an entanglement, which will be initially reported as described in #2 above, all other observations must be reported within 20 days to the Regional Administrator.

    When contacting NMFS after an interaction, fishermen are required to provide information regarding the location, specifically latitude and longitude, of the interaction and a description of the interaction itself. Descriptive information of the interaction should include: Whether or not the otters were seen inside or outside the net; if inside the net, had the net been completely encircled; did contact occur with net or vessel; the number of otters present; duration of interaction; otter's behavior during interaction; and, measures taken to avoid interaction.

    II. Method of Collection

    The information will be collected on forms submitted by mail, phone, facsimile or email.

    III. Data

    OMB Control Number: 0648-0566.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a currently approved collection).

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 2.

    Estimated Time per Response: 15 minutes.

    Estimated Total Annual Burden Hours: 1.

    Estimated Total Annual Cost to Public: $10.00 in reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: July 25, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-17880 Filed 7-27-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Scientific Integrity Office; Notice of Availability and Request for Public Comment AGENCY:

    Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice of availability and request for public comment.

    SUMMARY:

    NOAA Research (OAR) publishes this notice on behalf of the NOAA Scientific Integrity Office to announce the availability of the draft Procedural Handbook to accompany NOAA Administrative Order 202-735D, the scientific integrity policy, for public comment. The draft procedural handbook provides revised NOAA procedures to respond to allegations of scientific and research misconduct.

    DATES:

    Comments on the draft Procedural Handbook must be received by August 29, 2016.

    ADDRESSES:

    The draft Procedural Handbook is available on the NOAA Scientific Integrity Commons Web site at: http://nrc.noaa.gov/ScientificIntegrityCommons. The public is encouraged to submit comments electronically through http://goo.gl/forms/v0uCTvbNo3ueWWc92. For individuals who do not have access to the internet, comments may be submitted in writing to: NOAA Scientific Integrity Office c/o Patricia Hathaway, 1315 East-West Highway, Silver Spring, Maryland 20910.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Cynthia Decker, NOAA Scientific Integrity Officer, NOAA 1315 East-West Highway, Silver Spring, Maryland 20910. Phone: 301 734-1459, during normal business hours of 9 a.m. to 5 p.m. Eastern Time, Monday through Friday, or, visit the NOAA Scientific Integrity Commons at http://nrc.noaa.gov/ScientificIntegrityCommons.

    SUPPLEMENTARY INFORMATION:

    The Presidential Memorandum on Scientific Integrity, the Office of Science and Technology Policy guidance memorandum on scientific integrity, and NOAA's 2011 Scientific Integrity policy call for the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes. The draft Procedural Handbook that accompanies NOAA's Scientific Integrity Policy (in NOAA Administrative Order 202-735D) supports these principals by outlining how NOAA will respond to allegations of misconduct. The draft Procedural Handbook is a proposed revision of the original handbook put in place in 2011. This draft Procedural Handbook provides the revised procedures NOAA will follow in responding to allegations of Scientific and Research Misconduct by NOAA employees, NOAA contractors, and external recipients of NOAA financial assistance awards for scientific or research activities. This Procedural Handbook should be read in conjunction with NOAA's Scientific Integrity Policy in NOAA Administrative Order 202-735D.

    Dated: July 25, 2016. Jason Donaldson, Chief Financial Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration.
    [FR Doc. 2016-17930 Filed 7-27-16; 8:45 am] BILLING CODE 3510-KD-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No. CFPB-2016-0026] RIN 3170-AA40 Request for Information on Payday Loans, Vehicle Title Loans, Installment Loans, and Open-End Lines of Credit Correction

    In notice document 2016-13492, appearing on pages 47781 through 47789 in the issue of Friday, July 22, 2016, make the following correction:

    On page 47781, in the second column, on the sixth line, “October 14, 2016” should read “November 7, 2016”.

    [FR Doc. C1-2016-13492 Filed 7-27-16; 8:45 am] BILLING CODE 1505-01-D
    DEPARTMENT OF DEFENSE Department of the Air Force [Docket ID: USAF-2016-HQ-0004] Privacy Act of 1974; System of Records AGENCY:

    Department of the Air Force, DoD.

    ACTION:

    Notice to delete a system of records.

    SUMMARY:

    The Department of the Air Force proposes to delete one system of records notice from its inventory of record systems subject to the Privacy Act of 1974, as amended. The system of records notice is F035 AF SAFPA D, entitled “Your Guardians of Freedom User Database.”

    DATES:

    Comments will be accepted on or before August 29, 2016. This proposed action will be effective on the day following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    * Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    * Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Mr. LaDonne L. White, Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information Officer, ATTN: SAF/CIO A6, 1800 Air Force Pentagon, Washington, DC 20330-1800, or by phone at (571) 256-2515.

    SUPPLEMENTARY INFORMATION:

    The Department of the Air Force systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at the Defense Privacy, Civil Liberties and Transparency Division Web site at http://dpcld.defense.gov/. The Department of the Air Force proposes to delete one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.

    Dated: July 25, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. Deletion: F035 AF SAFPA D

    Your Guardians of Freedom User Database (November 18, 2003, 68 FR 65038)

    Reason: SAF/PA no longer maintains the Your Guardians of Freedom database. The program ended in 2006 and the database was decommissioned. The records retention period was for one year (2007), after which all remaining records were deleted in 2008.

    [FR Doc. 2016-17871 Filed 7-27-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Army, U.S. Army Corps of Engineers Withdrawal of Notice of Intent To Prepare an Environmental Impact Statement for Western Lake Erie Basin, Blanchard River Watershed Study AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice of withdrawal.

    SUMMARY:

    The purpose of this notice is to inform the public that the non-Federal sponsor (Hancock County, Ohio) for the Blanchard River Watershed Study has decided to complete the design and construction of the proposed project. Therefore, the current NEPA process with the Corps of Engineers acting as the lead agency has been terminated, and notice to prepare an Environmental Impact Statement (EIS) and notice of availability are withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Michael D. Pniewski, Project Manager, 1776 Niagara Street, Buffalo, NY 14207-3199, Telephone 419-726-9121; electronic mail: [email protected]

    SUPPLEMENTARY INFORMATION:

    On November 30, 2012, (77 FR 71404), the United States Army Corps of Engineers (USACE) in partnership with Hancock County (County) announced its intent to prepare an EIS in accordance with the National Environmental Policy Act of 1969 (NEPA) to evaluate proposed flood risk management and riparian wetland habitat restoration measures in the Blanchard River Watershed in the vicinity of the city of Findlay, Ohio. On April 10, 2015 (80 FR 19316), USACE and the County announced the availability of the Draft EIS (EIS No. 20150102). The Draft EIS evaluated the potential environmental impacts associated with the proposed Federal action and its reasonable alternatives. The purpose of the project was to reduce the risk of flooding and improve the overall quality of life for the residents of the Findlay area. Subsequent to the release of the Draft Detailed Project Report and EIS, the County has decided to proceed with the design and construction of the project without USACE involvement.

    Adam J. Czekanski, Lieutenant Colonel, Corps of Engineers, District Engineer.
    [FR Doc. 2016-17828 Filed 7-27-16; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2484-018; 2464-015] Gresham Municipal Utilities; Notice of Availability of Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC) regulations, 18 CFR part 380 (Order No. 486, 52 Federal Register 47897), the Office of Energy Projects has reviewed applications for subsequent licenses for the Upper Red Lake Dam Hydroelectric Project (FERC Project No. 2484-018) and the Weed Dam Hydroelectric Project (FERC Project No. 2464-015), located on the Red River in Shawano County, Wisconsin. The projects do not occupy federal land.

    The environmental assessment analyzes the potential environmental effects of continuing to operate the projects, and concludes that issuing subsequent licenses for the projects, with appropriate environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment.

    A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter either docket number, excluding the last three digits in the docket number field, to access the document. For assistance, contact FERC Online Support at [email protected], at (866) 208-3676 (toll free), or (202) 502-8659 (TTY).

    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to these or other pending projects. For assistance, contact FERC Online Support.

    Any comments should be filed within 30 days from the date of this notice. The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support.

    Although the Commission strongly encourages electronic filing, documents may also be paper-filed. In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. Please put docket number(s) “P-2464-015” and/or “P-2484-018,” as appropriate, on the first page of your response.

    For further information, please contact Chelsea Hudock by phone at (202) 502-8448, or by email at [email protected]

    Dated: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17852 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. P-13212-005; Project No. P-13212-005] Kenai Hydro, LLC ; Notice of Scoping Meetings and Environmental Site Review and Soliciting Scoping Comments

    Take notice that the following hydroelectric application has been filed with Commission and is available for public inspection:

    a. Type of Application: Application for Original License for Major Project—Unconstructed.

    b. Project No.: 13212-005.

    c. Date filed: April 18, 2016.

    d. Applicant: Kenai Hydro, LLC.

    e. Name of Project: Grant Lake Hydroelectric Project.

    f. Location: On Grant Creek, near the Town of Moose Pass, Kenai Peninsula Borough, Alaska. The proposed project would occupy 1,741.3 acres of federal land within the Chugach National Forest managed by the U.S. Forest Service.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).

    h. Applicant Contact: Mike Salzetti, Manager of Fuel Supply & Renewable Energy Development, 280 Airport Way, Kenai, AK 99611. (907) 283-2375.

    i. FERC Contact: Kenneth Hogan, [email protected], 202-502-8434.

    j. Deadline for filing scoping comments: October 10, 2016.

    The Commission strongly encourages electronic filing. Please file scoping comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-13212-005.

    The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.

    k. This application is not ready for environmental analysis at this time.

    l. The proposed Grant Lake Hydroelectric Project would consist of: (1) An intake structure within Grant Lake; (2) a 3,300-foot-long tunnel; (3) a 72-inch-diameter, 150-foot-long, steel penstock; (4) a power house containing two 2.5-megawatt Francis turbine/generator units; (5) a 95-foot-long open channel tailrace; (6) a 3.6-acre tailrace detention pond; (6) a 1.1-mile-long, 115-kilovolt transmission line; (7) two miles of project access road; and (8) appurtenant facilities.

    m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support. Copies are also available for inspection and reproduction at the Kenai Community Library at 163 Main St Loop, Kenai, AK 99611 and at the Homer Electric Office at 280 Airport Way, Kenai, AK 99611.

    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    n. Scoping Process:

    The Commission intends to prepare an Environmental assessment (EA) on the project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action.

    Scoping Meetings

    FERC staff will conduct one agency scoping meeting and one public meeting. The agency scoping meeting will be held during business hours and will focus on resource agency and non-governmental organization (NGO) concerns, while the public scoping meeting is primarily for public input and will be held in the evening. All interested individuals, organizations, and agencies are invited to attend one or both of the meetings, and to assist the staff in identifying the scope of the environmental issues that should be analyzed in the EA. The times and locations of these meetings are as follows:

    Evening Scoping Meeting

    Date and Time: Wednesday, September 7, at 7:00 p.m. (Local Time).

    Location: Moose Pass Community Hall, Mile 29.5 Seward Highway, Moose Pass, AK 99631.

    Daytime Scoping Meeting

    Date and Time: Thursday, September 8, at 10:00 a.m. (Local Time).

    Location: Moose Pass Community Hall, Mile 29.5 Seward Highway, Moose Pass, AK 99631.

    Copies of the Scoping Document (SD3) outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list and to Kenai Hydro's distribution list. Copies of the SD3 will be available at the scoping meetings and may be viewed on the Web at http://www.ferc.gov using the “eLibrary” link (see item m above).

    Environmental Site Review

    The Applicant and FERC staff will conduct a project Environmental Site Review beginning at 8:00 a.m. on September 7, 2016. All participants interested in the environmental site review and hiking into the location of the proposed powerhouse should meet at the Moose Pass Community Hall on the Seward Highway at mile 29.5 by 8 a.m. on September 7, 2016. Participants should be in good health and prepared/able to hike without assistance for 5 miles in unimproved trail conditions with a 200 yard section of off trail hiking in a heavily forested area. The elevation gain for the hike is approximately 200 feet. Participants should also pack their own lunch, snacks and water, wear rugged footwear, and be prepared for inclement and potentially cold weather conditions. Anyone with questions about the site visit should contact Mike Salzetti at (907) 283-2375 or [email protected] Those individuals planning to participate in the site visit should notify Mr. Salzetti of their intent, no later than August 26, 2016.

    Objectives

    At the scoping meetings, the staff will: (1) Summarize the environmental issues tentatively identified for analysis in the EA; (2) solicit from the meeting participants all available information, especially quantifiable data, on the resources at issue; (3) encourage statements from experts and the public on issues that should be analyzed in the EA, including viewpoints in opposition to, or in support of, the staff's preliminary views; (4) determine the resource issues to be addressed in the EA; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis.

    Procedures

    The meetings are recorded by a stenographer and become part of the formal record of the Commission proceeding on the project.

    Individuals, organizations, and agencies with environmental expertise and concerns are encouraged to attend the meeting and to assist the staff in defining and clarifying the issues to be addressed in the EA.

    Dated: July 22, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17855 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL16-99-000] Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On July 21, 2016, the Commission issued an order in Docket No. EL16-99-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of the Midcontinent Independent System Operator, Inc.'s Transmission, Energy and Operating Reserve Markets Tariff. Midcontinent Independent System Operator, Inc., 156 FERC ¶ 61,061 (2016).

    The refund effective date in Docket No. EL16-99-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Dated: July 21, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-17836 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM16-17-000] Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Notice of the Technical Workshop on the Draft Data Dictionary Attached to the Data Collection for Analytics and Surveillance and Market-Based Rate Purposes Notice of Proposed Rulemaking

    The Notice of Proposed Rulemaking on Data Collection for Analytics and Surveillance and Market-Based Rate Purposes (NOPR) issued today in Docket No. RM16-17 proposes to revise the Commission's regulations to collect certain data for analytics and surveillance purposes from market-based rate (MBR) sellers and entities trading virtual products or holding financial transmission rights and to change certain aspects of the substance and format of information submitted for MBR purposes.1 In the NOPR, the Commission also states that a data dictionary posted to the Commission's Web site would define the framework to be followed by users in submitting information for inclusion in the relational database and that staff will hold technical workshops on the data dictionary and the submittal process.2 This notice announces a technical workshop to review the draft data dictionary attached to the NOPR.

    1Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, 156 FERC ¶61, 045 (2016).

    2Id. at P 15.

    All interested parties are invited to attend. The workshop will be held in Washington, DC, on August 11, 2016 from 9:00 a.m. to 4:00 p.m. at FERC headquarters in the Commission Meeting Room, 888 First Street NE., Washington, DC. For those unable to attend in person, access to the workshop sessions will be available by webcast.

    The workshop is intended to provide a forum for interactive, detailed discussion of the elements contained in the sample data dictionary. Commission staff will lead the workshop. The agenda for the workshop is attached. Notes from the workshop will be posted on FERC.gov.

    Due to the detailed, substantive nature of the subject matter, parties interested in actively participating in the discussion are encouraged to attend in person. All interested parties (whether attending in person or via webcast) are asked to register online at https://www.ferc.gov/whats-new/registration/08-11-16-form.asp. There is no registration fee.

    Those wishing to actively participate in the discussion by telephone during the workshop should send a request for a telephone line to [email protected] by close of business on Friday, August 5th, with the subject line: RM16-17 NOPR Workshop Teleconference Request.

    Commission workshops are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to [email protected] or call toll free 1-866-208-3372 (voice) or 202-502-8659 (TTY); or send a fax to 202-208-2106 with the required accommodations.

    For additional information, please contact David Pierce of FERC's Office of Enforcement at (202) 502-6454 or send an email to [email protected].

    Dated: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17857 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL16-91-000] Southwest Power Pool, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On July 21, 2016, the Commission issued an order in Docket No. EL16-91-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of certain aspects of Southwest Power Pool, Inc.'s Open Access Transmission Tariff. Southwest Power Pool, Inc., 156 FERC ¶ 61,059 (2016).

    The refund effective date in Docket No. EL16-91-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Dated: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17851 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC16-155-000.

    Applicants: Odell Wind Farm, LLC, Algonquin Power (Odell Holdings) Inc., Odell SponsorCo, LLC, Odell Holdings, LLC, Enel Kansas, LLC.

    Description: Application for Authorization Under Section 203 of the Federal Power Act for the Disposition of Jurisdictional Facilities, Request for Expedited Consideration and Confidential Treatment of Odell Wind Farm, LLC, et al.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5116.

    Comments Due: 5 p.m. ET 8/12/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-3246-002; ER10-2475-006; ER10-2474-006.

    Applicants: PacifiCorp, Nevada Power Company, Sierra Pacific Power Company.

    Description: The BHE Renewables Companies submit tariff filing per 35.19a(b): Refund Report to be effective N/A.

    Filed Date: 7/21/16.

    Accession Number: 20160721-5130.

    Comments Due: 5 p.m. ET 8/11/16.

    Docket Numbers: ER14-1548-007.

    Applicants: Copper Mountain Solar 3, LLC.

    Description: Compliance Filing reflecting results of Commission determination with regard to horizontal market power analysis in the APS Triennial Proceeding of Copper Mountain Solar 3, LLC.

    Filed Date: 10/15/14.

    Accession Number: 20141015-5184.

    Comments Due: 5 p.m. ET 8/1/16.

    Docket Numbers: ER15-13-006.

    Applicants: Transource Wisconsin, LLC.

    Description: Compliance filing: Transource Wisconsin Formula Compliance Filing to be effective 12/1/2014.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5074.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-1832-001.

    Applicants: Entergy Louisiana, LLC.

    Description: Tariff Amendment: ELL Nine Mile 6 Supplemental Reactive to be effective 8/1/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5082.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2007-000.

    Applicants: Saguaro Power Company, a Limited Partnership.

    Description: Supplement to June 24, 2016 Saguaro Power Company, a Limited Partnership submits tariff filing.

    Filed Date: 7/21/16.

    Accession Number: 20160721-5129.

    Comments Due: 5 p.m. ET 8/11/16.

    Docket Numbers: ER16-2135-001.

    Applicants: Terrapin Energy LLC.

    Description: Tariff Amendment: Amendment to Application for MBR to be effective 9/1/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5136.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2265-000.

    Applicants: C.P. Crane LLC.

    Description: § 205(d) Rate Filing: Reactive Rate Tariff to be effective 1/5/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5069.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2266-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2016-07-22_SA 2931 ATC-Wisconsin Power and Light E&P (J390) to be effective 7/23/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5081.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2267-000.

    Applicants: Southwestern Public Service Company.

    Description: § 205(d) Rate Filing: SPS-RBEC-GSEC-649 0.1.0-NOC to be effective 9/21/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5094.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2268-000.

    Applicants: Arizona Public Service Company.

    Description: Compliance filing: OATT Modification Pursuant to Order No. 827 to be effective 9/21/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5096.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2269-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: Amended LGIA Chevron Power Holdings Kern River Cogeneration Facility Project to be effective 7/23/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5098.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2270-000.

    Applicants: Pinetree Power-Tamworth, LLC.

    Description: § 205(d) Rate Filing: Notice of Succession to be effective 9/21/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5139.

    Comments Due: 5 p.m. ET 8/12/16.

    Docket Numbers: ER16-2271-000.

    Applicants: ENGIE Resources LLC.

    Description: § 205(d) Rate Filing: Notice of Succession to be effective 9/21/2016.

    Filed Date: 7/22/16.

    Accession Number: 20160722-5143.

    Comments Due: 5 p.m. ET 8/12/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: July 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-17877 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. AD16-2-000] Billing Procedures for Annual Charges for the Costs of Other Federal Agencies for Administering Part I of the Federal Power Act; Notice Reporting Costs for Other Federal Agencies' Administrative Annual Charges for Fiscal Year 2015

    1. The Federal Energy Regulatory Commission (Commission) is required to determine the reasonableness of costs incurred by other Federal agencies (OFAs) 1 in connection with their participation in the Commission's proceedings under the Federal Power Act (FPA) Part I 2 when those agencies seek to include such costs in the administrative charges licensees must pay to reimburse the United States for the cost of administering Part I.3 The Commission's Order on Remand and Acting on Appeals of Annual Charge Bills4 determined which costs are eligible to be included in the administrative annual charges and it established a process for Commission review of future OFA cost submittals. This order established a process whereby the Commission would annually request each OFA to submit cost data, using a form 5 specifically designed for this purpose. In addition, the order established requirements for detailed cost accounting reports and other documented analyses, which explain the cost assumptions contained in the OFAs' submissions.

    1 The OFAs include: The U.S. Department of the Interior (Bureau of Indian Affairs, Bureau of Land Management, Bureau of Reclamation, National Park Service, U.S. Fish and Wildlife Service, Office of the Solicitor, Office of Environmental Policy & Compliance, Office of Hearings and Appeals and Office of Policy Analysis); the U.S. Department of Agriculture (U.S. Forest Service); the U.S. Department of Commerce (National Marine Fisheries Service); and the U.S. Army Corps of Engineers.

    2 16 U.S.C. 794-823d (2012).

    3See id. 803(e)(1) and 42 U.S.C. 7178.

    4 107 FERC ¶ 61,277, order on reh'g, 109 FERC ¶ 61,040 (2004).

    5 Other Federal Agency Cost Submission Form, available at https://www.ferc.gov/docs-filing/forms.asp#ofa.

    2. The Commission has completed its review of the forms and supporting documentation submitted by the U.S. Department of the Interior (Interior), the U.S. Department of Agriculture (Agriculture), and the U.S. Department of Commerce (Commerce) for fiscal year 2015. This notice reports the costs the Commission included in its administrative annual charges for fiscal year 2016.

    Scope of Eligible Costs

    3. The basis for eligible costs that should be included in the OFAs' administrative annual charges is prescribed by the Office of Management and Budget's (OMB) Circular A-25—User Charges and the Federal Accounting Standards Advisory Board's Statement of Federal Financial Accounting Standards (SFFAS) Number 4—Managerial Cost Accounting Concepts and Standards for the Federal Government. Circular A-25 establishes Federal policy regarding fees assessed for government services and provides specific information on the scope and type of activities subject to user charges. SSFAS Number 4 provides a conceptual framework for federal agencies to determine the full costs of government goods and services.

    4. Circular A-25 provides for user charges to be assessed against recipients of special benefits derived from federal activities beyond those received by the general public.6 With regard to licensees, the special benefit derived from federal activities is the license to operate a hydropower project. The guidance provides for the assessment of sufficient user charges to recover the full costs of services associated with these special benefits.7 SFFAS Number 4 defines full costs as the costs of resources consumed by a specific governmental unit that contribute directly or indirectly to a provided service.8 Thus, pursuant to OMB requirements and authoritative accounting guidance, the Commission must base its OFA administrative annual charge on all direct and indirect costs incurred by agencies in administering Part I of the FPA. The special form the Commission designed for this purpose, the “Other Federal Agency Cost Submission Form,” captures the full range of costs recoverable under the FPA and the referenced accounting guidance.9

    6 OMB Circular A-25 § 6.

    7 OMB Circular A-25 § 6.a.2.

    8 SFFAS Number 4 ¶ 7.

    9 To avoid the possibility of confusion that has occurred in prior years as to whether costs were being entered twice as “Other Direct Costs” and “Overhead,” the form excluded “Other Direct Costs.”

    Commission Review of OFA Cost Submittals

    5. The Commission received cost forms and other supporting documentation from the Departments of the Interior, Agriculture, and Commerce (OFAs). The Commission completed a review of each OFA's cost submission forms and supporting reports. In its examination of the OFAs' cost data, the Commission considered each agency's ability to demonstrate a system or process which effectively captured, isolated, and reported Part I costs as required by the “Other Federal Agency Cost Submission Form.”

    6. The Commission held a Technical Conference on April 7, 2016 to report its initial findings to licensees and OFAs. Representatives for several licensees and most of the OFAs attended the conference. Following the technical conference, a transcript was posted, and licensees had the opportunity to submit comments 10 to the Commission regarding its initial review.

    10See Letter from Charles R. Sensiba, Van Ness Feldman, to the Honorable Kimberly D. Bose, FERC, Docket No. AD16-2-000 (filed May 13, 2016).

    7. Written comments were filed by Idaho Falls Group (Idaho Falls). Idaho Falls generally supported the Commission's analysis but raised questions regarding certain various individual cost submissions. The Commission will address the issues raised in the Appendix to this notice.

    8. After additional reviews, full consideration of the comments presented, and in accordance with the previously cited guidance, the Commission accepted as reasonable any costs reported via the cost submission forms that were clearly documented in the OFAs' accompanying reports and/or analyses. These documented costs will be included in the administrative annual charges for fiscal year 2016.

    Summary of Reported & Accepted Costs for Fiscal Year 2015 [Figure 1] Municipal Reported Accepted Non-municipal Reported Accepted Total Reported Accepted Department of Interior Bureau of Indian Affairs 273,348 214,243 385,922 334,374 659,270 548,617 Bureau of Land Management 162,847 159,428 5,007 3,089 167,854 162,517 Bureau of Reclamation 20,680 20,680 20,680 20,680 National Park Service 301,785 301,785 480,652 480,651 782,437 782,437 U.S. Fish and Wildlife Service 754,732 753,664 938,031 933,919 1,692,763 1,687,582 U.S. Geological Survey Office of the Solicitor 5,684 5,684 110,699 110,699 116,383 116,383 Office of the Environmental Policy & Compliance 47,054 47,054 106,266 106,266 153,320 153,320 Office of Hearings and Appeals 763 2,997 3,760 Office of Policy Analysis Department of Agriculture U.S. Forest Service 653,758 611,610 1,443,838 1,351,324 2,097,586 1,962,933 Department of Commerce National Marine Fisheries Service 1,142,203 948,320 789,673 449,589 1,931,876 1,397,909 Total 3,342,174 3,041,788 4,283,755 3,790,592 7,625,929 6,832,378

    9. Figure 1 summarizes the total reported costs incurred by Interior, Agriculture, and Commerce with respect to each OFA's participation in administering Part I of the FPA. Additionally, Figure 1 summarizes the reported costs that the Commission determined were clearly documented and accepted for inclusion in its FY 2016 administrative annual charges.

    Summary Findings of Commission's Costs Review

    10. As presented in the preceding table, the Commission determined that $6,832,378 of the $7,625,929 in total reported costs were determined to be reasonable and clearly documented in the OFAs' accompanying reports and/or analyses. Based on these findings, 10% of the total reported cost was determined to be unreasonable. The Commission noted the most significant issues with regard to the insufficiency of documentation provided by the OFAs was the lack of supporting documentation to substantiate costs reported on the “Other Federal Agency Cost Submission Form” as well as the failure to segregate Municipal and Non-Municipal costs.

    11. The cost reports that the Commission determined were clearly documented and supported could be traced to detailed cost-accounting reports, which reconciled to data provided from agency financial systems or other pertinent source documentation. A further breakdown of these costs is included in the Appendix to this notice, along with an explanation of how the Commission determined their reasonableness.

    Points of Contact

    12. If you have any questions regarding this notice, please contact Norman Richardson at (202) 502-6219 or Raven Rodriquez at (202) 502-6276.

    Dated: July 21, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17850 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2426-049] California Department of Water Resources; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Application Type: Recreation Plan.

    b. Project No: 2426-049.

    c. Date Filed: May 20, 2016.

    d. Applicant: California Department of Water Resources.

    e. Name of Project: South SWP Hydroelectric Project.

    f. Location: The project is located on the California Aqueduct in San Bernardino, Los Angeles, San Luis Obispo, Ventura, and Kern counties, California and occupies, in part, federal lands administered by the United States Forest Service.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.

    h. Applicant Contact: Bonnie Duecker, California Department of Water Resources, 34534 116th Street East, Pearblossom, CA 93553, (661) 944-8557, [email protected].

    i. FERC Contact: Dr. Mark Ivy, (202) 502-6156, [email protected].

    j. Deadline for filing comments, motions to intervene, and protests: August 22, 2016.

    The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-2426-049.

    The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.

    k. Description of Request: California Department of Water Resources requests Commission approval of a proposed recreation plan for the project. The recreation plan provides a detailed description of all existing recreation amenities and facilities in the immediate vicinity of Pyramid Lake, Silverwood Lake, and Quail Lake, which are components of the project. The recreation plan also includes visitation data, concessionaire reports, and site plan drawings.

    l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call 1-866-208-3676 or email [email protected], for TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item (h) above. Agencies may obtain copies of the application directly from the applicant.

    m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214, respectively. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    o. Filing and Service of Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person commenting, protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis. Any filing made by an intervenor must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 385.2010.

    Dated: July 22, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-17859 Filed 7-27-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM16-18-000] Cyber Systems in Control Centers AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Notice of Inquiry.

    SUMMARY:

    In this Notice of Inquiry, the Federal Energy Regulatory Commission seeks comment on possible modifications to the Critical Infrastructure Protection Reliability Standards regarding the cybersecurity of Control Centers used to monitor and control the bulk electric system in real time.

    DATES:

    Comments are due September 26, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number and in accordance with the requirements posted on the Commission's Web site, http://www.ferc.gov. Comments may be submitted by any of the following methods:

    Agency Web site: Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format, at http://www.ferc.gov/docs-filing/efiling.asp.

    Mail/Hand Delivery: Those unable to file electronically must mail or hand deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT:

    David DeFalaise (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8180, [email protected] Robert T. Stroh (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8473, [email protected] SUPPLEMENTARY INFORMATION:

    1. In this Notice of Inquiry, pursuant to section 215 of the Federal Power Act (FPA),1 the Commission seeks comment on the need for, and possible effects of, modifications to the Critical Infrastructure Protection (CIP) Reliability Standards regarding the cybersecurity of Control Centers used to monitor and control the bulk electric system in real time.2 Cyber systems are used extensively for the operation and maintenance of interconnected transmission networks.3 A 2015 cyberattack on the electric grid in Ukraine is an example of how cyber systems used to operate and maintain interconnected networks, unless adequately protected, may be vulnerable to cyberattack. While certain controls in the CIP Reliability Standards may reduce the risk of such attacks,4 the Commission seeks comment on whether additional controls should be required.

    1 16 U.S.C. 824o. Section 215(a)(3) of the FPA defines “Reliability Standard” to include “. . . requirements for the operation of existing bulk-power system facilities, including cybersecurity protection . . .”

    2 NERC defines “Control Center” as “[o]ne or more facilities hosting operating personnel that monitor and control the Bulk Electric System (BES) in realtime to perform the reliability tasks, including their associated data centers . . . .” NERC Glossary of Terms Used in Reliability Standards (May 17, 2016) at 33 (NERC Glossary).

    3 Cyber systems are referred to as “BES Cyber Systems” in the CIP Reliability Standards. The NERC Glossary defines BES Cyber Systems as “One or more BES Cyber Assets logically grouped by a responsible entity to perform one or more reliability tasks for a functional entity.” NERC Glossary at 15. The NERC Glossary defines “BES Cyber Asset” as “A Cyber Asset that if rendered unavailable, degraded, or misused would, within 15 minutes of its required operation, misoperation, or non-operation, adversely impact one or more Facilities, systems, or equipment, which, if destroyed, degraded, or otherwise rendered unavailable when needed, would affect the reliable operation of the Bulk Electric System. Redundancy of affected Facilities, systems, and equipment shall not be considered when determining adverse impact. Each BES Cyber Asset is included in one or more BES Cyber Systems.” Id.

    4See, e.g., Reliability Standard CIP-005-5 (Electronic Security Perimeter(s)), Requirement R2, which protects against unauthorized interactive remote access; Reliability Standard CIP-006-6 (Physical Security of BES Cyber Systems), Requirement R2, which protects against unauthorized physical access and Reliability Standard CIP-007-6 (System Security Management), Requirement R3, which protects against malware.

    2. Specifically, as discussed below, the Commission seeks comment on possible modifications to the CIP Reliability Standards—and any potential impacts on the operation of the Bulk-Power System resulting from such modifications—to address the following matters: (1) Separation between the Internet and BES Cyber Systems in Control Centers performing transmission operator functions; and (2) computer administration practices that prevent unauthorized programs from running, referred to as “application whitelisting,” for cyber systems in Control Centers.

    I. Background

    3. On January 28, 2008, the Commission approved an initial set of eight CIP Reliability Standards pertaining to cybersecurity.5 In addition, the Commission directed NERC to develop certain modifications to the CIP Reliability Standards. Since 2008, the CIP Reliability Standards have undergone multiple revisions to address Commission directives and respond to emerging cybersecurity issues.

    5Mandatory Reliability Standards for Critical Infrastructure Protection, Order No. 706, 122 FERC ¶ 61,040, denying reh'g and granting clarification, Order No. 706-A, 123 FERC ¶ 61,174 (2008), order on clarification, Order No. 706-B, 126 FERC ¶ 61,229 (2009), order denying clarification, Order No. 706-C, 127 FERC ¶ 61,273 (2009).

    4. On December 23, 2015, three regional electric power distribution companies in Ukraine experienced a cyberattack resulting in power outages that affected at least 225,000 customers. An analysis conducted by a team from the Electricity Information Sharing and Analysis Center (E-ISAC) and SANS Industrial Control Systems (SANS ICS) observed that “the cyber attacks in Ukraine are the first publicly acknowledged incidents to result in power outages.” 6

    6 E-ISAC, Analysis of the Cyber Attack on the Ukrainian Power Grid (March 18, 2016) at 3, http://www.nerc.com/pa/CI/ESISAC/Documents/E-ISAC_SANS_Ukraine_DUC_18Mar2016.pdf.

    5. On February 25, 2016, the U.S. Department of Homeland Security (DHS) Industrial Control Systems Cyber Emergency Response Team issued an “Alert” in response to the Ukraine incident.7 The Alert stated that the cyberattack was sophisticated and well planned. The Alert reported that the cyberattacks at each company occurred within 30 minutes of each other and affected multiple central and regional facilities. The Alert also explained that during the cyberattacks:

    7See Department of Homeland Security, Alert (IR-ALERT-H-16-056-01) Cyber-Attack Against Ukrainian Critical Infrastructure (February 25, 2016) (Alert), https://ics-cert.us-cert.gov/alerts/IR-ALERT-H-16-056-01.

    malicious remote operation of the breakers was conducted by multiple ext